# Appendix — Kingston Constructors, Inc. v. Washington Metropolitan Area Transit Authority > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_0549%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1997 - **Citation:** 520 U.S. 1274 ## Text li EDITOR'S NOTE THE FOLLOWING PAGES WERE POOR HARD COPY AT THE TIME OF FILMING. IF AND WHEN A BETTER COPY CAN BE OBTAINED, A NEW FICHE WILL BE ISSUED. T t N s ORIGINAL PAGINATION IS NOT CONTINUOUS. ~_ Supreme Court, U.S. V FILED BE1GBO6 AR 9 1997 vitis In the SUPREME COURT OF THE UNITED STATES October Term, 1997 KINGSTON CONSTRUCTORS INC. Petitioner, Vv. WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY Respondent. Appendix to Petition for Writ of Certiorari To the Supreme Court of California APPENDIX TO PETITION FOR WRIT OF CERTIORARI Ronald K. Losch, Attormey for Petitioner KINGSTON CONSTRUCTORS INC. INDEX TO APPENDIX Clerk’s Default, California Superior Court, County of Los Angeles, Case No. BC056254, Entered on October 19, 1992 Default Judgment, California Superior Court, County of Los Angeles, Case No. BC056254, Entered on May 5, 1994 Order Vacating Default Judgment , California Superior Court, County of Los Angeles, Case No. BC056254, Entered on September 1, 1994 Order Denying Motion for Reconsideration, order Vacating Default Judgment, California Superior Court, County of Los Angeles, Case No. BC068273, Entered on September 1, 1994 Opinion, Division Two of the Second Appellate District of the Court of Appeal of California, Entered April 3, 1996 Opinion, Supreme Court of California, Case No. $053577, Entered on January 9, 1997 Washington Metropolitan Area Transit Authority Compact, (Pub.L. No. 89-774 (Vol. 6, 1966) Stat. 1324-1325.) Page App. 1 App. 4 App. 7 App. 9 App. 11 App. 20 App. 34 App. 2 . ‘ LE. a d THE FEDERALIST NO. 81 App. 64 THE FEDERALIST NO. 82 App. 74 bi Oy ech a re, Cammanat e App. 1 Clerk’s Default, California Superior Court, County of Los Angeles, Case No. BC056254, Entered on October 19, 1992 . - LAW OFFICES OF JULIAN A. POLLOK, A P.C. 1000 WILSHIR® BOULEVARD, SUITE 650 TE BAR NO. 48484- } LOS ANGELES, CA 90017 arroneay Fun pees Plaint itt SR Say STATE OF CALIFORNIA ei a 5 aml 1ED PLAINTIFF: pate ENERGY INDUSTRIES, = 7 California corporation, if 9 1992 perew, KINGSTON CONSTRUCTORS, INC., 2 4 Tl corporation, etc., et al. pet 7 . es nn REQUEST FOR wo ENTRY OF DEFAULT [7] CLERK'S JUDGMENT i COURT JUDGMENT co 7 To Te CLERC See Ps -=- - a a on(cmm)X May 28, 1992 = b by(rame): Power Energy Industries +] . : _ m a © JERinston Ares Wen hetropeliten Transit Authority, a EC = bs the court wil ener a jucigment on an affidadt under CCP SBS(D.) e Co) Enter clertrs pudguent (1) CC) for restitution of the premises onty and issue a wit of execution on the 3 apply. (CCP 1169) @ €) uncer CCP S85(a) (Compiste te cectaraton under CCP S855 on the reverse.) & CC) ter deteutt previousty entered on (cate): 2 auckgrent to be entorect aa, recite Acknowledged e Selance _ & Demand of Compiaint fa 5 a 3 [3 3 B Statement of cameges (CCP 425.11) = xs 5 (eupertor court anty)* = 2 (1) Special $ t 2 ~VCN (2) General a 3 22 ree OL Fic © interest : z = . “ees mM=En d Coste (eee reverse) 3 z -= sh ae ry og a -“P=_— ¢ eee ; ee se : > s\k chin eee ary] , @& Only damages complaint at the rate of: $ per Gay m: = Oats: August 4, 1992 iw” = JULIAN A. POLLOK ac LC frttie \e Pam Pe) RARE OF INTO OR ATTORSG ae ee "Personal injury er wrongful death actions onty. — . ep =F : 1 a (1) (4 Detaut entered as requested on (ata: OCT 19 1992 > rate: COURT Dstauit NOT entered ss requested ; ' 4 USE ONLY = (state reason): a = = 3 ~~ : 7 — 5 : (Continued on reverse) aeaca Core cme REQUEST FOR ENTRY OF DEFAULT eS SHORT TITLE POWER ENERGY INDUSTRIES v. KINGSTON Sa CONSTRUCTORS, INC., etc., et al. BCO56254 DECLARATION UNDER CCP 585.5 (Required for clerk's judgment under CCP 585(a)) 3. This action aC) *® &) ‘not on a contract or instalment sate for goods or services subject to CC 1801, etc. (Unrun Act) , bd. t= (XH) isnot on a conditional sales contract subject to CC 2981, etc. (Rees-Levering Motor Venicie Sales and Finance Act) ; c. CE) * Cy tenct on an obligation for goods, services, loans, or extensions of credit subject to CCP 300(b). ; | Gectare under penalty of perjury under the tews of ths State of California that the foregoing is true and correct. date: August 4, 1992 i J el SPYRE OR SOETT MRR OF OR CLARET) CROMATURE OF OF CLARAHT) . DECLARATION OF MAILING (CCP 587) 4 Acopy of the foregoing request was 0a not mailed to the following dafcndants whose addressees are uninown to piaintif! or plaintiffs attorney (namea): o mailed first-class, postage prepaid, in 8 sealed envelope to each Gefendant’s attorney of record, or none, to each Gsfendant at tast known sddrese (1) on (Gate): (8/4/92 (2) to (apecty names and adcreeess shown on the erweiopea): “Managing Director ‘ Washington Area Metropolitan Transit Authority, a corporation 600 Fifth Street, N.W. Washington, D.C. 20001 a ee Date: August 4, 1992 ‘ f “BARBARA K, SEVITTS ............ em WN". batts CTV8 Of SReerT meneet) x CRGRATURE OF OE CLAMEIT) MEMORANDUM OF COSTS (Required if judgment requested) A 8 ©. Process server's [008 ...... 2.02. ceeeeee b | C. Other (apecdly): ... 6.0 cece cece ee nceeees £ G] ccccccccccnccccccceccencccceseceses S @ TOTAL SORES EHH HEHEHE HEE HEHEHE EEE ns t. CJ Costs and diebu sements are waived. | em the attorney, agent, or party who claims these costa. To the best of my mnowledge end beter tits memorandum of costs te correct and theses costs were necessarily incurred in this case. ; i dectare under penalty of par jury under the laws of the State of California that the foregoing te true and correct. Ae ee oe ee Siidietete? © 5% + he as o DECLARATION OF NONMILITARY STATUS & Wo defendant named above in item tc te in the military service 90 as to be entitied to the benefits of the Soldiers’ and Sailors’ Civil Relief Act of 1940 (50 U.S.C. Appen. § S01 et seq) ‘ cectare under penalty of perjury under the taws of the State of California that the foregoing 's true and correct. ae. App. 4 Default Judgment, California Superior Court, County of Los Angeles, Case No. BC056254, Entered on May 5, 1994 1|| RONALD K. LOSCH - #98170 Attorney at Law ae 2ij 601 California Street, 21st Floor San Francisco, California 94108 F 3]| Telephone: (415) 956-8400 IL E D 4|| Attorney for Defendant \ Ave KINGSTON CONSTRUCTORS INC. ||‘ aa ‘94 8 [© 4p iene come 6 OFA CremenarTam, scney 7 3 SUPERIOR COURT FOR THE STATE OF CALIFORNIA 9 COUNTY OF LOS ANGELES Case No. BC068273 (Related to Case No. BC 056254) DEFAULT JUDGMENT BY COURT (C.C.P. §585) POWER ENERGY INDUSTRIES, plaintiff, Ss he ot So = © v, bee he KINGSTON CONSTRUCTORS INC., at al., Beer co defendants. pee ow eee St Ne Sut ae a ee a Oe ee te me? This case having been considered by the Honorable Harvey A. Schneider, Judge presiding in Department 52 of the above entitled court. It appearing that defendant Washington Metropolitan Area Transit Authority having been regularly served with process, having failed to appear and answer plaintiff's complaint filed herein, and the default of this defendant having been duly entered on October 19, 1992; on application of plaintiff's successor in interest, Kingston Constructors Inc., to the court, and after having considered the evidence, as Se IT IS ORDERED that Kingston Constructors Inc. have om BNRREBBE BESS & recovered judgment from the said defendant in the sum of 00 1 cist a aa crac acre 1|| $6,924,758.00 damages; interest to the date hereof in the amount 2\| of $259,853.00; and attorney's fees in the sum of $50,655.00; $|| together with interest on such judgment as ided law. 4}| Dated: Uc By LIAL ee | 6 7 Los Steaks Soames 8 9 10 11 12 13 14 15 Wee eUBeesess App. 7 Order Vacating Default J udgment, California Superior Court, County of Los Angeles, Case No. BC056254, Entered on September 1, 1994 SUPERIOR COURT OF CALIFORNIA, COUNTY OF Los ANGELES DATE 09/01/94 DEPT. 52 HONORABLE HARVEY A. SCHNEIDER N DIGIAMBATTISTA DEPUTY CLERK HONORABLE JUDGE PRO ELECTRONIC RECORDING MON P E GERVIN/CSL Dupuy Seenitt | C ANDREWS Sagas 8:30 am/BC068273 Presets FONER ENERGY INDUSTRIES Commt B. A. BROWN (X) KINGSTON CONSTRUCTORS, INC Ln L. P. LUBKA (X) R. K. LOSCH (Xx) K. S. GELLER (X) NATURE OF PROCEEDINGS: _ MOTION OF DEPENDANT, WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY, TO VACATE VOID AND TO QUASH SERVICE OF SUMMONS OR TO MODIFY DEFAULT JUDGMENT BY VACATING AWARD IN EXCESS OF JURISDICTION; APPLICATION OF KENNETH S. GELLER TO APPEAR AS COUNSEL PRO HAEC VICE Matter comes on for hearing and is argued. The motion to vacate the Gefault judgment as to Ramada only is granted. The aupl ication of Kenneth S. Geller to as counsel pro haec vice is granted. Order is signed and filed this date. Defendant is to give notice. MINUTES ENTERED PAGE 1 DEPT. 52 09/01/94 COUNTY CLERK App. 9 Order Denying Motion for Reconsideration, Order Vacating Default Judgment, California Superior Court, County of Los Angeles, Case No. BC068273, Entered on September 1, 1994 SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES aT 10/14/94 _ DEFT. 52 momcnams HARVEY A. SCHNEIDER MN DIGIAMBATTISTA — wer mk JUDGE FRO TEM ELECTRONIC RECORDING MONITOR ” NONE Rongeaity C ANDREWS Rapes 8:30 am/ BC068273 Preasell? POWER ENERGY INDUSTRIES Coumt RR. K. LOSCH (X) xINCSTON CONSTRUCTORS, INC MraSvcatat NATURE OF PROCEEDINGS: MOTION OF DEFENDANT AND JUDGMENT ASSIGNEE KINGSTON CONSTRUCTORS INC. FOR RECONSIDERATION OF ORDER VACATING JUDGMENT; Matter comes on for hearing and is argued. The motion for reconsideration is denied. Notice is waived. MINUTES ENTERED PAGE i DEPT. 52 10/14/94 COUNTY Wingy App. 11 Opinion, Division Two of the Second Appellate District of the Court of Appeal of California, entered April 3, 1996, KINGSTON CONSTRUCTORS, INC. v. WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY 49 Cal.App.4th 257; _ Cal.Rptr.2d__ [Apr. 1996] (No. B088727. Second Dist. Div:, Two. Apr. 3, 1996.] KINGSTON CONSTRUCTORS, INC., Plaintiff and Appellant, v. WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY, Defendant and Respondent. COUNSEL Ronald K. Losch for Plaintiff and Appellant. Mayer, Brown & Platt, Kenneth S. Geller and Donald M. Falk, for Defendant and Respondent. OPINION NOTT, J.--Appellant Kingston Constructors, Inc. (Kingston) appeals from an order vacating a judgment that had been taken by default against respondent Washington Metropolitan Area Transit Authority (WMATA). The trial court concluded that it lacked subject matter jurisdiction over this case. We agree and affirm the order. FACTS AND PROCEDURAL HISTORY Our focus will be on subject matter jurisdiction, which does not require a long factual discussion. Therefore, we will briefly review the background facts. WMATA is an interstate agency created by the United States Congress, Maryland and Virginia pursuant to the Washington App. 12 Metropolitan Area Transit Authority Compact (Compact). (Pub. L. No. 89-774 (Nov. 6, 1966) 80 Stat. 1324.) The principal purpose of WMATA, as stated in article Ii of the Compact, is to coordinate and implement transit systems within the Washington, D.C., metropolitan area. (/d., at p. 1325.) WMATA neither maintains facilities nor operates transit systems outside the Washington, D.C., metropolitan area. Kingston, a California corporation, entered into a contract with WMATA in 1991 to supply and install replacement transformers. Kingston, in turn, purchased the transformers from Power Energy Industries (PED, another California contractor. WMATA was dissatisfied with the transformers and refused to pay for them. [260] PEI sued Kingston and WMATA in Los Angeles County Superior Court in May 1992. Counsel for WMATA sent a letter to the clerk of the superior court stating that WMATA would not enter an appearance. PEI advised WMATA that the letter was not an appropriate response to the complaint, 2nd warned that a default would be taken. Default was in fact entered on October 19, 1992. On December 22, 1993, PEI and Kingston entered into a settlement agreement whereby PEI assigned its action agains’ WMATA to Kingston. On May 3, 1994, Kingston was granted a default judgment against WMATA in the amount of $6,934,758 plus interest and attomey fees. On August 12, 1994, WMATA filed a motion to vacate the judgment on the grounds that it was void for lack of personal and subject matter jurisdiction. WMATA relied on the language of the Compact to argue that Congress intended that suits by and against WMATA could be brought only in federal district courts in Maryland and Virginia, or the Maryland and Virginia state courts, and that removal to the federal court was limited to actions originally filed in the trial courts of those two States. App. 13 The pertinent language of the Compact is: "The United States District Courts shall have original jurisdiction, concurrent with the Courts of Maryland and Virginia, of all actions brought by or against [WMATA] .... Any such action initiated in a State Court shall be removable to the appropriate United States District Court in the manner provided by Act of June 25, 1948, as amended. (28 U.S.C. 1446.)" (Pub. L. No. 89-774 (Nov. 6, 1966) 80 Stat. 1350.) The trial court found that Congress's intent was not made clear in the Compact, but, citing federal case law, found itself obligated to construe a federal waiver of immunity narrowly. Thus, the trial court interpreted the language to limit jurisdiction