Brief for the United States as Amicus Curiae — National Mutual Insurance v. Tidewater Transfer Co.

Supreme Court brief1949

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Text

INDEX 3

ED . aah Repintine ot

7 ilean Walia sat a cos Stee cade rs ee

Jurisdiction... —.- cadet subabdeicices ta Pah Glaltoe aes |

. Question presented... 22. ss Ree SOPRA IER SS Soe 2

“ ‘Statute and constitutional provisions involved.” : zw: ES CEI 3

_ Interest of the: United pena we Aine eee teil wanes ———- ae

- Statement... ---.4-542,..-.-22-)--------- ee — 5°

' Summary of argument---..».---_-- eworewad wow ous dos aceae oe

“RSQ. <n he ne dawn ease 22 ceeaLwe pee ewsn “13

= aie © The Act of April 20, 1940, was s authorized by Article ite }

ie _ ~+0f the Constitution... .. phe J a 15

ee : The Act of April 20, 1940 “— a valid. exercise of the

plenary power ne Congress, to legislate for the Dis-

A. The: Boos ‘power 8f Congress over the Dis-.

. .. triet of Columbia and its citizens may be ex-:

_. . ereised beyond the confines of the District... 33

eee ms _ B.*Congress may invest the federal district courts ° ae

in the States proper ‘with judicial functions _

other than, those enumerated in Article a. 37

? Conclusion: PSRs mig Nadel Meta Wile ikea wa pe wad 3 SAME,

Bae | :

% are : CITATIONS — S

-Cases:” | : 5 Wis

ae - American ‘Insurance Co. v..: Canter, i Pet. ‘511 Se apasey. 5 doin 28,40 |

Anderson v. U. 8. Fidelity & Guaranty Co., 8 F: 2d 428__ 24

. Andres v. United States, 333 U. 8. 740.2... eke las 17

Atchison, T.-& S. F. Ry. v. Sowers, 213 U. 8. 55_.2._.... a SHS"

Atlantic Cleaners & Dyers v. Unijed States, 286 U. 8.427... 18,22”

.Baketite Corp: Ex parte, 279: U..8. 438_....0.5....--- 28, 29,38 .*.

. Bank of the United States v. Deveaviz, 5 Cr: 61__.2--..-..2 20,30 -

" Barney v. Baliimore City, 6 Wall. _, aR ae Sir ae: ae.

Behlert v. James Foundation, 60 F. Supp. 706 aacsecnacars 44

Callan v. Wilson, 127 U.S. 540.4... 5) psec ee

Capital Traction Co. v. Hof, 174 U. Ss. 1. a adatnees 27.

Central Stetes Cooperatives ‘v.: Watson mia “Srenib ‘ation

Cae eo ®, a Oe, pigs for Sertiprart. pending, No, 43, ;

thi ‘Term... ened a Sec a yet owe rote, 50 “3

Ciasel v. McDonald, Féd. Cas. No. 2,729... ~PQe pana’: ee

ohens v. Virginia, 6 Wheat. i cnkarp coy barw chon s cag akg OO

802333-—48——1 i eee | ee cua.

: Se ee ee | ZN \

—

° aa! “ ty

ot L

‘Cases—Continued © Serie 4 Page

Darst v. City of Peoria, 13 Fed. 561: eed Sexes ee

_ Demarchi c. Olmos, 29 Faligs de la 8. C. 363 (Argentina); . a &

Downepy. Bidwell, 182 U. 8. 244... ~~... 16, 22,24,28,49

Duzg v. Woolley, 72 F. Supp. 422... -- 2 2... -. 2-2 Y ee

_ Eisner v. Macomber,.252 U.S. og ee Wiliams 17.4"

Embry v. Palmer, 107 U. 8 SS Se fee emer Spee -.. 19,35

Erie R. Co..v. Tompkins, 304.U. 8. 64.02.22. 2... ee «0° 28

Federal Deposit Insur, Corp. v. George-Howard, 55 F. Supp. ‘

921, reversed, 153 F. 2d ot, certiorari Ganied, 329 U. &.

YE aR an Re “Ta?

Feely v. Sidney S. Schupper Interstate | Hauling ystem, 2 ae

Wa ea bbe cchidpneetithaeess¥snnkndaGexeccnse 14

- Fjrst Carolinas Joint Stock Lend ‘Bank v. Page, 2 F. Sane.

Gioia waaeacuses acieananbiasecetnnenr’. ee ee ae

. Geofroy v. Riggs, 133 U. 8. 258_....---. VEER ASE 16

Glaeser-v. Acacia Mutual Life Association BBP. Sins: 925. .° 14

‘Gordon v. United States, Bais Oi OE od pec nwaa p ncecns 41

Gurdon v.. United States, Wall. 561........--..-\.-... > 44

.°. Grether v,.Wright, 78 Fed. _ Besse Ah ESA Se § &

Guaranty Trust Co. v. York, 326 U.:S. 99_..-....-...-2 . 30

_ Hanley v. Kansag City So. Ry. Co,, 187 U. ) Sh: SPN ef

- Hayburn’s Case, 2 Dall. 409__\! EC coi EEL ES SS op ee 9, 44,

: Hepburn & Dundas -v. “Ellzey, 2 Cr: 445 ae Gsatine caiee ke ,

— 12, 13, 20, 21, 23, 24 2B, 46, 49

“Madi Jamieson, 166 U.S. $06:. =... ckeseeunee MASE *.-22, 24

Hurd v. Hodge, 334 U. 8. 24.....--.-.-.---.-- Eee 2a | %

Indianapolig v. Chase Nat. Bk., 314 U.S. 63. Spe eee BERD g

James v. Appel, 192 U. 8.:129.....:-.-.-.- cei 0 XK

Johannessen v, United States,.225 U.S. 227_-.*.----. =. ae

Kansas v. Colorado, 206 U. 8: 46_:_.-.-:.-.--- aia: ey

Keller v. Potomac Electric Go., 261 U. 8. 428. chek 3 ts os dbp alaincs 7 Jae

Kendall v. United States ex rel. Stokes, 12 Pet, 524... Ade 2

La Abra Silver Mining Co. v. United States, 175 U.S. ayy 45

Lamar v. United States, U. 8: 8... ienctekeia ts ae

Land Company v, Elkins, 20 Fed. a Stevia ae

Lockerty'v. Phillipe, . i: 3 of See Sar 20—~CW

Loughborough v. Blake, 5 Wheat. 317_---- --- eniee SOS Fa,

- Louisviile ete. Railroad Co. v. Leison,'2 How. 497_. ee ae

_ McAllister ¥. United States, 141 U. 8. 174. aaa: eats 28

_McElmoyle v. Cohen, 13. Pet. 312... __,,---- ess 35

McGarry ¥. City of Bethlehem, 45 F. Supp. 385,_ wo Bes.