as argued by WMATA and, as noted, the court granted the motion on the subject matter jurisdiction ground. This appeal followed. CONTENTIONS Kingston contends that (1) WMATA waived jurisdictional defects by failing to comply with Code of Civil Procedure section 418.10 and by filing a motion raising other issues, (2) the Compact waives sovereign immunity for proprietary actions, (3) the Compact does not limit state court jurisdiction, and (4) WMATA is estopped from raising a jurisdictional challenge. We address the second and third contentions first. [261] The Matter Was Correctly Dismissed for Lack of Subject Matter Jurisdiction (la) Kingston asserts that the Compact is a waiver of sovereign immunity from suit in contract. We agree, but we find that contention alone does not settle the question of whether the Compact confers concurrent jurisdiction on all states, including California. Therefore, we proceed directly to Kingston's third contention. App. 14 Kingston argues that the Compact does not limit state court jurisdiction. The first point made by Kingston is that state and federal courts have concurrent jurisdiction. (2) Kingston is correct in stating the general rule that state courts may assume subject matter jurisdiction over a federal cause of action absent a provision by Congress to the contrary or “disabling incompatibility between the federal claim and state court." (Gulf : Offshore Co. v. Mobil Oil Corp. (1981) 453 U.S. 473, 477 [69 L.Ed.2d 784,790-791, 101 S.Ct. 2870].) In considering the propriety of state-court jurisdiction over any particular federal claim, we begin with the presumption that state courts enjoy concurrent jurisdiction. (Id., at p. 478 [69 L.Ed.2d at p. 791].) Because Congress may confine jurisdiction to the federal courts either explicitly or impliedly, the presumption can be rebutted by an explicit statutory directive. It can also be rebutted by a clear incompatibility between state-court jurisdiction and federal interests. (Ibid. ) (Ib) The provision at issue in Gulf Offshore granted the federal district courts “original jurisdiction of cases and controversies arising out of or in connection with any operations conducted on the outer Continental Shelf .... ' [Citation.]" (453 U.S. at p. 479 [69 L.Ed.2d at p. 791].) The argument in that case, however, was that state jurisdiction was incompatible with federal jurisdiction, an argument that was rejected by the court. Incompatibility is not the basis for WMATA's position of limited jurisdiction, thus, for other than its statement of the general rules of concurrent jurisdiction, Gulf Offshore is not controlling authority here. eh meee Kingston aiso cites Yellow Freight System, Inc. v. Donnelly (1990) 494 LLS. 820, 824 [108 L.Ed.2d 834, 840, 110 S.Ct. 1566], which held that federal courts did not have exclusive jursdiction over title VII cases. The statute stated that “[eJach United States district court and each United States court of a place subject to the jurisdiction of the United States shall have jurisdiction of actions broughi under this subchapter." (Id., at p. 823 [108 L.Ed..2d at p. 839].) The court based its holding on the fact that the title VII provision, unlike a number of other statutes in which Congress nn App. 15 unequivocally stated that the jurisdiction of the federal courts is exclusive, contained no language expressly confining jurisdiction to the federal courts. (Ibid. ) [262] In this case, the Compact states (1) the federal district courts have original jurisdiction concurrent with the Maryland and Virginia courts of actions brought by or against WMATA, and (2) any action initiated in a state court shall be removable to the appropriate federal district court. Unlike Donnelly, here Congress was not silent on the question of the jurisdiction of the state courts. The Compact addresses concurrent jurisdiction, but limits it to the courts of only two states, Virginia and Maryland. Kingston argues that the use of the phrase “original jurisdiction" in the Compact does not indicate that Congress intended to confer exclusive jurisdiction on those courts, citing Brown v. Pitchess (1975) 13 Cal.3d 518, 521 [119 Cal.Rptr. 204, 531 P.2d 772]. There, the question was whether California courts had jurisdiction over federal civil rights actions brought under 42 United States Code section 1983. Section 1983 did not address the question of jurisdiction, but the issue was governed by the general statute which conferred upon federal district courts original jurisdiction over any civil action. Thus, the federal civil rights statute was even more silent than the statute at issue in Donnelly, because section 1983 did not address the jurisdiction question at all. That being So, the Califoria Supreme Court applied the general rule and found concurrent jurisdiction. Once again, we must distinguish Kingston's authority. The Compact was not completely silent about jurisdiction, which would justify reliance on the general rule of concurrent jurisdiction as applied by the Brown court. Rather, the Compact refers to original jurisdiction in the Same sentence as the reference to the two states, which leads to the conclusion that Congress intended state jurisdiction to be limited to Maryland and Virginia. We agree that conferring original jurisdiction without more does not confer exclusive jurisdiction, or divest state courts of their concurrent jurisdiction, and we agree with the trial court App. 16 that the language of the Compact could have been clearer. There is more in the Compact, however. To find that there is concurrent jurisdiction in all state courts would make superfluous the mention of two specific states. Thus, even if the Compact does not clearly explicitly confer jurisdiction on the federal district courts and the two state courts, it impliedly does so. Kingston contests this last point, arguing that conferring jurisdiction on two states does not impliedly divest the other states of concurrent jurisdiction. Kingston again cites several authorities for the general proposition that states have concurrent jurisdiction unless that jurisdiction is excluded by Congress, quoting from The Federalist No. 82 (Hamilton) and New York v. United States (1992) 505 U.S. 144, 162-163 [120 L.Ed.2d 120, 141-142, 112 S.Ct. 2408]. [263] Kingston also quotes Gregory v. Ashcroft (1991) 501 U.S. 452, 460 [115 L.Ed.2d 410, 423, 111 S.Ct. 2395], with more specific language requiring that Congress make it "unmistakably clear" that it intends to preempt the historic powers of the states, language that appears to contradict Gulf Offshore Co. v. Mobil Oil Corp., supra, 453 U.S. 473, which permits an implied restriction of jurisdiction. Gregory, however, is not a concurrent jurisdiction case at all. In Gregory, Missouri state court judges attempted to challenge the state's mandatory retirement in federal court as a violation of the federal Age Discrimination in Employment Act. The Supreme Court affirmed the lower court's dismissal of the action, holding that congressional interference with a decision of the citizens of Missouri regarding the qualifications of their judges “would upset the usual] constitutional balance of federal and state powers," which can be done but which requires a clear and manifest Statement of intention to preempt the historic powers of the states. (501 U.S. at p. 460 [115 L.Ed.2d at p. 423].) The issues in Gregory were Clearly different from those before the court in Gulf Offshore Co., and Gregory has no application to the matter before us. Under Gulf Offshore and other concurrent jurisdiction cases, implied restriction of concurrent jurisdiction is permissible. App. 17 Kingston turns to the definition section of the Compact for support. Title Hl, article I, entitled "Definitions" states in subdivision (e) that the word "state" includes the District of Columbia. (Pub. L. No. 89-774 (Nov. 6, 1966) 80 Stat. 1325.) Kingston contends that in numerous sections of the Compact, when the Congress sought to refer only to Maryland and Virginia, Congress referred to them as “signatories” or “signatory states." Kingston concludes that when Congress used the term “state” in the section at issue here, Congress must have intended to refer to all states, including the District of Columbia. This analysis omits subdivision (d) of the definitions section of the Compact, which states that the term "signatory" means Maryland, Virginia and the District of Columbia. Thus, the references in the Compact to “signatories” and "signatory states" which Kingston has cited to us cannot simply refer only to Maryland and Virginia. Moreover, the fact that Congress conferred concurrent jurisdiction on the courts of Maryland and Virginia but not on the District of Columbia courts can be explained. The Compact became law in 1966. The District of Columbia's "state" superior courts were created by Congress in 1970. Pub.L. No. 91-358 (July 29, 1970) 84 Stat. 475, § 1 1-101, subd. (2)(B).) Prior to 1970, civil actions involving damages exceeding $10,000 were [264] heard in the United States District Court for the District of Columbia. (Pub. L. No. 88-241 (Dec. 23, 1963) § 11-962, 77 Stat. 490, § 11- 962.) Under our interpretation of the Compact, if a plaintiff were to file an action against the WMATA in courts of either Maryland, Virginia or the District of Columbia, which is considered a state for purposes of the Compact, the WMATA may seek removal to federal court. Our reading of the Compact is consistent with the interpretation by the federal district court in District of Columbia ex rel. Geo-Systems, Inc. v. Mergentime Corp. (U.S. Dist. Ct. (D.D.C.), 1992, No. 92-1474- LFO), an unpublished decision of the district court of the District of App. 18 Columbia. Kingston relies on Mergentime, in which the WMATA was cross- defendant and had successfully removed the cross-complaint to the federal court from the "state" court of the District of Columbia. The issue before the court was whether the removal of the entire action, as requested by the defendant in the main action, was permissible. In its discussion, the federal trial court noted that “Congress's intent in enacting the WMATA removal provision . . . calls for the exercise of federal jurisdiction here, particularly in light of the fact that the provision establishes concurrent jurisdiction in the Virginia and Maryland courts, but not the District of Columbia courts." (District of Columbia ex rel. Geo-Systems, Inc. v. Mergentine Corp., supra, No. 92-1474-LFO.) Kingston argues that, in this case, the WMATA's “exclusive remedy” was to remove this action to federal court. The argument implies that because the WMATA did not remove the action to federal court, the WMATA is obligated to defend itself in a California court. But that cannot be. Medlin v. Boeing Vertol Co. (3d Cir. 1980) 620 F.2d 957, 960 held that the plaintiff's failure to challenge removal cannot confer on a federal court subject matter jurisdiction that it does not otherwise possess. Likewise, the defendant's failure to seek removal cannot confer subject matter jurisdiction on a state court. (See National Union Fire Ins. Co. v. Stites Prof. Law Corp. (1991) 235 Cal.App.3d 1718, 1723- 1724 [ 1 Cal.Rtr.2d 570] [subject matter jurisdiction cannot be conferred by consent, waiver or estoppel].) As stated in National Union Fire Ins. Co. v. Stites Prof. Law Corp., supra, 235 Cal.App.3d at pages 1723-1724, a challenge to subject matter jurisdiction cannot be waived, nor can it be barred by application of the doctrine of estoppel. Indeed, lack of subject matter jurisdiction can be raised for the ftrst time on appeal. (/d., at p. 1724.) Therefore, to the extent that Kingston's waiver and estoppel arguments address subject matter jurisdiction, we need not consider them. Having concluded that we are without subject matter jurisdiction, we need not determine Kingston's personal jurisdiction contentions. App. 19 The order is affirmed. DISPOSITION Boren, P. J., and Zebrowski, J., concurred. App. 20 Opinion, Supreme Court of California, Case No. $053577, entered on January 9, 1997 [No. $053577. Jan. 9, 1997.] KINGSTON CONSTRUCTORS, INC., Plaintiff and Appellant, v. WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY, Defendant and Respondent. COUNSEL _ Ronald K. Losch and Lesley Annis for Plaintiff and Appellant. Mayer, Brown & Platt, Kenneth S. Geller and Donald M. Falk for Defendant and Respondent. OPINION MOSK, J.--We granted review in this cause to address a question of first impression concerning the Washington Metropolitan Area Transit Authority Compact (hereafter the WMATA Compact or the compact) and its creature, the Washington Metropolitan Area Transit Authority (hereafter WMATA or the authority), which is a regional instrumentality empowered, among other things, to provide transit facilities in and around the District of Columbia and neighboring parts of the State of Maryland and the Commonwealth of Virginia, comprising the Washington Metropolitan Area Transit Authority Zone (hereafter the WMATA Zone). The question is: Do the courts of the State of California have jurisdiction of actions brought by or against WMATA? For the reasons that follow, we conclude that the answer is: No. On May 28, 1992, Power Energy Industries (hereafter PEI), a California corporation, brought an action in the Los Angeles Superior Court, bearing No. BC056254, against Kingston Constructors, Inc. ee App. 21 (hereafter Kingston), another California corporation, and WMATA. PEI asserted various claims in contract and in tort, and sought damages and costs including attorney fees, based on allegations to the following effect: WMATA entered into a contract with Kingston to supply and install certain electrical transformers, with PEI as an intended third party beneficiary to design and manufacture the items; Kingston in turn entered into a subcontract with PEI to design and manufacture the electrical transformers; WMATA and Kingston proceeded to breach duties they owed PEI pursuant to the contract and the subcontract, and Caused it injury; they also violated obligations they bore it under the law of torts, and caused it injury in this way as well. By letter dated July 24, 1992, WMATA informed the clerk of the superior Court that it would not enter an appearance in No. BC056254 because, among other reasons, under section 8] of the WMATA Compact the superior court did not have jurisdiction of the action as to the Authority. Within days, WMATA communicated its position to PEI, and PEI in turn communicated it to Kingston. It appears that, on or about September 9, 1992, on PEI's motion, the superior court dismissed Kingston as a party from No. BC056254 without prejudice. On October 19, 1992, on PEI's application, the clerk of the Superior court entered WMATA's default in No. BC056254. It appears that, on or about November 10, 1992, PEI brought an action in the superior court, bearing No. BC068273, against Kingston alone--an action that was substantially similar to No. BC056254. On December 22, 1993, as part of the settlement of No. BC068273, PEI assigned to Kingston its claims against WMATA in No. BC056254. On May 5, 1994, the superior court rendered judgment on default in App. 22 No. BC056254,! in favor of Kingston as assignee of PEI's claims and against WMATA, awarding damages in the sum of $6,934,758, plus pre- and post-judgment interest, and attorney fees in the sum of $50,655. On September 1, 1994, on WMATA's motion, the superior court issued an order vacating as void the judgment in No. BC056254.’ It concluded that, under section 81 of the WMATA Compact, it did not have jurisdiction of the action. On November 9, 1994, Kingston filed a notice of appeal from the superior court's order in No. BC056254.’ On April 3, 1996, in an opinion subsequently certified for publication, Division Two of the Second Appellate District of the Court of Appeal affirmed the superior court's order in No. BC056254* It held that, under section 81 of the WMATA Compact, the lower court did not have jurisdiction of the action. On July 10, 1996, on Kingston's petition, we granted review. We now affirm. (la) The issue before us is whether California courts have jurisdiction of actions brought by or against WMATA. Its resolution requires us to set out the background. WMATA is a regional instrumentality empowered, among other : Apparently because of a clerical error, the judgment incorrectly bears No. BC068273. Apparently because of the clerical error on the judgment (see fn. 1, ante), the order incorrectly bears No. BC068273. Apparently because of the clerical error on the order (see fn. 2, ante), the notice of appeal incorrectly bears No. BC068273. Apparently because of the clerical error on the notice of appeal (see fn. 3, ante), the Court of Appeal's opinion incorrectly bears No. BC068273. App. 23 things, to provide transit facilities in and around the District of Columbia and neighboring parts of Maryland and Virginia, which comprise the WMATA Zone. (Pub.L. No. 89-774 (Nov. 6, 1966) 80 Star. 1324.) Its ultimate source of funding is Congress, the district, and these two states. (Id. § I, 80 Star. 1331.) The WMATA Compact established WMATA and created the WMATA Zone. The compact was initiated and consummated by Congress for federal purposes, including the “effective performance of the functions of the United States Government located within the [National Capital] Region" and the "preservation of the beauty and dignity of the Nation's Capital." (Pub. L. No. 89-774 (Nov. 6, 1966) preamble, 80 Stat. 1324; see generally, Sen.Rep. No. 1491, 89th Cong. 2d Sess. pp. 3-5, 27.) The compact was also intended to further joint federal, state, and local objectives in the "Region," such as the "satisfactory movement of people and goods," the “alleviation of present and future traffic congestion," "economic welfare and vitality," “orderly growth and development," and the "comfort and convenience of... residents and visitors." (Pub. L. No. 89-774 (Nov. 6, 1966) preamble, 80 Stat. 1324.) The WMATA Compact was entered into by the three signatories within the WMATA Zone. The compact was joined by the District of Columbia, through enactment by Congress (Pub.L. No. 89-774 (Nov. 6, 1966) 80 Stat. 1324-1325) pursuant to the United States Constitution and its powers thereunder, specifically: (a) article I, section 8, clause 17, which grants it power "[t]o exercise exclusive Legislation in all Cases whatsoever, over [the] District" as "the Seat of the Government of the United States": (b) article I, section 8, Clause 3, which grants it power "[t]o regulate Commerce . .. among the several States"; and (c) article I, section 8, clause 18, which grants it power "[t]o make all Laws which shall be necessary and proper for carrying [its other powers] into Execution." The compact was also joined by Maryland, which is one of the two states that border the district and come within the zone, through enactment by its General Assembly. (1965 Md. Laws, ch. 869.) The compact was joined as well by Virginia, which is the other of the two States that border the district and come within the zone, through enactment by App. 24 its General Assembly. (1966 Va. Acts, ch. 2.) The WMATA Compact was consented to by Congress (Pub.L. No. 89-774 (Nov. 6, 1966) preamble, 80 Stat. 1324-1325) under article I, section 10, clause 3 of the United States Constitution, which provides that "[n]o State shall, without the Consent of Congress . . enter into any . .. Compact with another State... ." (2) So consented to, it became a law of the United States. (See, e.g., Texas v. New Mexico (1987) 482 U.S. 124, 128 [96 L.Ed.2d 105, 113- 114, 107 S.Ct. 2279].) As such, it is "supreme," pursuant to article VI, clause 2 of the United States Constitution, "any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." It thereby renders without effect any such state provision that is in conflict. (See, e.g., State of Pennsylvania v. The Wheeling &c. Bridge Co. et al. (1852) 54 U.S. (13 How.) 518, 566 [14 L.Ed. 249, 269]; see generally, Cipollone v. Liggett Group, Inc. (1992) 505 U.S. 504, 516 [120 L.Ed.2d 407, 422-423, 112 S.Ct. 2608].) (Ib) Section 81 of the WMATA Compact, with which we are here concerned, bears the title, "Jurisdiction of Courts,” and declares in its entirety: "The United States District Courts shall have original jurisdiction, concurrent with the Courts of Maryland and Virginia, of all actions brought by or against WMATA] and to enforce subpoenas issued under [the WMATA Compact]. Any such action initiated in a State Court shall be removable to the appropriate United States District Court in the manner provided by Act of June 25, 1948, as amended (28 U.S.C. 1446). (Pub.L. No. 89-774 (Nov. 6, 1966) § 1, 80 Star. 1350; accord., § 4, 80 Stat. 1353.) When we seek the meaning of section 81 of the WMATA Compact, as we must, in its words within their context (see, e.g., Kopp v. Fair Pol. Practices Corn. (1995) 11 Cal.4th 607, 672-673 [47 Cal.Rptr.2d 108, 905 P.2d 1248] (conc. opn. of Mosk, J.)), what we find is as follows. First, by its title and according to its terms, section 81 of the WMATA Compact deals with the "jurisdiction" of courts over actions ENT ne ante. Sete R - App. 25 © brought by or against WMATA, namely, the power to consider and decide such causes.° Second, section 81 of the WMATA Compact specifies the "original" jurisdiction of WMATA actions, that is, the power to entertain causes of this sort in the first instance (Brown v. Pitchess (1975) 13 Cal.3d 518, 521 [119 Cal.Rptr. 204, 531 P.2d 772]). It appears to assume that the "appellate" jurisdiction of such actions, that is, the power to review their outcome, follows as otherwise provided. Third, section 81 of the WMATA Compact expressly grants jurisdiction of WMATA actions to the courts of the United States-- more precisely, it grants original jurisdiction specifically to the United States District Courts. Because WMATA was established by the WMATA Compact, actions involving the authority arise under the compact, at least ultimately. (Cf. Osborn v. United States Bank (1824) 22 U.S. (9 Wheat.) 738, 823 [6 L.Ed. at p. 204, 224] [to similar effect as to the second Bank of the United States, which was a federally chartered corporation]; American Nat. Red Cross v. $.G. (1992) 505 U.S. 247, 264-265 [120 L.Ed.2d 201,217-218, 112 S.Ct. 2465] [to similar effect as to the American National Red Cross, another federally chartered corporation].) And because the compact is a federal law, such actions are within the power of the federal courts pursuant to article II], section 2, clause 1 of the United States Constitution. (Cf. Osborn vy. United States Bank, supra, 22 U.S. (9 Wheat.) at p. 823 [6 L.Ed. at p. 224] [to similar effect as the federal charter of the second Bank of the United States}; American Nat. Red Cross v. S.G., supra, 505 U.S. at pp. 264-265 [120 L.Ed.2d at pp. 217-218] [to similar effect as to the federal charter of the American National Red Cross].)° rs What section 81 of the WMATA Compact speaks of as jurisdiction of an action corresponds to what California law refers to as “[Jurisdiction of the subject matter" (2 Witkin, Cal. Procedure (4th ed. 1996) Jurisdiction, § 10, p. 555; see, e.g., Greener v. Workers’ Comp. Appeals Bd.. (1993) 6 Cal.4th 1028, 1035 (25 Cal.Rptr.2d 539, 863 P.2d 784]; Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 288 [109 P.2d 942, 132 ALR. 715)). ® In Qasim v. Washington Metro. Area Transit Auth. (D.C.App. 1983) 455 A.2d 904, 906 (in bank) (hereafter sometimes Qasim), the District of Columbia Court of Appeals implied that WMATA actions are "local matters.” The “locality,” of App. 26 Fourth, section 81 of the WMATA Compact expressly grants jurisdiction of WMATA actions concurrently to the courts of Maryland and Virginia--more precisely, it grants them original jurisdiction, albeit without further specification.’ The WMATA Zone embraces territory belonging to these two states. As a result, it encompasses geographical area within which their courts may properly exercise judicial power-- subject, of course, to the requirements of the due process clause of the Fourteenth Amendment to the United States Constitution (see, e.g., Shaffer v. Heitner (1977) 433 U.S. 186, 189-212 [53 L.Ed.2d 683, 688-703, 97 S.Ct. 2569]).* Fifth, and crucial,. section 81 of the WMATA Compact impliedly denies jurisdiction of WMATA actions to the courts of states other than Maryland and Virginia--more precisely, it impliedly denies them course, is the District of Columbia, which is “the Seat of the Government of the United States” (U.S. Const., art. I, § 8, cl. 17), and neighboring parts of Maryland and Virginia—the "National Capital Region.” (Pub. L. No. 89-774 (Nov. 6, 1966) preamble, 80 Stat. 1324.) We do not understand the Qaswn court's implication to amount to a denial that the WMATA Compact is a federal law. Such a denial would be erroneous. If it is parsed strictly, section 81 of the WMATA Compact expressly grants jurisdiction of WMATA actions to the courts of Maryland and Virginia and concurrently to the courts of the United States. 8 ‘That section 81 of the WMATA Compact does not expressly grant jurisdiction of WMATA actions concurrently to the local courts of the District of Columbia is not surprising. At the time the compact was consented to by Congress it was the courts of the United States, and not the district's local courts, that functioned as “state” courts for the district. “[T]he local court system consisted of one appellate court and three trial courts, two of which... were courts of special jurisdiction. The third trial court... was one of quite limited jurisdiction .... The judgments of the appellate court... were subject to review by the United States Court of Appeals for the District of Columbia Circuit.” (Palmore v. United States (1973) 411 U.S. 389, 392, fn. 2 [36 L.Ed.2d 342, 348-349, 93 S.Ct. 1670); see generally, Pub.L. No. 88-241 (Dec. 23, 1963) 77 Star. 478.) Subsequently, the district's local courts were reorganized to “succeed” the federal courts in their function as “state” courts for the district. (See Palmore v. United States, supra, 411 U.S. at pp. 407-409 [36 L.Ed.2d at pp. 357-358]; see generally, Pub. L. No. 91-358 (July 29, 1970) 84 Star. 473, 475.) We note in passing that the Qasim court held that section 81 of the WMATA Compact impliedly grants jurisdiction of WMATA actions concurrently to the District of Columbia's local courts as reorganized. (Qasim v. Washington Metro. Area Transit Auth., supra, 455 A.2d at pp. 906-907.) i en | App. 27 original jurisdiction. It explicitly includes Maryland and Virginia courts. It thereby implicitly excludes the rest. Expressio duorum, exclusio ceterorum. The WMATA Zone does not embrace territory belonging to any of the other states. As a result, it does not encompass geographical area within which their courts could properly exercise judicial power. Not to the contrary is the language of section 81 of the WMATA Compact itself: "The United States District Courts shall have Original jurisdiction, concurrent with the Courts of Maryland and Virginia, of all actions brought by or against (WMATA].... Any such action initiated in a State Court shall be removable to the appropriate United States District Court . . . . "" (Pub.L. No. 89-774 (Nov. 6, 1966) § 1, 80 Stat. 1350.) Read in context, the later phrase, "State Court," is a mere shorthand for the earlier one, "the Courts of Maryland and Virginia.” It cannot reasonably be taken to mean the courts of the several states generally.’ To do so would obliterate the manifest distinction drawn between Maryland and Virginia, on the one side, and the other states, on the opposite. Neither can it reasonably be taken to mean the courts of states other than Maryland and Virginia. To do so would entail the conclusion that a WMATA action "initiated" in a court of Maryland or Virginia" shall not be removable to the appropriate United States District Court ...." Practical construction undermines such a position: WMATA actions initiated in Maryland or Virginia courts are in fact removed (see Malone v. Washington Metro. Area Ti ransit Auth. (E.D.Va. 1985) 622 F. Supp. 1422, 1424), Sixth, and final, section 81 of the WMATA Compact provides that a WMATA action initiated in a Maryland or Virginia court may be removed to the appropriate federal district court in accordance with section 1446 of title 28 of the United States Code, which specifies the procedures for removal (City of Cincinnati, Ohio v. Weaver (S.D.Ohio Being not at all similar to provisions such as section 1352 of title 28 of the United States Code, which declares that, Subject to a limited exception, the United States “district courts shall iave original jurisdiction, concurrent with State courts. Of any action on a bond executed under any law of the United States .... "(Italics added.) App. 28 1965) 245 F. Supp. 529, 532). It follows from the forgoing that California courts do not have jurisdiction of WMATA actions. Section 81 of the WMATA Compact impliedly denies jurisdiction of such actions to the courts of states other than Maryland and Virginia. It thereby denies it to those of California. Against this conclusion, Kingston argues that section 81 of the WMATA Compact does not in fact grant jurisdiction of WMATA actions only to the courts of the United States and to those of Maryland and Virginia. It urged this point vigorously in the superior court and the Court of Appeal, but has all but abandoned it here. What remains is this: Under decisions such as Yellow Freight System, Inc. v. Donnelly (1990) 494 U.S. 820 [108 L.Ed.2d 834, 110 S.Ct. 1566] (hereafter sometimes Yellow Freight System), Taffiin v. Levitt (1990) 493 U.S. 455 [107 L.Ed.2d 887, 110 S.Ct. 792] (hereafter sometimes Taffiin), Gulf Offshore Co. v. Mobil Oi! Corp. (1981) 453 U.S. 473 [69 L.Ed.2d 784, 101 S.Ct. 2870] (hereafter sometimes Gulf Offshore Co.), and Dowd Box Co. v. Courtney (1962) 368 U.S. 502 [7 L.Ed.2d 483, 82 S.Ct. 519] (hereafter sometimes Dowd Box Co.), there is a “presumption that state courts enjoy concurrent jurisdiction” with federal courts (Gulf Offshore Co. v. Mobil Oil Corp., supra, 453 U.S. at p. 478 [69 L.Ed.2d at pp. 791-792]; accord, Yellow Freight System, Inc. v. Donnelly, supra, 494 U.S. at p. 823 [108 L.Ed.2a at pp. 839-840); Taffin v. Levitt, supra, 493 U.S. at p. 458 [107 L.Ed.2d at pp. 893-894]; see Gulf Offshore Co. v. Mobil Oil Corp., supra, 453 U.S. at pp. 477-478 [69 L.Ed.2d at pp. 790- 792}; Dowd Box Co. v. Courtney, supra, 368 U.S. at pp. 507-508 [7 L.Ed.2d at pp. 486-488]). Under Yellow Freight System, Taffiin, Gulf Offshore Co., and Dowd Box Co., there is indeed a “presumption of concurrent jurisdiction" between federal courts and state courts. (Gulf Offshore Co. v. Mobil Oil Corp., supra, 453 U.S. at p. 478 [69 L.Ed.2d at p. 791].) But that presumption arises when the jurisdictional provision in question is silent as to the jurisdiction of state courts. That is not the case here. ee App. 29 In Yellow Freight System, the jurisdictional provision is section 706(f) of title VII of the Civil Rights Act of 1964: "Each United States brought” thereunder. (Pub.L. No. 88-352 (July 2, 1964) tit. Vil, § 706(f), 78 Stat. 260-261: see Yellow Freight System, Inc. y. Donnelly, supra, 494 U.S. at p. 823 [108 L.Ed.2d at Pp. 839-840].) There is not Person injured in his business or Property by reason of a violation of {the act] may sue therefor in any appropriate United States district court --- "' (Pub.L. No. 91-452 (Oct. 14, 1970) tit. IX, 84 Stat. 944; see Taffin v. Levitt, supra, 493 U.S. at Pp. 460 [107 L-Ed.2d at pp. 894- 895].) Again, not a word about State Courts or their jurisdiction. Stat. 463; see Gulf Offshore Co. v. Mobil Oil Corp., supra, 453 U.S. at pp. 478-479 [69 L.Ed.2d at pp. 791-792}.) Again, not a word about state courts or their jurisdiction. United States having jurisdiction of the parties "(Pub.L. No. 101, 80th Cong. Ist Sess. (June 23, 1947) title III, § 301(a), 61 Stat. 156: see Dowd Box Co. y. Courtney, supra, 368 U.S. 502.) Again, not a word about state courts or their jurisdiction. App. 30 Here, the jurisdictional provision is section 81 of the WMATA Compact, which, it will be recalled, states in pertinent part that "'[t}he United States District Courts shall have original jurisdiction, concurrent with the Courts of Maryland and Virginia, of all actions brought by or against" WMATA (Pub.L. No. 89-774 (Nov. 6, 1966) § 1, 80 Stat. 1350; accord, id., § 4, 80 Stat. 1353). Its words are largely directed at state courts and their jurisdiction--to the express effect that the courts of Maryland and Virginia have jurisdiction of WMATA actions concurrently with courts of the United States, and to the implied effect that the courts of other states do not.'® Kingston then argues that, if section 81 of the WMATA Compact purports to grant jurisdiction of WMATA actions only to the courts of the United States and to those of Maryland and Virginia, it is violative of the United States Constitution and thereby void. It hardly raised this point in the superior court or the Court of Appeal, but urges it vigorously here. We begin with the "heavy presumption" that section 81 of the WMATA Compact, like all other provisions of all other federal laws, does not violate the United States Constitution. (Department of Labor v. Triplett (1990) 494 U.S. 715, 721 [108 L.Ed.2d 701,713-714, 110 S.Ct. 1428].) As will appear, we shall end with the conclusion that this presumption has not been rebutted. Congress's power under article I, section 8, clause 17 of the United Kingston quotes our statement in Brown v. Pitchess, supra, 13 Cal. 2d at page 521: “The phrase ‘original jurisdiction’... does not mean exclusive jurisdiction.” That is true. But it is of no benefit to its position. Our analysis does not assume the opposite. In holding that section 81 of the WMATA Compact impliedly grants jurisdiction of WMATA actions concurrently to the District of Columbia's local courts as reorganized (see fn. 8, ante), the Qasim court relied on the “Presumption of concurrent jurisdiction” (Gulf Offshore Co. v. Mobil Oil Corp., supra, 453 U.S. at p. 478 [69 L. Ed.2d at pp. 791-792]) between federal courts and state courts. (Qasim v. Washington Metro. Area Transit Auth., supra, 455 A.2d at p. 907.) We must reject the soundness of its reliance. But we need not pass on the correctness of its holding. One may justify its conclusion on the ground, not available to the courts of any of the states, that the district's local courts as reorganized “succeeded” the federal courts in their function as “state” courts for the district. App. 31 States Constitution "[rio exercise exclusive Legislation in al! Cases whatsoever, over" the District of Columbia as "the Seat of the Government of the United States," is broad indeed. It has been called "plenary." (Pamore v. United States, supra, 411 U.S. at p. 397 [36 L.Ed.2d at pp. 351-352].) And it has been held to extend even “outside of" the district's "territorial limits." (National Ins. Co. v. Tidewater Co. (1949) 337 US. 582, 600 [93 L.Ed. 1556, 1572, 69 S.Ct. 1173).) The reason is plain. It belongs to Congress "not [as] a local legislature, but . . . in its high character, as the legislature of the union." (Cohens v. Virginia (1821) 19 U.S. (6 Wheat.) 264, 429 [5 L.Ed. 257, 297].) Similarly broad is Congress's power under article I, section 8, Clause 3 of the United States Constitution "[t]o regulate Commerce . - among the several States .... "It too has been called "plenary." (Hodel v. Virginia Surface Mining & Recl. Assn. (1981) 452 US. 264, 276 [69 L-Ed.2d 1, 15-16, 101 S.Ct. 2352].) It is “complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, o[t]her than are prescribed in the constitution." (Gibbons v. Ogden (1824) 22 U.S. (9 Wheat.) 1,196 [6 L.Ed. 23, 70}.) Whatever breadth may be lacking in its seat-of-government and commerce powers is supplied to Congress through its power under article I, section 8, clause 18 of the United States Constitution "[t]o make all Laws which shall be necessary and proper for carrying [its other powers] into Execution .... "This teaching is old. (See McCulloch v. Maryland (1819) 17 U.S. (4 Wheat.) 316, 400-425 [4 L.Ed. 579, 600-606].) It remains vital today. Section 81 of the WMATA Compact grants jurisdiction of WMATA actions to the courts of the United States. It is not problematic in this regard. As explained, because WMATA was established by the WMATA Compact, actions involving the a App. 32 authority arise under the compact, at least ultimately; and because the compact is a federal law, such actions are within the power of the federal courts. The WMATA Zone includes the District of Columbia as the seat of government. By embracing as well territory belonging to Maryland and Virginia, it comprehends the commerce flowing between and among the district and these two states. Section 81 of the WMATA Compact also grants jurisdiction of WMATA actions concurrently to the courts of Maryland and Virginia. Neither is it problematic in this regard. It could surely have denied jurisdiction of such actions to the courts of the several states generally. (See, e.g., The Moses Taylor (1867) 71 U.S. (4 Wall.) 411, 428-430 [18 L.Ed. 397,401-402].) That it excepted the courts of these two states causes no offense: The WMATA Zone embraces territory belonging to them alone. Kingston's attack on section 81 of the WMATA Compact under the United States Constitution is essentially three pronged. The first part effectively challenges the compact in general as an unconstitutional agreement among states, including the District of Columbia as a "state" along with Maryland and Virginia. It fails. As explained, the compact was initiated and consummated by Congress for federal purposes. As also explained, on its face and in its substance, it is a federal law. Whether it is permitted is material--it is--not whether it is required. (See Cuyler v. Adams (1981) 449 U.S. 433, 440 [66 L.Ed.2d 641,648-649, 101 S.Ct. 703].) The second part of the attack also effectively challenges the compact in general, this time as a federal law that is beyond Congress's powers. It too fails. As explained, the compact falls comfortably within such powers. The third part of the attack effectively challenges section 81 itself as invidiously discriminatory in favor of Maryland and Virginia and against the other states, apparently in violation the Fifth Amendment's due process clause. It fails as well. Any discrimination effected by section 81 seems hardly invidious: the WMATA Zone embraces territory belonging to Maryland and Virginia, and does not embrace territory belonging to any other state. In consenting to the compact, Congress effectively declared its view that section 81 was not invidiously discriminatory. Included therein were senators and App. 33 representatives from Maryland and Virginia. Included also, and in overwhelming numbers, were their counterparts from the other States. If these did not discern invidious discrimination in section 8 1 - -and they apparently did not: they expressed no recorded Opposition- -We have no basis to do otherwise.'