Massachusetts, In re, 197 U, 8. 482.....-. 2. -.-- ‘os 24-

_ Maxwell 'v. Federal Gold & Copper Co., 155 Fed. 110 owae. a

” Metropolitan R. R. Co. v. District of Columbia, 132 U = tz: 16

Mississippi: Pub, Corp. v. rege an 326 U. sicdemcnesimte 36

Morriav. United States, 174 U. 8. 196 Hitinp oot. ~ ae

o :

J - : : . é : ra

AM : ae ae re . = : a

" a ° as a+ U1 ; oe *

‘Casee—Cosittiauidd” , eee Page

. Mutual Life ae Co. ¥: Lott, 9b Pad. WAL 6 oe oF as 24 me

Neiid v. District of Columbia, 110 F. 2a

New Orleans v. Winter; 1 Wheat. Oh.

$6.52. 5:2-s-5, 28,37

. oO

ee eT

‘. _ O'Denoghue United States, 289 U.S. 5 Sie

: 27, 28, 29, 30, 32, 36, 38, 41, 49

_ Osborn v. United States, 9° PM ssda . 45.

Ostrow v. Samuel Brilliant Cov 66 F. Supp. santos tein | EF

- Paut ¥. Virginia, 8 Wall. 168... .*--2-------2. -- Seo >

Pembina Can. cares . Vv. Finials 125 U. 8. pane <a

Piequet v. Swan,\Fed Cus. ya SSF Nmepepye iow yer Ree a)

. Pope v..United S 1 U58. 3o0pio ti aes 41, 44.

Postum Cereal Co. alifornia Fig Nut Co., ts U. 8: 693. -28

-Puerto Rico v. Rustell & Co., 288 U. S:

POS eae

Perea aM me, $20 U.S, 178. My. 40.

, Seddon v. Virginia, ete. +, 36 Fed. eT eh | pe = 24.)

” Serb v. PitoS Cr. 3322-22... 8 ee ee | AN

Shoemaker. United sie, 147 U.S. yee I il

* Smiley y/ Holm, 285 U. 8855-2

Seerg coe Vee dae

. APexas v. White, 7 Wall. 7007 Sick ionk oe ; 17, 18

/ Toland v, Sprague, 12 Pet, perenne catresestee 37

Towne v. Eisner, 245 U. GSE ee ie ey ae ae"

Treinies v. Sunshine ‘Mining Co., 308 U.S. 66. i Sacco coy ees i

United States v. Classic, 313 U. S. 299

| United States y. Ferreira, 13. How, 40::.-.--

ee ers a a buts

m Kansas Ry. Co. v. Briscoe,144 0.8. 188........ 45 - |

burgh *. Hennick, 129 U. $."141____. iStceveunes SOO

v. Silver Bow magi Commissioners, es 8. 438_. 16

* United States + Pfitach, 256 U. 8. 547...2...0-

"United States v. Sherwood, 312 U. 8. 584_...- 2... _.. »\ 44

United States v. Whelpley, 125 Fed. 616...-----...-...~. .19

‘Vasse v. ‘Mifflin, Fed. Cas. No. 16,895.

eke us EiSa ce ne IE

Watson v. Brooks, 13 Fed. e.. pia buss» negek-caatue ane 1G, DO

* Wescott v. Fairfield, Fed. as. No. FRAN Moet 24

Williams v. United States, 289 U, S. 553... .. --.29, 39; 41, 43, 440

_ Willis v: Dennis, 72 F. Supp. ‘$53. ees Soe 2"

- Wilson y. Guggenheim, 70 F. Supp: 417. .------------ ies 14

. Winkler v. Daniels, 43 F. Supp. sii hela oc ige os 14

‘Constitution and Statutes: — «

* Constitution of thé United States: nah ¥

Article I: Mage

= Bee. ‘8: ‘ 3 a . -.

ye gt CLA eat aa ak aia Oe he a pitiinieh oe pS udewe 29°.

aa sas. ges ese oe gies ciate ~ 19

¢ eS P ee 3; 4,15 ©

Ci. 32... Wow np outing +o ggg sacnet have ee

. Gs sc ncbetaen nwa es- anh: rece we

a e AE Se

ep eet. . a

: os

oo . ayer ee ae

—_— ‘ ° - ; . IV %

Panstibiiion and ‘Statutes—Continued ere sen

arene " ro United States—Continued piles ot MNT

Lt, RES PP asbpee sei ca bent Xe 2-4. 9,12, 19, 44.

: ee, Hf dct -s-+--- dete nee sede cnesen dss cerana 4

See. 2/2..... Pe scx so peat eK ewe lem Lace! 5, 15, 45

oe Dee ise ie eae Ea oer eT ee Le Bae Ee

Sark Article FV; fec..8, CL.2..---.3:-.-. a ere

‘Act of July 16,1790, 1 Stat. 130__.. 2.222.222 ee

. . Act of February 27,. 160], 2 Stat. Se, Aye yao oe ed, tie

Act of May 3, 1802,.2 ee WG tees yee

- Act of April 20, 1940, ©. 117, 54 Stat. Re seis: S cihais 2, 3, 13,

: Judicial Code (28 ©. 8. C C. (1940 ed.) cih, 1.) | Cape eae ees ee

2 See: 24 (1)_'....-- eae re ak cor Seth aha Bae i geass ag 3

‘See. 24 (1) (b)_. ida ede sealer y ace acy. Sy

Judiciary Act oft17389, 1 Stat. 73_-. sae test ecssce B®

MDG citiae ead nd a aces ab os buku. § Se ke 20

. Public.Law. 773, 80th Cons. 2d sew Sat are a"

\ oy _ Bee. 1: iS tay es abe é

| Ss eer So AS ge ae | *

2 4988 OD). cs dix s5ideenee cau snasacsae. 2

= EO ee ees wes tchastercat ES

2 -§§ 2671-2680..%_.___. pehieaeieSl uwasgivaes > SBS

BING See. Wvsisic.s's oo Se ee jie is De Rac aes cote * ame * ‘2 ‘

aN Revised Statutes: ee ee Oe sgt Pa oy esis ee

j Sec. 1978. i be bh oe poate ere ee Ee Rm ee ee ee yar 16... é

Misbellaienue: re ee ET Ses

44 Ann.-Cong., 874-081 passim. ...:...-../... ? 93-24

3 Beveridge, Life of Marshall (1919), p. 8? i siadigia Gute AT

Caemmerer, A Manual on the Origin and¥Development of —

~~ - Washington (1939), Sen. ‘Doe! No. 178, Toth. Cong; 3d ‘nf

» seen. WO Rn eis eS as aie sess 49 ;

Chafee, Federal Interpleader. Since the ‘Act of 1988, 4940) ‘

es 49 Yale L. J. ETT, MG-W6 255 oe ans 37,28

Chaf@, The Federal Interpleader Act—of- LoS 1936) 45 ee Sa

Borah. | iz O08, PIB 6 weer aae mena fag ce dene BO

“a+ . Clash, ‘Diversity of Citizenship Jurisdiction yn the Federals

“ ~-Corerts,(4988)-19 A,B, ASA. bi ES eer. ade -

~ (1946) 46 Col. L. R-125-........- SIRE ett Lae ey te | aw: aoe

Comment (The Distinction Bet wert Légisistive and, Com». eS

stitutional Courts), (1933) 43 Ya.e L.’J..316, 323_...2.. . 41 ~

86 Cong.. Ree. 2551, 2756, 8015, 3938, _ 4163, 4286, 4433, eee ee

' $463,-4563, 4889... 2. «WB

Dodd, Chief Justice Marshall ail Vi irginia; 1813-1821 5 ‘L

- (1907), 12 Amer: si Rev. 776, 781- Seer a we

ve pepe ; | ce Diane aE es ene ure al

Na @ Se —

i ; ; ee

eae ae: eS

¥ :

, ia: :

- Miscellaneous—C vahinion Page

, Dykes and Keeffe, The 1940. Aina: ‘te the Diversity of ; : ‘

. Citizenship Clause, (1946) 21 Tulane. L. k. 171__.. i? E.

: Federalist, The, No. eects otk . CES ds 30.

.* Frank, Historical. Bases ‘of the Federal : J udicial ‘System, ‘

| (1948) 13 Law and Contemporary Penblenia $2225... t 18,81 ®

‘| reamfarter A Note on Diversity Jurisdiction—In Reply m=:

mal Professor. Yntema, (1931) 79 U. Pa. L.R. 1097-222... 31 *

Frankfurter, Distribution of Judicial Power Between United

States and, State Courts, (1928) 138 Corn. L. Q. 499. ___- .. 16, 31

. Pfankfurtgr and Landis, The Business of the Supreme Court,-°

8-11 (1927) __ 2... hs UR Or sr ee ey Sew dae | ee

Friendly, . “The Historic. Basis of Diversity J urisdiction, ~ 2s

(1928) 41 Harv. L. Rev. WN sie esa st ste acs Veseees 45,30 .°

(1943y A George. Washington L. R. ee 60

(1948) (61 Harv. L..R. pon EE te Oe Oe a eee ee 50

i: e ‘Rep. No. 1756, 76th Corig., 3d sess... --.---_.-- . 15, 27,46

“H. R, 4526, 72nd Cong., Ist sess... £.-.-2--20--2-2 8 Fearh?

H.R. 10594, 72nd Cong.; Ist seas___._. oS etc lwete ae

23 H.R. 11508, 72nd Cong., Ist sess? ...._-----_-.- en EE:

“Howland; Shall Federals Jurisdiction of Controversies

Me ‘Between. Citizens of Different States Be Preserved?, (1932)

tI Be Bs aso Soo ec nen antes 32) ~=«

2 Katz, Federal Legislative Courts, (1930) 43 Harv. ‘tew ite. ‘

{ ~~ 894, 902-903," a EL IE Re IY pee 29, 43, 44, 45

Letter of Thomas Jefferson to Joel Barlow, May 3,1892,X

“Writings of Jeffersqn (Mem: ed. 1903), p. 321_...------ 47

. Limiting Jurisdiction of Federal ‘Courts—-Comment by. : :

> Members of Chicago’ University Law School Faculty, ee

_ (1932) 31 Mich. L.' R. soon ee ee Ser ewaas 32

(1943) 5 Louisiana ©. R, 478 yn, ree ah eg eT a Rees ae . 50

MeGovney, A:Supreme Court Fiction, (1943) 56 Hary. L. =

at ‘Rev. 853, 854-855, 1090 1225... - =. 2 _- :___. 20, 29, 43:

<= MaKanna,-Diveraity-of Citizenship Clause Extended, (1949)

Se eS oe a ne desta 50

98) 46 Mich, u. R. _. aes soa be i eR ..

Some “Mussman and Riesenfeid, Jurisdiction in Bankruptey, an

; ~ (1948) 13 Taw and Contemporary Problems 88, 89..... 37

>. Naylor, Fhe District of Columbia, Its Legal. Status, (1982) ees

Ol SBE Ope. Tas M52. ck en ee.

_ Note (1934), 34 Col. _ LL. R.°344, 353-354, BBS, ‘te. 66, 67. 43,44 °°

"Note (1947), 60 Harv? L, R.424, 426-428. 50 eh

> - Note, Section 301 ‘(e)_of the Taft-Hartley Act: A -Consti- re eagek

tutional Problem of Federal Jurisdiction, (1948) 57 pr

L368, a eta 45 fet

== Wale 946).66-Vale Le J SS ee re eee, Ven

Or Ay. Gee. Ae 5 iE eee ye peer ere 17. se]

’ i

; vi ase

-Miacellaneous—Continued ‘ Page”

- Parker, The Federal Jurisdiction one Recent Attacks Upon It,

(1932) 18 A. BoA. 3.488. no. estb enw leceet lee . 82

“Rathvon, and Keefe, Washingloniars: and Roumanians, —-

~ + (1948) "27 Nebraska Li. R. 375......----- o---#....-. 24, 45, 50

Riesenfeld and Hazard, Federal Courts in Foreign Syatems,

-. (1948) 13 Law and Contemporary, Problems 29; 44-45,

- nm, 130..-.--- iS, aaa od 6 heen gene Vahaw site a Gamindatc dint 26

§. 1, 1st Cong., Ist sess... .__. To swnehde 4 Rnsdibawte iis &

8. 937, 72nd Cong.,. Ist sess... .-- 2 ee eee .

8. 939, 72nd Cong., Ist sess__.-.....--- rere ys foee ae

-. B. Rep. 530, 72nd Cong., Ist sess... .- -- - tawaate Sides wliedtl Rape

‘S$. Rep. 701,.72nd Cong.; Ist sess..._ -- Palen a pak site nee 31

S. Rep..1399, 76th Cong, 3d sess... _- , Sb at idbwle ‘wens SO

2 Story, Commentaries on the Constitution Gth ea, 1891),

-- §§1690-1692_. 22.2 -2-_2 22! dbtanbiawesitna SP oo. ee

(1942) 21 Texas 1, ee lal Or aa ae EEN 50

°° United | States Department: of Commerce, Bureau of the

". QOensus, Current Population Reports, Series P-25, No.:12, Bi Be

: < Pp. bg me wb we Hm nmicia mmwcaemanatdtbasedeecesaesct@esneseesceacese : - 47

' United States Department of. Commerce, Sixteanth Cen-

_ sus of United weatee, 1940, Population, vol. II (1), pp.