! Il Having determined that California courts do not have jurisdiction of actions brought by or against WMATA, we must, and do, conclude that the Court of Appeal was right to hold that the superior court did not have jurisdiction of No. BC056254 when it vacated the judgment therein as void. In arguing to the contrary, Kingston asserts that section 81 of the WMATA Compact does not in fact grant jurisdiction of WMATA actions only to the courts of the United States and to those of Maryland and Virginia. We addressed the point above, and found it wanting. Kingston then asserts that, if section 81 of the WMATA Compact purports to grant jurisdiction of WMATA actions Only to the courts of the United States and to those of Maryland and Virginia, it is violative of the United States Constitution and thereby void. We addressed this point too, and found it wanting as well. a“ To the extent that Kingston's claim that section 81 of the WMATA Compact is Regional Planning Compact declares in pertinent part: “The appropriate courts of” California and Nevada, "each within its limits of territory and subject matter Provided by state law, are vested with Jurisdiction over... actions to which” the Tahoe Regional Planning Agency "is a Party .... Each such action shall be brought in a court of the state... where the property affected by [the] action is Situated, unless the action is brought in a federal! court.’" (Pub. L. No. 91-148 (Dec. To the extent that Kingston's claim against section 8] of the WMATA Compact extends toviolation of such Provisions of the United States Constitution as article III and the TenthAmendment, it must be rejected out of hand as insubstantial. App. 34 Kingston finally asserts that, even if section 81 of the WMATA Compact does in fact grant jurisdiction of WMATA actions only to the courts of the United States and to those of Maryland and Virginia, as a matter of California law WMATA waived any challenge it might have had to the superior court’ s jurisdiction. Whether such an outcome would be countenanced by the supremacy Clause is a question we need not reach. The fact is, it is not the outcome here. (3) Under California law, a party simply cannot waive such a challenge. (DeTomaso v. Pan American World Airways, Inc. (1-987) 43 Cal.3d 517, 520, fn. 1 [235 Cal.Rptr. 292, 733 P.2d 614).” IV For the reasons stated above, we conclude that we must affirm the judgment of the Court of Appeal. It is so ordered. George, C.J., Kennard, J., Baxter, J., Werdegar, J., Chin, J., and Brown, J., concurred. 12 Kingston complains that WMATA should have removed no. BC056254 from the superior court to the appropriate United States District Court. Any such removal would have been to no avail. Kingston assumes that the federal district court would have acquired jurisdiction of the action from the superior court. Not so. “{I}t is well settled that” when, as her, “the state court lacks jurisdiction. . . , the federal court acquires none upon removal, even though the federal court would have had jurisdiction if the suit had originated there.” (Arizona v. Manypenny (1981) 451 U.S. 232, fn. 17 [68 L.Ed.2d 58, 69, 101 S.Ct. 1657]}.) 80 Stat.] PUBLIC LAW 89-774_Nov. 6, 1966 “Organization and Procedure “7. The Board shall provide for its own organization and procedure. It shall organize annually by the election of a Chairman and Vice. Chairman from among its members. Meetings of the Board shall be held as frequently as the Board deems that the proper performance “Quorum and Actions by the Board “8. (a) Four Directors or alternates consisting of at least one Direc- tor or alternate appointed from each Signatory, shall constitute a quorum and no action by the Board shal] be effective unless { majority of the Board, which majority shall include at Jenst one Director or alternate from each Signatory, concur therein ; provided, however, that a plan of financing may be adopted or a mass transit plan adopted, altered, revised or amended by the unanimous vote of the Directors representitig any two Signatories. ‘(b) The actions of the Board shall be expressed by motion or resolution. Actions dealing solely with internal np oy, ee of the -\uthority shall become effective when directed by the Board, but no other action shal] become effective prior ro the expiration of thirty days following its adoption ; provided, however, that the Board may provide for acceleration of any action upon a finding that suc acceleration is required for the proper and timely performance of its nctions, “Officers “9. (a) The officers of the Authority, none of whom shall be mem- bers of the Board, shall consist of n penis manager, a secretary, a treasurer, a comptroller and 2 Feneral counsel and such other officers as the Board may provide. Except for the office of general manager and comptroller, the Board many consolidate any of such other offices in one person. Al] such officers shal] he appointed and may be re- moved by the Board, shall Serve at the pleasure of the Board and shall erform such duties and functions as the Board shall specify. The oard shall fix and determine the compensation to be paid to all officers and, except for the general manager who shall be a full-time employee, all other officers may be hired on a full-time or art-time basis and may be sompensated on a salary or fee basis, as the Board may determine. .(]] employees and such officers as the Board may designate shall be » pointed and removed hy the general manager under such rules of determine. “(b) The general anager shall be the chief administrative officer of the Authority and, subject to licy direction by the Board, shal] bo responsible for al] Activities of the ) the public exigency requires the immediate delivery of the articles; " c) only one source of supply is available; or “(d) the equipment to be purchased is of a technical nature and the procurement thereof without advertising is necessary in order to assure standardization of equipment and interchangeability of parts in the public interest. “Rights of Way “74. The Board is authorized to locate, construct and maintain any of its transit and related facilities in, upon, over, under or across any streets, highways, freeways, bridges and any other vehicular facilities, subject to the applicable Jaws governing such use of such facilities by ublicagencies. In the absence of such laws, such use of such facilities y the Board shall be subject to such reasonable conditions as the high- way departinent or other affected agency of a signatory party mny re- quire; provided, however, that the shal] not construct or operate transit or related facilities upon, over, or across any parkways or park lands without the consent of, and except upon the terms and conditions required by, the agency having jurisdiction with respect to such park- ways and park lands, but may construct or operate such facilities in a subway under such parkways or Fe rk lands upon such reasonable terms and conditions as may be specified by the agency having jurisdiction with respect thereto. “Compliance with Laws, Regulations and Ordinances “75. The Board shal] comply with all laws, ordinances and regula- tions of the signatories and political subdivisions and agencies thereof with respect to use of streets, highways and al] other vehicular facili- ties, ¢ control and regulation, zoning, signs and buildings. “Police “76. The Board is authorized to employ watchmen, guards and in- vestigators as it may deem necessary for the protection of its proper- ties, personnel and passengers and such employees, when authorized by any Jurisdiction within the Zone, may serve as special police officers in any such jurisdiction. Nothing contained herein shall reliove any signatory or political subdivision or agency thereof from its duty to provide police service and protection or to limit, restrict or interfere with the jurisdiction of or performance of duties by the existing police * and law enforcement agencies. “Exemption from Regulation “77. Except as otherwise provided in this Title, any transit serv- ice rendered by transit facilities owned or controlled by the Authority and the Authority or any corporation, firm or association performing such transit service pursuant to an operating contract with the Author- ity, shall, in connection with the performance of such service, be ex- empt from all laws, rules, regulations and orders of the signatories r wal Sait eR whi head SO ee eee CS Le ee eee nF oy hs Pee Oe Poe eS we oe a ee ee ee PN Pe ee ee ee ee en ees RAE pce Space oe La at a td ne is Pea eC a OP PUBLIC LAW 89-774—NO™’. 6, 1966 (80 Star. and of the United States otherwise applicable to such transit service and persons, except that laws, rules, regulations and orders relating to inspection of equipment and facilities, safety and testing shall re- main in force and eflect; provided, however, that the Board may pro- mulgate regulations for the safety of the public and employees not inco~ sistent with the applicable laws, rules, regulations or orders of the signatories and of the United States. “Tax Exemption “78. It is hereby declared that tlie creation of the Authority and the carrying out of the corporate purposes of the -\uthority is in all respects for the benefit of the people of the signatory states and is for a public purpose and that the Authority and the Board will be per- forming an essential governmental function, including, without limita- tion, agen” governmental and other furctions, in the exercise of the powers conferred by this Title. Accordingly, the Authority and the rd shali-not be required to pay taxes or assessments upon any of the property acquired by it or under its jurisdiction, control, pos- session or supervision or upon its activities in the operation and main- tenance of any transit facilities or upon any revenues therefrom and the property and income derived therefrom shall be exempt from all federal, State, District of Columbia, municipal and local taxation. This exemption shall include, without limitation, all motor vehicle license fees, sales taxes and motor fuel taxes. “Free Transportation and School Fares “79, All laws of the signatories with respect to free transportation and school fares shall be applicable to transit service rendered by facilities owned or controlled by the Authority». . “Liability for Contracts and Torts “g0. The Authority shall be linble for its contracts and for its torts and those of its Directors, officers, employees and agent committed in the conduct of any proprietary function, in accordance with the law of the applicable signatory (including rules on conflict of laws), but shall not be liable for any torts occurring in the performance of 2 govern- mental function. The exclusive wget for such breach of contracts and torts for which the Authority shall be liable, as herein provided, shall be by suit against the Authority. Nothing contained in this Title shall be construed as a waiver by the District. of Columbia, Mary- land, Virginia ‘and the counties and cities within the Zone of any immunity from suit. “Jurisdiction of Courts “g1. The United States District Courts shall have original juris- diction, concurrent with the Courts of Maryland and Virginia, of al! actions brought. by or against. the Authority and to enforce subpoenas issued under this Title. Any such action initiated in a State Court shal! be removable to the appropriate United States District Court in the manner provided by Act of June 25, 1948, as amended (28 U.S.C. 1446). “Condemnation “g2. (x) The Authority shall have the power to acquire by con- demnation, whenever in its opinion it is necessary or advantageous to the Authority to do so, any real or personal property, or any in- 80 Srat.] PUBLIC LAW 89-774—NOV. 6, 1966 terest therein, necessary or useful for the transit system authorized herein, except property owned by the United States, by a signatory, or any political subdivision thereof, or by a private transit. com- “b) Proceedings for the condemnation of property in the,Dis- trict of Columbia shall be instituted and maintained under the Act of December 23, 1963 (77 Stat. 577-581, D, C. Code 1961, Supp. IV, Sections 1851-1368). Proceedings for the condemnation of propert located elsewhere within the Zone shal] be instituted and maintained, if applicable, pursuant. to the provisions of the Act of August. 1, 1888, as amended (25. Stat. 357, 40 U.S.C. 257) and the Act of June 25, 1948 (62 Stat. 935 and 937, 28 U.S.C. 1858 and 1403) or any other — Act; provided, however, that if there is no applicable eral law, condemnation proceedings shall be in accordance with the provisions of the State law of the vy ag | in which the prop- oy is located governing condemnation by the highway agency of such state. Whenever the words ‘real property,’ ‘realty,’ ‘land,’ ‘ease- merit,’ ‘right-of-way,’ or words of similar meaning are used in an applicable federal or state law relating to procedure, jurisdiction an venue, they shall be deemed, for the purposes of this Title, to include any nal property authorized to be acquired hereunder. cy Any award or compensation for the taking of property pur- svant to this Title shall be paid by the Authority, and none of the signatory parties nor any other agency, instrumentality or political subdivision thereof shall be liable for such award or compensation. “Enlargement and Withdrawal; Duration “83. (a) When advised in writing by the Northern Virginia Trans- portation Commission or the Washington Suburban Transit Com- mission that the geographical area embraced therein has been en- larged, the Board, upon such terms and conditions as it may’ deem appropriate, shall by resolution enlarge the Zone to embrace the addi- tional area. “(b) The duration of this Title shall] be perpetual but any signa- tory thereto may withdraw therefrom upon two years’ written notice to the Board. “(c) The withdrawal of any signatory shall] not relieve such sig- natory, any transportation district, county or city or other political subdivision thereof from any obligation to the Authority, or inuring to the benefit of the Authority, created by contract or otherwise. “Amendments and Supplements “84. Amendments and supplements to this Title to implement the purposes thereof may be adopted Wy legislative action of any of the signatory parties concurred in by all of the others. “Construction and Severability “85. The provisions of this Title and of the agreements thereunder shall be severable and if any phrase, clause, sentence or provision of this Title or any such agreement is declared to be