Walker; Citizens a the District of Columbia and the Federal

- Diversity Jurisdiction, (1948) 15 D, C. Bar Adan. J. 55... 50

' Warren, New Light on the History of the Federal . Judici-

, ary Act of 1789, (1923) 37.Harv. L. R. 49, 79, 89-90. , 20, 22, 23 .

- Washington Post,. The, Sunday, February 1, 1948-._-.--- 47,48 ©

Yntema, The J erisdichion of. Federal Courts in Controversies

between Citizens of Different States, (1933). 19_A. B. A. J.

= ER a ca Beast nancy 32

= ‘Yntema and Jaffin, Preliminary Analysis of Concurrent

Hsteriotiion, (i881). 79. Uz of Pa. L. Rev. 869... -.- bedied 16,32

Sue aye ot ned Sis

es - OctosEr Teas 1948.

are ee ee —

Naticwan Mutva a INSURANCE Company OF, THE *

District OF CoLUMBIA, PRITTIONER «

TIDEWATER TRANSFER CoMPANY, titeibleics? 1

CORPORATION. OF THE ‘STATE OF Vikarnia’ Att,

Sennen ee ~~ —<——$——$_— —

—

on war OF CERTIORARI T0 THE UNITED STATES CIRCUIT

' COURT OF: APPEALS FOR THE FOURTH CIRCUIT.

BRIEF FOR THE quarts sparen AS AMICUS QURIAE.

: OPINTONe 1 RELOW ies

‘The District Court of the: United States for a

the District of Maryland did not annpunee any

- Opinion. The majority and dissenting 4 opinions

of the United States Circuit Court’ of Appeals

~ for the Fourth Circuit (R. 10-22) ¢ are: reported's at

165 F.2d 531, Pei N re :

4 -.\ JURISDICTION -

3 The judgment of the Circuit Court ‘of Appeals

“was entered on December 31, 1947 (R. 22).. The

_. ‘petition: fora’ writ of certiorari was filed .on

ee a

“ a

~~ . . “ . . - 7 ‘s af -

~ ° * < f 2 . j , i e

: . P ‘ ee - ean : ; : -

Se oes hia te aie

2 Y

- March 3, “spp cai granteu on Mare h 29, 1948. .

_°. The jurisdiction af ‘this Court is invoked, under | !

os Section 240 (a) of ‘the J udicial Cede, as. amended”

(now 28 U. 8, ©. 12545, : : | i

PS $4, “QURSTION PRESENTED:

“Whether the ge of April 20, 1940, ¢. 117, 34

Stat. 143, to tlie extent that‘it. amtnded Section 24

(1) (b)-6f, the Judicial Code (28 U.S. C. 41 (1°

__(b)) sé as to vest in the district ‘courts of the

United States jurisdiction of suits of a civil na- |

ture “between citizens of the District of Colum-

bia, * ce and anys § State. or Territory,” v was -

ga constitutional enactment.’ Feith teg

“Pp y

a0 J une 25, 1948, after certiorari hid been eriintl here;

' the Act of April 20, 1940, and Section 24-(1) {b* of the Judi-.’

cial Code were refraaled ¢P. L: 773, 80th Cong., 2d sess., sec.

. 89) and the pertinent provisions of the Code. ieee to read

. as follows (id., sec. 1, § £332) : i fae

“§ 1332. Diversity of citizenship ; amount in controversy ~-

(a) Tite district cdurts shall have original jurisdiction of

all civil actions where the matter in ‘controversy exceeds the

sunt or value of $3, 000 exclusive of interest and costs, and 3 is

bet ween :

ai A Chitnehe of different States; - PO ae he :

(2) “Citizens of a State, and | foreign states or citizens ‘or.

sirbjects't teof; — :

.{3} Ciffzens of different States and in which Sots states

| or citizens: or’ subjects thereof are additional parties.

Cb) The word “States,” as used in this section, inchucee the

Territories and the District of Columbia.”

\ ‘The provisions of the replaced statute, nee, continue

' to govern the rights and liabilities of the parties te this suit

_ (id,, see.’ 39), and, in’any event, the new provisions pese the

same constitutional questitins 2 as were Zrised by the 1940 Act.

ee eS rch ar

eee < ee , = . ' - -

oe Sak, Ee ‘\

g- 7 ’

Ase.

‘STATUTE AN Q CONSTITUTIONAL PROVISIONS INVOLVED

(1) The: rasp of: ‘April 20}. 1940, ¢. “197 54 Stat. = |

143, Teads as token, here if ia

4 eB cy “That clause (b) of. paragraph:

ame ), section 24,.0f the Judicial. Code, as:

‘ amended - {U-8.C., "193 edition, title 28,

~*L > + lgee. -41;- Supp. Iv, title 28, -sec. . 41), be,

[ov ong Sine the same is hereby, amended to read

..' .-+ as follows: - ,

eee ».(b) Is. hetween citinenis: ‘of “different

eres Stites: or citizens of the District of Colum- ©

ee bia, the Territory of Hawaii, or Alaska,

VS eS gad any State or Territory...

(2) : Article £ § 8, of the onititution of. the

- United States reads, in pertinent part, as follows :.

: the CBirgress shall have Power 99 re

Et Ne 55 . ae

2 Section 24 (1) of the Judicial Code (28.8. C. 11940 ed. )

41 (1)), as amended by Fie 1940 statute, read, in pertinent

Poke

* _ part-as follows: 3

+ “The district ‘courts: shall have ‘original jurisdiction as :

_ follows: pipes .

ae ed - Of.all suits of a civil nature, at common law or

te equity, ~* ee * * where the matter in controyery exceeds, —

= of interast and costs, the sum or value of $3,000,

and * * * Is between. citizens of different States, or

? ‘ecitizens of the District of Cohunbia, the Territory of Hawaii, =

or Alaska, ‘ahd any State or Territory, or - *° *:? the” *

«tween citizens of a State and: foreign States, citizens or or sub- a

. jects. Pin Fit ao oe st ae

ae As noted, ‘supra, a, 4, the entire Section 24 (1) has been

nye and the pertinent provision of the, Code revised

ices bas Aeoaprsen ONE. 2d S@SS.. SECS. 3, i (1888 mn)?

“<0

802333-~-48-——-2

. @

GF.

other

4 ‘

C ' 9. To sitiafitiabe ‘Tribunals iniferior

’ to me supreme Court.

* be ae *.

. OL. ‘17. To exercise exlusive Lézislation

in all Cases whatsoever, gVer such District

e (not exceeJing .ten- Miles. square) as may,

by ‘Cession of particular Statés,. and the —

Acceptance: of Congréss, become the Seat. a

cof the Government of the United States,

to exercise. like Authority over all :

Pies purchased by the Consent. of the

Legislature of the State i in which the Same

‘shall be, for. ‘the, Krection of Forts, Maga-

. zines, Arsenals, dock-Yards, vand other |

needful Buildings ;—And

_ Cl. 18. To make all laws which shall’be —

necessary and proper for carrying into.

owers vested by this Constitution

e Government of the United States,

san the foregomg Powers, and all.

or iti any Department or Officer thereof.

of -@) Article III, §1 of the Constitution of fhe :

United States reads as ‘follows: |

is The judicial Power of the United States, °

: shall be vested ip one ‘supreme Gourt, and.

in such inferior .Courts as the CongPess

may from time to time ordain and estab-

lish. The Judges, both of the supreme and

inferior . Courts, shall hold their’. Offices .

during good Behaviour, and shall, at stated

Times, receive for their. Services, a Com- .

- pensation, which shall not be diminished ~

during their Continuance in Office.

es ae ees ae

(4) Article ILI, §2 of the Constitution of the eee

= ° “4 e J v4 ‘ o°. ‘ 4

United States reads, im pertinent, part, AS, follows:

Cl 1. The. Judie ‘ial Power. shall’ extend

to all is in- ‘Law and Equity; arising

sander this Constitution, the Laws of .the -

_ United States,.and Treaties made, or which.

shall be inade, under their. Authority ;—to

* all Cases affecting Ambassadors, other pub-

lic Ministers and Consuls ;—to all Cases of ©

admiralty and’ maritime - Jurisdiction ;—to ;

Controversies to which the, United States —

shall bea Party;+-to Controversies be--—

~ tween ‘two or more -States;-—between a

‘State and Citizens of another State;—be-

! tween ‘Citizens of different- States,—be-

_. tween Citizens of the same State claiming

_ Lands under Grants of different States, —

. and between-a State, or the Citizens there-'

of, dnd foreign States, Citizens cl Sub-

Jects. | oN. |

Ba ee * - ere

INTEREST OF ws Sa: STATES

“The | Government | ‘takes no position as to the

. merits -of the claims asserted by petitioner® and

_ respondent against: each other. Its sole interest

is to epee the \e. validity of the 1946 statute.

_. This action was commenced by petites ner in the

District Court of the United States for the Dis-

trict. of Maryland to recover $10,000, allegedly

owing by respondent under the terms of an insur-

-arice contract. The complaint CR. 1) alleges

Sa ee

a that petitioner is a corporation incorpor ated unde

’° the laws of the ‘District of Columbia, and AC

xe _ spondent a corporation of the State of Virginia,

duly authorized and licensed fo transact ee

in the State of Maryland (R. 1); that petitic

ae inSurer, executed and delivered the instffance.

> policy in question ind filed: a certificate thereof >

' with the Interstate Commercé Commission, in

conipliance with Section II ofthe Interstate Com-

merce Act, as amended (R. 1); that an endorse-

ment attached to the policy pr ovided that -re-

spondent, ‘the insured, reimburse petitioner -for

f any payment made ‘on account of any accident,

: -elaim, or suit involving a breach of the terms of

- the policy’’ (R. 12) ; that petitioner. was required .

‘to make certain payments because of such a breach |

by respondent (R. 2-4); and that respondent is.

liable for reimbursement. of those sums to peti-

| ~tioner (R. 4)..- The jurisdiction of the District

Court was invoked under 28 U. S. C. 4 (1) |

(R. 1). oe. oe

a sidisssaioaiih motion (R. 5), the District

Court entered_an_order dismissing the complaint .

for lack of jurisdiction, the Act of April.20, 1940,

being held “unconstitutional, to the extent that it

amends Section 41 (1) (b) of Title 28 U.S.C. A.

by, extending the jurisdiction ‘of the Federal“

& Courts beyond - controversies between citizens of

different States’? (R. 6). The Cireuit Court of

“Appeals affirmed, Judge Parker dissenting (R.

22; 165 65 F. 2d 531).

20, 1940, unconstitutional, was grounded on the ‘

aes : Me ‘ ao

. >

. The majority opinion, holding the Act of April

' following rationale (R, 10-18). -(1) Congress, in

enacting the 1940, statute, must be deemed to have -

acted exclusiv ely under Article ILI, .§ 2 of the Con-'

stitution. -(2) The District of € olumbia, however, _

is nota “State”, within the meaning of that term. 2

-as used in hetioks Ill. (3) Consequently, Con-

gress, acting under that article, had no power to

_ vest the district courts with jurisdic tion over civil .

actions based on the fact that: some of: the liti-

gants. are citizens of the Distr ict. (4) Moreover, -

even if Coiigress were presumed .to. have -acted

€ unidige Article I, § 8, cl. 17 of the Constitution, the

Act of April 20, 1940, is invalid. (5) This is so

because the . legislative .power of Congress over _

the Thstrict. of Columbia, though plenary and far-

reaching, i is to a very great extent ter ritorially }

. limited fo the District. (6) Moreover, Congress

yond the. limits of ‘judicial power: defined by

cannot, under the guisé of exercising that power, —.

extend ther jurisdiction of the, district courts be;

Article IE. !

- The dissent of Judge Paice on. tes contrar "'y,

alttioag: -acquies¢ ing in the majority holding that

the District of Columbia isnot a“ State’’, within the

meaning of Article ITI, urged. that the 1940 Act. -

was a Valid exercise ‘of the congressional power |

under. Article I, § 8, cls..17 and 18. Judge

_.Parker’s reasoning was as follows (R. 18-22):

(1) Article III does ‘not express tlie full authority ~

k Oo 2 Ms ay

‘Sm. ae Pies peed

of € ‘ongress to create courts, and Congress, acting .

under Asrticle I, § 8, el. 17, may establish courts to

hear any litigation to which a citizen of the”

District wot. Columbia ‘is a par ty. (2). Such courts

- may. be ihivested with the same ‘judicial power as .

is vested in the federal courts created under

Article ITZ. -(3) On like principie, Congress may

- vest, in Articlé III eourts, the judici al power

| ‘which it ig authorized to. eonfer on. courts estah-

| lished under Article I, § 8, cl. 17. (4) The eon--

\ gressional power ‘over the District: of Columbia i is

‘not limited to the confines of the District. (5)

-. Moreover, since Congress could authorize courts

which it might’ eate under that pow er er. to_sif

and their process to-run-anywhere in ‘the country,* |

_-there_is no reason why it. cannot combine the

jurisdiction of such courts with that of the dis-

trict edurts already’. created under Article TIT.

(6) _Such a holding is in harmony. with the

= primary duty. of the Government ‘to secure jus-

tice for its citizens by aaouring. them. access: to -

an impartial judiciary.