unconstitutional or the applicability thereof to any signatory party, political subdivision or agency thereof is held invalid, the constitutionality of the remain- der of this Title or any such agreement and the applicability thereof to any other signatory party, political subdivision or agoncy thereof 135) 62 Stat. 986. Pi AEE EO Wiha oie os. FLL nS PRECISE RATE RATA CAAT Carlie NEL Sr nn Nate CARS BG dk ES os tex vee ea a x 2 J oe 4 ¥ 3 ; 4 PUBLIC LAW 89-774—NOV. 6, 1966 [80 Sra. or circumstance shall not be affected thereby. It is the legislative intent that the provisions of this Title be reasonably and hereily construed. “Effective Date; Execution “86. This Title shal] be adopted by the signatories in the manner provided by law therefor and shall be signed and sealed in four dupli- cate original copies. One such copy shall be filed with the Secretary of State of mek of the signatory parties or in accordance with laws of the State in which the ating is oe one copy shall be filed and retained in the archives of the Authority u its organization. This Title shall become effective ninety days after the enactment of mei legislation by or on behalf of the District of Columbi Maryland and Virginia and consent thereto by the Congress and a other acts or actions have been taken, including the signing and execu-— tion of the Title by the Governors of Maryland and Virginia and the Commissioners of the District of Columbia.” Section 2. The Commissioners of the District of Columbia are au- thorized and directed to enter into and execute an amendment. to the Com substantially as set forth above with the States of Virginia and Maryland and are further authorized and directed to carry out and effectuate the terms and provisions of snid Title III, and there are hereby authorized to be appropriated out of District of Columbia funds such amounts as are necessary to carry out the obligations of the District of Columbia in accordance with the terms of the said Title III. Section 3. (a) To assure uninterrupted progress in the development of the facilit.es authorized by the National Capital Transportation Act of 1965, the transfer of the functions and duties of the National Capital Transportation Agency (herein referred to as the Agency) to the Washington Metropolitan Area Transit Authority (herein re- ferred to as the Authority) as required by Section 301(b) of the National Capital Transportation Act of 1960 shal] take place on Se ber 30, 1967. b) Upon the effective date of the transfer of functions and duties authorized by subsection (a) of this section, the President is author- ized to transfer to the Authority such real and personal property, studies, reports, records, and other assets and liabilities as are appro- priate in order that the Authority may assume the functions and duties of the Agency and, further, the President shall make provision for the transfer to the Authority of the unexpended balance of the appropria- tions, and of other funds, of the Agency for use by the Authority but such unexpended balances so transferred shal] be used only for the purpose for which such appropriations were a made. Subse- uent to said effective date, there is authorized to be appropriated to the partment of Housing and Urban Development, for payment to the Authority, any unappropriated portion of the authorization specified in Section 5(a)(1) of National Capital Transportation Act of 1965. There is also authorized to be Se ay to the District of Columbia out of the general fund of the District of Columbia, for payment to the Authority, any unap po pee y portion of the au- thorization specified in section 5(a) (2) of such Act. Any such ap- propriations shall be used only for the purposes for which such suthorleations were originally made.. (c) Pending the assumption by the Authority of the functions and duties of the Agency, the Agency is authorized and directed, in the manner herein set forth, fully to cooperate with and assist the Authority, the Northern Virginia Transportation Commission and the Washington Suburban Transit Commission in the development of 80 Stat.) PUBLIC LAW 89-774—NOV. 6, 1966 plans for the extensions, new lines and related facilities required td expand the basic system authorized by the National Capital Trans- portation Act of 1965 into a regional system, but, pending such transfer of functions and ae in this Act shall be construed to im- pair the performance by the cy of the functions and duties im by the National Capital Transportation Act of 1968- d) In order to provide the cooperation and assistance specified in subsection (c) of this section, the Agency is authorized to perform, on a reimbursable basis, planning, engineering and such other services for the Authority, as the Authority may request, or to obtain such - services by contract, but al] such assistance and services shall be ren- dered in accordance with policy determinations made by the Authority and shall be advisory only. (e) Amounts received by the Agency from the Authority as pro- vided in subsection (d) of this section shall be available for expendi- ture by the A y in performing services for the Authority. —Section 4. The United States District Courts shall have original jurisdiction, concurrent with the Courts of Maryland and Virginia, of all actions brought. by or against the Authority and to enforce sub- poenas issued pursuant to the provisions of Title III. Any such ac- tion initiated in a State court shall be removable to the appropriate United States District Court in the manner provided by the Act of June 25, 1948, as amended (28 U.S.C. 1446). Section 5. (a) All laws or parts of laws of the United States and of the District of (‘olumbia inconsistent with the provisions of Title III of this Act are hereby amended for the purpose of this Act to the extent necessary to climinate such inconsistencies and to carry out the provisions of this Act and Title JII and all laws or parts of laws and all reorganization plans of the United States are hereby amended and made applicable for the purpose of this Act to the extent necessary to carry out the provisions of this Act and Title III. (b) Section 202 of the National Capital Transportation Act of 1960 (Public Law 86-669, 74 Stat. 537), as amended by Section 7 of the National ee Transportation Act of 1965 (Public Law 89-173, 79 Stat. 666) is hereby repealed. Section 6. (a) The right to alter, amend or repeal this Act is hereby expressly reserved. (b) The Authority shall submit to Congress and the President copies of all annual and special reports made to the Governors, the Commissioners of the District. of Columbia and/or the legislatures of the compacting States. . (c) The President. and the Congress or any committee thereof shall have the right to require the disclosure and furnishing of such in- formation by the Authority as they may deem appropriate. Further, the President and Congress or any of its committees shall have access to all books, records and papers of the Authority as well as the right of inspection of any facility used, owned, ] , regulated or under the control of said Authority. (d) In carrying out the audits ss for in section 70(b) of the Compact the representatives of the General Accounting Office shall have access to all ree. accounts, er 2 records, reports, gs ve all other papers, things, or property belonging to or in use by the Board nl se Spa te dacilitate the audit, and they shall be afforded full facilities for verifying transactions with the balances or securities held by depositories, agents, and custodians. Approved November 6, 1966. 79 Stat. 663. — 40 USC 681 no Planning and © engineering services. Jurisdiction of courts, 62 Stet. 939; 63 Stat. 101. Advisory Bos 1 Repeal. 40 USC 662. Reports to Congress. Information, evallabiility. 4 : : i ’ : 4 GAO eudits. Ante, p. 134! — LOS OO SL a Ee ne ae Tee a ee Se PN a eee App. 64 THE FEDERALIST NO. 81 A Further View of the Judicial Department in Relation to the Distribution of Its Authority by Alexander Hamilton LET US now return to the partition of the judiciary authority between different courts, and their relations to each other. "The judicial power of the United States is" (by the plan of the convention) "to be vested in one Supreme Court, and in such inferior courts as the Congress may, from time to time, ordain and establish."{ 1} That there ought to be one court of supreme and final jurisdiction, is a proposition which is not likely to be contested. The reasons have been assigned in another place, and are too obvious to need repetition. The only question that seems to have been raised concerning it, is, whether it ought to be a distinct body or a branch of the legislature. The same contradiction is observable in regard to this matter which has been remarked in several other cases. The very men who object to the Senate as a court of impeachments, on the ground of an improper intermixture of powers, advocate, by implication at least, the propriety of vesting the ultimate decision of all causes, in the whole or in a part of the legislative body. The arguments, or rather suggestions, upon which this charge is founded, are to this effect: "The authority of the proposed Supreme Court of the United States, which is to be a separate and independent body, will be superior to that of the legislature. The power of construing the laws according to the spirit of the Constitution, will enable that court to mold them into whatever shape it may think proper; especially as its decisions will not be in any manner subject to the revision or correction of the legislative body. This is as unprecedented as it is dangerous. In Britain, the judicial power, in the last resort, resides in the House of Lords, which is a branch of the legislature; and this part of the British g>vernment has been imitated in the State constitutions in general. The Parliament of App. 65 Great Britain, and the legislatures of the several States, can at any time rectify, by law, the exceptionable decisions of their respective courts. But the errors and usurpations of the Supreme Court of the United States will be uncontrollable and remediless." This, upon examination, will be found to be made up altogether of false reasoning upon misconceived fact. In the first place, there is not a syllable in the plan under consideration which directly empowers the national courts to construe the laws according to the spirit of the Constitution, or which gives them any greater latitude in this respect than may be claimed by the courts of every State. I admit, however, that the Constitution ought to be the standard of construction for the laws, and that wherever there is an evident opposition, the iaws ought to give place to the Constitution. But this doctrine is not deducible from any circumstance peculiar to the plan of the convention, but form the general theory of a limited Constitution; and as far as it is true, is equally applicable to most, if not to all the State governments. There can be no objection, therefore, on this account, to the federal judicature which will not lie against the local judicatures in general, and which will not serve to condemn every constitution that attempts to set bounds to legislative discretion. But perhaps the force of the objection may be thought to consist in the particular organization of the Supreme Court; in its being composed of a distinct body of magistrates, instead of being one of the branches of the legislature, as in the government of Great Britain and that of the State. To insist upon this point, the authors of the objection must renounce the meaning they have labored to annex to the celebrated maxim, requiring a separation of the departments of power. It shall, nevertheless, be conceded to them, agreeably to the interpretation given to that maxim in the course of these papers, that it is not violated by vesting the ultimate power of judging in a part of the legislative body. But though this be not an absolute violation of that excellent rule, yet it verges so nearly upon it, as on this account alone to be less eligible than the mode preferred by the convention. From a body which had even a partial agency in passing bad laws, we could rarely expect a disposition to temper and moderate them in App. 66 the application. The same spirit which had operated in making them, would be too apt in interpreting them; still less could it be expected that men who had infringed the Constitution in the character of legislators, would be disposed to repair the breach in the character of judges. Nor is this all. Every reason which recommends the tenure of good behavior for judicial offices, militates against placing the judiciary power, in the last resort, in a body composed of men chosen for a limited period. There is an absurdity in referring the determination of causes, in the first instance, to judges of permanent standing; in the last, to those of a temporary and mutable constitution. And there is a still greater absurdity in subjecting the decisions of men, selected for their knowledge of the laws, acquired by long and laborious study, to the revision and control of men who, for want of the same advantage, cannot but be deficient in that knowledge. The members of the legislature will rarely be chosen with a view to those qualifications which fit men for the stations of judges; and as, on this account, there will be great reason to apprehend all the ill consequences of defective