SUMMARY OF ARGUMENT .

So tat as it pertains to eontroversies inv shin

“$ ’ eidtizens of the District of Columbia, the Act of

- April 20, 1940, may be sustained either (1) under |

_the. authority of Article [If of the Constitution, |

or (2): as an appropr iate exercise of the plenary -

@power over the federal district | conferred by.

Article I, $8, els. 17 and 18.

) ; ‘: ae - Mon >

, ‘ T

_ Artiele: TI of the Constitution. provides that

the judicia’ power: of the United States shall be

_vested in the” Supreme Court and in ‘the lower

federal courts and shall ‘extend to contro¥ersies 2

“between Citizens of different: States aes +

and between a State, or the Citizens. thereof, and

foreign States, Citizens or Subjects. ** -There-is .

no proof that. the term “State, ’’ as there: used,

was intended to exclude the federal district. Nor

is there any. logte In reading the District of

Columbia out of Article IIL. The ‘liberality -of

- constiti itutional_ construction would support a Con-

~ struction’ of the . word. ‘‘State’’ to include the

District, and the tern! has been .so read in con-

nection with the ‘application of treaties, statutes,

and constitutional provisions other than that

here involved. |

There is ‘nothing in the diversity clause of the- .

judicial article which requires so strict a construc-

“tlon as to exclude the Distriet from thé category

‘of “State.’’ Nor does. the ruling of this: Court

in Hepbur nu & Dundas v. Elizey, 2 Cr. 445, ‘require

such an exclusion. Chief J ustic e Marshall made

_/ it clear that the Hepburn case involved merely the -

interpretation of the Judiciary: Act of 1789... To

be sure, “he indicated that the. word “State”? had

the: same meaning in that statute as in the Con-

-stittition; but, in recognizing the discriminatory :

result of the decision. with respect -to citizens of.

| 10 st .

- the District, he nevertheless suggested that ‘this

is a subject for legislative? not for-judicial con- .

sideratjon” (p. 453). The 1940 Act, now before

the Court, explicitly: included citizens of the Dis-

trict and was a belated response to Chief Justice

Marshall’s suggestion. The question of consti-_

tutionality.-is certainly. not foreclosed by. the —

Hepburn decision, and ever y consideration points ¢

to its validity. | wae ; alg eter eZ

There - is a further reason for sustaininig the.

Act of April 20, 1940. The congressional power

over the District. of. Colimbia and_ its: cifizens

which 1S derived from Article I,/§ 8, els. 17 and

18, of the. Constitution is sweeping and. inclusive — |

in character. In the exercise of that. power, Con- — |

gress has the -right to create. inferior federal

courts for the hearing and dete mination. of coni-

troversies affecting, citizens of the District: Since

the, power te legislate for the District clearly

_. includes the power to make available to its citizens:

national courts having the same general character:

and jurisdiction as the -‘ ‘constitutional’’* courts

open to citizens of the States proper, it must be

deemed to,inelude also ‘the power to enable the

. citizens of the District, in those. cases in which ~

the Constitution secures_a like. privilege for the.

citizens: at the States: proper,: to. resort to: the

Zz federal . courts already created in those States.

—The-plena ry powe wr of Congress over the District —

and: its citizerts is’ not confined | to the boundaries _

of the District but: inay be exercised throughout.

the territérial limits of the United States. This

- principle, established early in the nation’s history |

in ‘Cohens Ve Virgin nia, 6 Wheat. 264, has never

been ¢ red, and the extraterritorial exercise

ae f the indie power over the District has been

" approved wher ever. deemed necessary to its proper

execution. ;

The Act of April 20, 1940, eannot ‘be: con-

demned ° hecause it required a merger in the’

federal district courts ef-judicial functions inci-

., dental, to the Article I powers with other judicial

functions derived ftom Article III of ‘the Con-

7 > stitution. -O’ Donoghue ¥.-U nited States, 289 U. S.

1616, clearly. approves such a merger, at least. ip

the constitutional courts of . the District of Colum-

| | bia. There is ai reason why it should not alsé

7 .be appropriate in the federal courts in the States

proper. W hatever the merit of the ‘rule pro-

hibiting the. vesting of legislative or administra-

tive “functions, - as contrasted. with “judicial

funetions, in the constitutional’ , courts of the

nation, that rule plainly does ‘not proscribe the

merger of judicial functions in’ such courts” re- 3

gardless.of the constitutioriai ‘genesis of such’

functions. ‘Moreover, to hold such a merger of

* judicial functidis improper would - be . fo con-

demn the long exereised delegations of power to.“

802833488

: Waa : a,

ce :

. the federal ateiak courts to heat suits against ©

“the United States, a ¢lass of eases which, al-

though judicial in character, has been held out-

side the -pale of. mer power. as defined in

- Article IIT.. x Fe

‘e

- Considerations of policy also support the val:

lidity of the Act of April 20, 1940, since it effects —

salutary Yemoval of an unfair discrimination —

. against the citizens of the District of Columbia.

In Hepburn & Dundas v. Ellzey, 2 Cr. 445, Chief

Justice Marshall regretfully remarked the dis-.

crimination which the Court’ s construction of the | -

Judiciary Act of 1789 visited upon ettizens of the

District, and he invited legislative action to ted

move’ that discrimination. The Act of. April 20,

_- 1940, was Congress’ belated: response to that in-

vitation. It.is only fair that the citizens of the.

District of Columbia, ‘which has grown into an

urban metropolis of 861,000° people, should be

afforded the same access to the impartial federal

judiciary: as is afforded not only to citizens of —

_ the States proper but to all aliens, including even”

those resident in the District of Columbia...

When fhe Constitution was. drafted | and when ee

it was ratified, there was no. federal - distriet..

Those who became. citizens of the District there-

after created were at that time citizens of the _

States of Maryland and Virginia. As this: Court —

has said, ‘St is not reasonable to assume that the

cession stripped them’’ of rights previously theirs

under the new Constitution, “and that it was

: 13° |

| intended: ‘that’ at. the very seat of the national :

- government the people should be less fortified by —

, . the guaranty of an independent judiciary than in

other parts of the [fnion.”’ Resse: v. United i

; States, APO Ai S. 516, 40. -

ARGUMENT

| - Tlie sole issue on this review -is the, power: of

: Congress to extend the diversity jurisdiction of

the United States district courts to cases in which

‘citizens of the District of Columbia are parties. —

_, It is our position that Congress has that power ~

under the Constitution and that the Act of April. y

20, 1940, was a valid’ exercise of that power. In.

our view, therefore, the holding below i is erroneous |

and should be set aside. * ~~

' The Act of April 20, 1940, vested. pteSiabani

in the federal courts over suits “between citizens

of different States, or citizens of the Distriet of

3 Columbia, the ‘Territory: of _Hawaii, or Alaska, _

- and any State or Territory:’’* Suits instituted by

or against. citizens of the District had been held . -

- ‘outside the jurisdiction. of the federal courts

‘since the’ decision of this: Court, in "1804, ies

Hepburn @& Dundas v. Elleey, 2 Or. 445. ° The

1940 Act’ was designed to end. that discrimi-

nation. However, of the eleven district courts -

and two, cireuit courts of appeals we have

had occasion to pass on its constitutiona nality, o oly

hn nbinih eidivet. 1%; the 1006 Aut bad bow ines roe

by see. 1382 of the revised Judicial Code ie Ma. ie 80th. ;

oe 1, —. at? ; raat

-threeSall district courts, ‘have: saibela the Act; ‘the ;

remainder have rejected it. | i

We submit that, sé ‘far as it Gertains to con-

. a

= troversies inyolving citizens of t District of

Columbia, the Act of April 20, 1940, was valid -

on either of two grounds: First, as a proper exer-—

. cise of the judicial power within. Article IIT. of.

the Constitution ; and second, as an appropriate a

exercise of the plenary powers over the federal

. district delegated to’ Congress by Article I, .§ 8,

A els: 17 and 18. On either theory, the policy’ con-

‘siderations in support of constitutionality are pér-

suasive. For these reasons, we urge that the

Ant of April 20, 1940, should be sustained as a

_ Supp. 265 (E. D. Va.) ; Glaeser v. Ac

ciation, 55 F. Supp. 925 (N, D. Calif.

- 72-F. Supp. 422 (D. Fawaii).

*The Act has bees upheld in W inkler v. Danial, 43 F. ‘i

‘~" Mutual Life Asso-

4 nd Duze v. sit

It has been declared oe not only by. the dis- |

trict court and the circuit court of appeals in the instant case,

“but also in Central States Cooperatives ¥. Watson Bros.

* Transportation Co., 165-F, 2d 392 (C.C. A, 7), petition for :

writ of certiorari. filed April 17, 1948, No. 43, this Term;

McGarry v. City of BethTehem, 45 F. Supp. 385 (E. D. Pa.) ;

\ Behlert v. James Foundation, 60 F. Supp. 706 (S. D.N. Y.) ;.

Ostrow v, Samuel Brilliant Co., 66 ¥. Supp. 593: (D. Mass.) ;

Wilson v. Guggenheim, 70 F: Supp. 417 (E. D. S. C.) ; Feely

v. Sidney S. Schupper Interstate Hauling System, 72 F.

- Supp. 663 (D. Md.) ; Willis v. Dennis, 72 F. Supp. 853 (W. D.

Va.) ; see, also, Federal Deposit Fnsur. Corp. v. George-How-

ard, 55 F. Supp. 921 (W.D. Me.), reversed on other grounds, .

153 F. 2d 591 (C. C. A. 8), certiorari denied, 329 U. S. 719.

* The legislative histery of the 1940 statute is a meager

" one. ee he Committee on the Judiciary, of the :

“The act of e Apeil 20, 1940, was authorized by Article IT

el Ot the Constitution.

“Article I, § 8, cl. 9 of the Constitution empowers it

Congress “To constitute Tribunals inferior to the —

Supreme Court.”’ Article. ITI, § 1, provides that —

the judicial power of the United States shall be —

. vested ‘in the Supreme Court ‘and .in such in-

feriot Courts as the on may from time to

time ordain and establish.”’ Article ITI, § 2, |

enumerates the — classes of “Cases” and .‘*Con-_

troversies’’ to which that judicial power “shall ;

_ extend.”’ ~ Among: these are controversies ‘‘be-.

_ tween Citizens of different States * * * and

between a State, or. the Citizens thereof, and

foreign States, Citizens, | tr Subjects.””° The

House of Representatives, in recommending ‘its enactment,

fully.reported the constitutional questions whieh it raised

| (H. Rep. No. 1756, 76th Cong., 3d sess.) and concluded: that

it was “a reasonable exercise of the constitutional power of

Congress to legislate for thé District of Columbia and for the

’ Territories” (id., P- 3), the constitutional questions were not

considered at all in the report of the Senate committee (S.

Rept. No. 1399, 76th Cong., 3d sess.), and there was no diseus- ~

sion of the measure whatever on the floor of the Heuse or:

Senate. See 86 Cong. Reg. 2551, 2756, 3015, 3038/4168, 4286,

-4433, 4163, 4563, 4889.

, ‘This is not the place to review ihe ii of the judiciar Vv

clauses of the Constitution. For a recent summary account,.

see Frank, Historical Bases of the Federal Judic ial System,

_ (1948) 13 Law and Contemporary Problems 3. For partic-

ular references to the history of the diversity clause, see

Frank, op cit., 14-28; Friendly, The Historic Basis of Diver-

sity Jurisdiction, (1928) 41 Harv. L. Rev. 483; Frankfurter, | Z

\ . . i

\ ° ‘ 6 ¢

Po ae ee ae os

question here i is whether the term *State,”’ as easd _—*

in Article ITT, includes the District of Columbia.

’ We submit that it does, and that it has been: so

| treated in a variety of other situations. | | 7

Thus, when used in a treaty, the term ‘State’

has — been defined to include the District. In

Geofroy v. Riggs, 133 U. ‘8.3258, this Court held

ae that a: treaty which referred to “all the States :

of the Union’ .comprehended the. District of

Columbia, ‘and that, under €he treaty, French

* eitizens were therefore qualified to. inherit prop- :

erty from the. District’s citizens notwithstanding |

local laws ‘to the contrary. - Again, last Term, in

Hurd v. Hodge, 334 U. 8.24, 31, the Court; in .

- construing Section 1978 of the Revised Statutes,

: held ‘‘the District of Columbia is included within :

the phrase “ every State and Territory. 9 See,

also, Talbott.v. Silver: Bow County Commission-..

ers, "499 ) U.S. 438, 444-445 Downes -v. Bidwell, '

482. “8. 244, 258-263, 270; id. at 354-355

-, (Fuller, ©. J., dissenting) ; *Grether v.- Wright, q-

ae Fed. 742, 753 (C: C. As 6, ‘yer Taft, C.’J.); ; Wat-

- son v.. Brooks, 13 Fed. 540, 543-544 (C. C.. D..