information, so, on account of the nat“ral propensity of such bodies to party divisions, there will be no less reason to fear that the pestilential breath of faction may poison the fountains of justice. The habit of being continually marshaled on opposite sides will be too apt to stifle the voice both of law and of equity. These considerations teach us to applaud the wisdom of those States who have committed the judicial power, in the last resort, not to a part of the legislature, but to distinct and independent bodies of men. Contrary to the supposition of those who have represented the plan of the convention, in this respect, as novel and unprecedented, it is but a copy of the constitution of New Hampshire, Massachusetts, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia; and the preference which has been given to those models is highly to be commended. It is not true, in the second place, that the Parliament of Great Britain, or the legislatures of the particular States, can rectify the exceptionable decisions of their respective courts, in any other sense than might be done by a future legislature of the United States. The App. 67 theory, neither of the British, nor the State constitutions, authorizes the revisal of a judicial sentence by a legislative act. Nor is there any thing in the proposed Constitution, more than in either of them, by which it is forbidden. In the former, as well as in the latter, the impropriety of the thing, on the general principles of law and reason, is the sole obstacle. A legislature, without exceeding is province, cannot reverse a determination once made in a particular case; though it may prescribe a new rule for future cases. This is the principle, and it applies in aJl its consequences, exactly in the same manner and extent, to the State governments, as to the national government now under consideration. Not the least difference can be pointed out in any view of the subject. It may in the last place be observed that the supposed danger of judiciary encroachments on the legislative authority, which has been upon many occasions reiterated, is in reality a phantom. Particular misconstructions and contraventions of the will of the legislature may now and then happen; but they can never be so extensive as to amount to an inconvenience, or in any sensible degree to affect the order of the political system. This may be inferred with certainty, from the general nature of the judicial power, from the objects to which it relates, from the manner in which it is exercised, from its comparative weakness, and from its total incapacity to support it usurpations by force. And the inference is greatly fortified by the consideration of the important constitutional check which the power of instituting impeachments in one part of the legislative body, and of determining upon them in the other, would give to that body upon the members of the judicial department. This is alone a complete security. There never can be danger that judges, by a series of deliberate usurpations on the authority of the legislature, would hazard the united resentment of the body intrusted with it, while this body was possessed of the means of punishing their presumption, by degrading them from their stations. While this ought to remove all apprehensions on the subject, it affords, at the same time, a cogent argument for constituting the Senate a court for the trial of impeachments. Having now examined, and, I trust, removed the objections to - Eee 6 tigi gS Rts WA tes es Papal, Side PEA Ae Pe ee er eT RIL Soka Ge tie eae Oe i aA iibetble Wis Be SNR, Seen App. 68 the distinct and independent organization of the Supreme Court, I proceed to consider the propriety of the power of constituting inferior courts,{2} and the relations which will subsist between these and the former. The power of constituting inferior courts is evidently calculated to obviate the necessity of having recourse to the Supreme Court in every case of federal cognizance. It is intended to enable the national government to institute or authorize, in each State or district of the United States, a tribunal competent to the determination of matters of national jurisdiction within its limits. But why, it is asked, might not the same purpose have been accomplished by the instrumentality of the State courts? This admits of different answers. Though the fitness and competency of those courts should be allowed in the utmost latitude, yet the substance of the power in question may still be regarded as a necessary part of the plan, if it were only to empower the national legislature to commit to them the cognizance of causes arising out of the national Constitution. To confer the power of determining such causes upon the existing courts of the several States, would perhaps be as much "to constitute tribunals,” as to create new courts with the like power. But ought not a more direct and explicit provision to have been made in favor of the State courts? There are, in my opinion, substantial reasons against such a provision: the most discerning cannot foresee how far the prevalency of a local spirit may be found to disqualify the local tribunals for the jurisdiction of national causes; whilst every man may discover, that courts constituted like those of some of the States would be improper channels of the judicial authority of the Union. State judges, holding their offices during pleasure, or from year to year, will be too little independent to be relied upon for an inflexible execution of the national laws. And if there was a necessity for confiding the original cognizance of causes arising under those laws to them, there would be a correspondent necessity for leaving the door of appeal as wide as possible. In proportion to the grounds of confidence in, or distrust of, the subordinate tribunals, ought to be the facility or difficulty of appeals. And well satisfied as I am of the propriety of the appellate jurisdiction, in the several App. 69 classes of causes to which it is extended by the plan of the convention. I should consider every thing calculated to give, in practice, and unrestrained course to appeals, as a source of public and private inconvenience. I am not sure, but that it will be found highly expedient and useful, to divide the United States into four or five or half a dozen districts; and to institute a federal court in each district, in lieu of one in every State. The judges of these courts, with the aid of the State judges, may hold circuits for the trial of causes in the several parts of the respective districts. Justice through them may be administered with ease and despatch; and appeals may be safely circumscribed within a narrow compass. This plan appears to me at present the most eligible of any that could be adopted; and in order to it, it is necessary that the power of constituting inferior courts shouid exist in the full extent in which it is to be found in the proposed Constitution. These reasons seem sufficient to satisfy a candid mind, that the want of such a power would have been a great defect in the plan. Let us now examine in what manner the judicial authority is to be distributed between the supreme and the inferior courts of the Union. The Supreme Court is to be invested with original jurisdiction, only “in cases affecting ambassadors, other public ministers, and consuls, and those in which A STATE shall be a party." Public ministers of every class are the immediate representatives of their sovereigns. All questions in which they are concerned are so directly connected with the public peace, that, as well for the preservation of this, as out of respect to the sovereignties they represent, it is both expedient and proper that such questions should be submitted in the first instance to the highest judicatory of the nation. Though consuls have not in a strictness a diplomatic character, yet as they are the public agents of the nations to which they belong, the same observation is in a great measure applicable to them. In cases in which a State might happen to be a party, it would ill suit its dignity to be turned over to an inferior tribunal. or eo 480 Pa te GAGE Mad PX Bante ae Lee ey ae eR en a ; & 3 - a App. 70 Though it may rather be a digression from the immediate subject of this paper, I shall take occasion to mention here a supposition which has excited some alarm upon very mistaken grounds. It has been suggested that an assignment of the public securities of one State to the citizens of another, would enable them to prosecute that State in the federal courts for the amount of those securities; a suggestion which the following considerations prove to be without foundation. ; It is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent. This is the general sense, and the general practice of mankind; and the exemption, as one of the attributes of sovereignty, is now enjoyed by the government of every State in the Union. Unless, therefore, there is a surrender of this immunity in the plan of the convention, it will remain with the States, and the danger intimated must be merely ideal. The circumstances which are necessary to produce an alienation of State sovereignty were discussed in considering the article of taxation, and need not be repeated here. A recurrence to the principles there established will satisfy us, that there is no color to pretend that the State governments would, by the adoption of that plan, be divested of the privilege of paying their own debts in their own way, free from every constraint but that which flows from the obligations of good faith. The contracts between a nation and individuals are only binding on the conscience of the sovereign, and have no pretensions to a compulsive force. They confer no right of action, independent of the sovereign will. To what purpose would it be to authorize suits against States for the debts they owe? How could recoveries be enforced? It is evident, it could not be done without waging war against the contracting State; and to ascribe to the federal courts, by mere implication, and in destruction of a preexisting right of the State governments, a power which would involve such a consequence, would be altogether forced and unwarrantable. Let us resume the train of our observations. We have seen that the original jurisdiction of the Supreme Court would be confined to two classes of causes, and those of a nature rarely to occur. In all App. 71 other cases of federal cognizance, the original jurisdiction would appertain to the inferior tr‘bunals; and the Supreme Court would have nothing more than an appellate jurisdiction, "with such exceptions and under such regulations as the Congress shall make." The propriety of this appellate jurisdiction has been scarcely called in question in regard to matters of law; but the clamors have been loud against it as applied to matters of fact. Some well-intentioned men in this State, deriving their notions from the language and forms which obtain in our courts, have been induced to consider it as an implied supersedure of the trial by jury, in favor of the civil-law mode of trial, which prevails in our courts of admiralty, probate, and chancery. A technical sense has been affixed to the term "appellate," which, in our law parlance, is commonly used in reference to appeals in the course of the civil law. But if I am not misinformed, the same meaning would not be given to it in any part of New England. There an appeal from one jury to another, is familiar both in language and practice, is even a matter of course, until there have been two verdicts on one side. The word "appellate," therefore, will not be understood in the same sense in new England as in New York, which shows the impropriety of a technical interpretation derived from the jurisprudence of any particular State. The expression, taken in the abstract, denotes nothing more than the power of one tribunal to review the proceedings of another, either as to the law or fact, or both. The mode of doing it may depend on ancient custom or legislative provision (in a new government it must depend on the latter), and may be with or without the aid of a jury, as may be judged advisable. Ii, therefore, the re-examination of a fact s once determined by a jury, should in any case be admitted under the 3 proposed Constitution, it may be so regulated as to be done by a : second jury, either by remanding the cause to the court below for a second trial of the fact, or by directing an issue immediately out of the Supreme Court. But it does not follow that the re-examination of a fact once ascertained by a jury, will be permitted in the Supreme Court. Why may not it be said, with the strictest propriety, when a writ of error is brought from an inferior to a superior court of law in this State, that App. 72 the latter has jurisdiction of the fact as well as the law? It is true it Cannot institute a new inquiry concerning the fact, but it takes cognizance of it as it appears upon the record, and pronounces the law arising upon it.{3} This is jurisdiction of both fact and law; nor is it even possible to separate them. Though the common-law courts of this State ascertain disputed facts by a jury, yet they unquestionably have jurisdiction of both fact and law; and accordingly when the former is agreed in the pleadings, they have no recourse to a jury, but proceed at once to judgment. I contend, therefore, on this ground, that the expressions, “appellate jurisdiction, both as to law and fact,” do not necessarily imply a re-examination in the Supreme Court of facts decided by juries in the inferior courts. The following train of ideas may well be imagined to have influenced the convention, in relation to this particular provision. The appellate jurisdiction of the Supreme Court (it may have been argued) will extend to causes determinable in different modes, some in the course of the COMMON LAW, others in the course of the CIVIL LAW. In former, the revision of the law only will be, generally speaking, the proper province of the Supreme Court; in the latter, the re-examination of the fact is agreeable to usage, and in some cases, of which prize causes are an example, might be essential to the preservation of the public peace. It is therefore necessary that the appellate jurisdiction should, in certain cases, extend in the broadest sense to matters of fact. It will not answer to make an express exception of cases which shall have been originally tried by a jury, because in the courts of some of the States all causes are tried in this mode;{4} and such an exception would preclude the revision of matters of fact, as well where it might be proper, as where it might be improper. To avoid all inconveniences, it will be safest to declare generally, that the Supreme Court shall possess appellate jurisdiction both as to law and fact, and that this jurisdiction shall be subject to such exceptions and regulations as the national legislature may prescribe. This will enable the government to modify it in such a manner as will best answer the ends of public justice and security. This view of the matter, at any rate, puts it out of all doubt App. 73 that the supposed abolition of the trial by jury, by the operation of this provision, is fallacious and untrue. The legislature of the United States would certainly have full power to provide, that in appeals to the Supreme Court there should be no re-examination of facts where they had been tried in the original causes by juries. This would certainly be an authorized exception; but if, for the reason already intimated, it should be thought too extensive, it might be qualified with a limitation to such causes only as are determinable at common law in that mode of trial. The amount of the observations hitherto made on the authority of the judicial department is this: that it has been carefully restricted to those causes which are manifestly proper for the cognizance of the national judicature; that in the partition of this authority a very small portion of original jurisdiction has been preserved to the Supreme Court, and the rest consigned to the subordinate tribunals; that the Supreme Court will possess an appellate jurisdiction, both as to law and fact, in all cases referred to them, both subject to any exceptions and regulations which may be thought advisable; that this appellate jurisdiction does, in no case, abolish the trial by jury; and that an ordinary degree of prudence and integrity in the national councils will insure us solid advantages from the establishment of the proposed judiciary, without exposing us to any of the inconveniences which have been predicted from that source. PUBLIUS The Federalist No. 81, Footnotes 1. Article 3, section 1. 2. This power has been absurdly represented as intended to abolish all the country courts in the several States, which are commonly called inferior courts. But the expressions of the Constitution are, to constitute “tribunals INFERIOR TO THE SUPREME COURT;” and the evident design of the provision is to enable the institution of local courts, subordinate to the Supreme, either in States or larger districts. It is ridiculous to imagine that ilsaicdnshsinieimnimiameiia imamate ij ee ae ee App. 74 country Courts were in contemplation. 3. This word is composed of JUS and DICTIO, juris dictio, or a speaking and pronouncing of the law. 4. I hold that the States will have concurrent jurisdiction with the subordinate federal judicatories, in many cases of federal cognizance, as will be explained in my next paper. App. 75 THE FEDERALIST NO. 82 A Further View of the Judicial Department in Reference to Some Miscellaneous Questions by Alexander Hamilton THE erection of a new government, whatever care or wisdom may distinguish the work, cannot fail to originate questions of intricacy and nicety; and these may, in a particular manner, be expected to flow from the establishment of a constitution founded upon the total or partial incorporation of a number of distinct sovereignties. "Tis time only that can mature and perfect so compound a system, can liquidate the meaning of all the parts, and can adjust them to each other in a harmonious and consistent WHOLE. Such questions, accordingly, have arisen upon the plan proposed by the convention, and particularly concerning the judiciary department. The principal of these respect the situation of the State courts in regard to those causes which are to be submitted to federal jurisdiction. Is this to be exclusive, or are those courts to possess a concurrent jurisdiction? If the latter, in what relation will they stand to the national tribunals? These are inquiries which we meet with in the mouths of men of sense, and which are certainly entitled to attention. The principles established in a former paper{ 1} teach us that the States will retain all preexisting authorities which may not be exclusively delegated to the federal head; and that this exclusive delegation can only exist in one of three cases: where an exclusive authority is, in express terms, granted to the Union; or where a particular authority is granted to the Union, and the exercise of a like authority is prohibited to the States; or where an authority is granted to the Union, with which a similar authority in the States would be utterly incompatible. Though these principles may not apply with the same force to the judiciary as to the legislative power, yet I am inclined to think that they are, in the main, just with respect to the former, as well as the latter. And under this impression, I shall lay it SS edi oi eh i r ‘ ERE aes a We Soa Aa he App. 76 down as a Tule, that the State courts will retain the jurisdiction they now have, unless it appears to be taken away in one of the enumerated modes. The only thing in the proposed Constitution, which wears the appearance of confining the causes of federal cognizance to the federal courts, is contained in this passage: "The JUDICIAL POWER of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress shall from time to time ordain and establish.” This might either be construed to signify, that the supreme and subordinate courts of the Union should alone have the power of deciding those causes to which their authority is to extend; or simply to denote, that the organs of the national judiciary should be one Supreme Courts, and as many subordinate courts as Congress should think proper to appoint; or in other words, that the United States should exercise the judicial power with which they are to be invested, through one supreme tribunal, and a certain number of inferior ones, to be instituted by them. The first excludes, the last admits, the concurrent jurisdiction of the State tribunals; and as the first would amount to an alienation of State power by implication, the last appears to me the most natural and the most defensible construction. But this doctrine of concurrent jurisdiction is only clearly applicable to those descriptions of causes of which the State courts have previous cognizance. It is not equally evident in relation to cases which may grow out of, and be peculiar to, the Constitution to be established; for not to allow the State courts a right of jurisdiction in such cases, can hardly be considered as the abridgement ofa preexisting authority. I mean not therefore to contend that the United States, in the course of legislation upon the objects intrusted to their direction, may not commit the decision or Causes arising upon a particular regulation to the federal courts solely, if such a measure should be deemed expedient; but I hold that the State courts will be divested of no part of their primitive jurisdiction, further than may relate to an appeal; and I am even of opinion that in every case in which they were not expressly excluded by the future acts of the national legislature, they will of course take cognizance of the causes App. 77 to which those acts may give birth. This I infer from the nature of judiciary power, and from the general genius of the system. The judiciary power of every government looks beyond its own local or municipal laws, and in civil cases lays hold of all subjects of litigation between parties within its jurisdiction, though the causes of dispute are relative to the laws of the most distant part of the globe. Those of Japan, not less than of New York, may furnish the objects of legal discussion to our courts. When in addition to this we consider the State governments and the national governments, as they truly are, in the light of kindred systems, and as parts of ONE WHOLE, the inference seems to be conclusive, that the State courts would have a concurrent jurisdiction in all cases arising under the laws of the Union, where it was not expressly prohibited. Here another question occurs: What relation would subsist between the national and State courts in these instances of concurrent jurisdiction? I answer, that an appeal would certainly lie from the latter, to the Supreme Court of the United States. The Constitution in direct terms gives an appellate jurisdiction to the Supreme Court in all the enumerated cases of federal cognizance in which it is not to have an original one, without a single expression to confine its operation to the inferior federal courts. The objects of appeal, not the tribunals from which it is to be made, are alone contemplated. From this circumstance, and from the reason of the thing, it ought to be construed to extend to the State tribunals. Either this must be the case, or the local courts must be excluded from a concurrent jurisdiction in matters of national concern, else the judiciary authority of the Union may be eluded at the pleasure of every plaintiff or prosecutor. Neither of these consequences ought, without evident necessity, to be involved; the latter would be entirely inadmissible, as it would defeat some of the most important and avowed purposes of the proposed government, and would essentially embarrass its measures. Nor do I perceive any foundation for such a supposition. Agreeably to the remark already made, the national and State systems are to be regarded as ONE WHOLE. The courts of the latter will of course be natural auxiliaries to the execution of the laws of the Union, and an appeal from them will as naturally lic to that tribunal which is destined to unite and assimilate the principies of / ee os ‘ab, a App. 78 nationa! justice and the rules of national decisions. The evident aim of the plan of the convention is, that all the causes of the specified Classes shall, for weighty public reasons, receive their original or final determination in the courts of the Union. To confine, therefore, the general expressions giving appellate jurisdiction to the Supreme Court, to appeals from the subordinate federal courts, instead of allowing their extension to the State Courts, would be to abridge the latitude of the terms, in subversion of the intent, contrary to every sound rule of interpretation. But couid an appeal be made to lie from the State courts to the subordinate federal judicatories? This is another of the questions which have been raised, and of greater difficulty than the former. The following considerations countenance the affirmative. The plan of the convention, in the first place, authorizes the national legislature “to constitute tribunals inferior to the Supreme Court."{2} It declares, in the next place, that "the JUDICIAL POWER of the United States shall be vested in one Supreme Court, and in such inferior courts as Congress shall ordain and establish": and it then proceeds to enumerate the cases to which this judicial power shall extend. It afterwards divides the jurisdiction of the Supreme Court into original and appellate, but gives no definition of that of the subordinate courts. The only outlines described for them, are that they shall be "inferior to the Supreme Court," and that they shall not exceed the specified limits of the federal judiciary. Whether their authority shall be original or appellate, or both, is not declared. All this seems to be left to the discretion of the legislature. And this being the case, I perceive at present no impediment to the establishment of an appeal from the State courts to the subordinate national tribunals; and many advantages attending the power of doing it maybe imagined. It would diminish the motives to the multiplication of federal courts, and would admit of arrangements calculated to contract the appellate jurisdiction of the Supreme Couri. The State tribunals may then be left with a more entire charge of federal causes; and appeals, in most cases in which they may be deemed proper, instead of being carried to the Supreme Court, may be made to lie from the State courts to district courts of the Union. App. 79 PUBLIUS --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_0549%3A2. Public record. Not legal advice.