Ore.) ; Metropolitan R. R. Co, v. District of

2 Columbia, 132) ,U.. S. 1, 9; Calon v. Wilson, 127

Distribution - J udietal Power Raia L tnited- States and

.. State Courts, (1928) 13 Corn L. Q; 499; Yntema and-Jaffin,;

Preliminary Analysis. of Coneurrent Jurisdiction, (1931) 79 oe

_ Ulof Pa. L. Rev. 869; Frankfurter and poe, The Business

ae “* the Supreme Court, 8-11 (1927). SS

—

: ee eS |

_ U.S. 540, 548-550; 6 Op. Atty. Gen. 302, 303-306 ;

ef. Andres v: United States, 333: U. S. 746.

' There is more reason for reading ile term as *

inelusive of the federal distriet when construe-_

tign of the Constitution is involved. For, consti-

tutional languag ‘e will ‘gerierally -be ‘inline a.

broader interpretation than that accorded ;‘‘legis-

- Aative . codes - which are | subject to continuous

+} / revision with the changing course of events.””

United States v. Classic, 313 U.'S.: 299, 316.

“Since the Constitution -has:a br oader purpose than ~

a Statute and is int@nded to last for a much longer

time, its wording: should possess a flexibility which

is not needed-in a statute.’ Chafee, Federal In-.

; terpleader Since the Act of 1936, (1940) 49 Yale

L, J. 377, 395. . See, also, Lamar. v. United States,

240 U.S. 60, 65;.Towne v. Eisner, 245 U.S. 418, 425;

Preinies, Sunshine. Mining Company, 308 U. S. 66,

* 71472; Holmes; J, dissenting in Eisner ¥. Mac-

olaber, 252 U. S. 189, ns Brandeis, J., dissenting, %:.

id. at 234. . ‘

» Buchan approach i in ‘eousstrustion | is copbeially ap-.

propriate here. The term “State;”’ as it is used in

’ the Constitution, isa particularly ambiguous term,

In Tezras. v. ‘White, 7 Wall. 700, Chief Justice —

Chase, referring to that term, said. a Wall. at

Gee 720): Ae ea ee ee

Phd pev rear ef tisieeaere often

compe ig the employment of terms-in-quite

- different -significations; and of this hardly:

any example 4nore—signal is to “be. found

18 is

leas ‘in the use of the word we are now

considering.- It would serve no useful pur-

pose to atfempt an enumeration of all the

various setises iii which it is used. * ~* *

The: word “State,” ” said: the Court, ‘‘most fre-.

. quentiy”’ denotes; “the combined idea _ * * * of.

‘ people; territor $,. and ebvernment’”’ (7 Wail. at

721); that is, ‘the. people, in whatever. territory —

dwelling, either temporarily or permanently, ard

whether organized under a regular government, or.

united by looser or less definite relations pot hen Brae:

. (id., at 720). | sage “:

Clearly, the District of Cohmbia is a “State”,

within that definition. And merely because it may

have heen. intended. that it*be: excluded from the

compzss. of the term within the ‘constitutional pro-

_ visions affecting national elections, there .is .no

* reason why the District: should not ‘be sein

a “State” for the. purposes of ‘other provis

- of the Constitution. It is not unusual fora al

~ tobe used with, | different. meanixigs in the same.

act, and, likewise, in the Constitution, the same.

term has: been accordéd different constructions

_ depending on- the connections in which it has been

employed. ‘Atlantic Cleaners & Dyers ¥. United .

States, 286 U. 8. 427; 433-434. ‘The use in

~ the Federal’ Constitution’of the same term in, differ-

ent relations does ‘not always imply the perform-

_ance of thé same fune ion”? Smiley y ae olm, 285

¢ U.S. 555, 365. 3

The fact is ‘that the ‘iedldoad: district has bien

. tr eated as a “State” in connection: with certain |

constitutional provisions,~ Thus, in Stoutenburgh.

V, Hennick; 129-U..S.. V41, when the Court struck

down. an. ‘net of the Legislative Assembly of the

District of Columbia requiring commercial agents:

soliciting the sale of ‘goods to-take out a license, ...

‘as an ‘unconstitutional regulation of commerce

in so far’ as it. applied. to “agents. for —

' doing business’ ‘outside the District, -it” held,

effect, that. commerce hetween the States proves:

and eee District of folumbia constituted . ¢om-

merece “among the several States,” within /the

meaning of- Article I, section. 8, ¢l. 3.0f the Consti-

tution. Miller, J.; —— 129 U.S. at 150-_

6451. Cf: Hanley. Kansas City ‘So. Ry. Co:, .

187 U.:S8.. 617; ‘Tinited States v. Whelpley,. 125

: eh 616 (W. D: Va.). ‘Again, ‘in- Loughborough

Blake, 5 Wheat. 317, and Embry v. Palmer,

191 U:.8. 3; constitutional provisions affecting

“*States’’ were, by extension, nade apphes ssh to

‘the District.. = +.

There is certainly nothing in the. diversity,

: clause of ‘Article Til which dictates so strict %

7 construc ‘tion as to require eX lusion of the Distri ict

“ef Columbia froin the category of “State: ” The

clause has not otherwise bec en so narrow ly applied.

2A éorporation, though net .a citizen under the

privileges and immunities clause “of the Constitu-

tion (Paul. v. Virginia, 8° gs 168, 177. 179;

— Con. Silver Mfg. Co. v. Pe nusyleania,

125 U, S.-181 187- saa has bees beta a citizen

302333—48-——4 hese re

aoe

“for purposes of diversity juriadietion. Louisville

oe Railroad: Co. Letsow, 2 How. 497; Me- .

- Govney, A Saprrme Court Fiction, (1943) 56

__Hiaey. L. Rev. 853, 1090, 1225; ef. Bank of the

United States v. goed caur, 5 Cr. 61, 91. And this,

despite a considerable oppesition - to such a con- |

~ struction - (see Warren, New Light on the H istory

_ Of -the Fe oderal Judiciary Act of 1789, (1923) od

. Harv. L. R. 49, 89-90 ;-McGovney, op. cit., passim).

~The revision off the daidicial Code, which oa

~ has only just completéd, views the term “State” iz

"that clause’ with equat latitude, expressly posing

it to inchide “the Territories and the Distr ict. of

— Columbia.”’- P. L. 773, 80th Cong., 2d sess., see. 1,

“§ 1332 (¢b).. This legisla ive construction, it is

- submitted, is entitled to respectful consideration.

Nor: ‘is the. ‘decision in Hepburn & Dundas v.

Elizey, 2 Or. 445, to- the contrary. That- case

involved x construction of the provisions, ‘not of

‘the € ‘onstitution, hut of the: Judiciary Act. of 1789,

1 Stat.’ 73. ARS 2K ° Yi

In ace or dance with the authority Welegated by —

- Article-III-ef the Constitution, the first Congress

had promptly proceeded to the: or ganization of a

federal judiciary, and, on September 24, 1789, the |

: . Judiciary Act of 1789 .was enacted. Among -

3 other things, Section 1 of the Act vested in the

- eircuit. courts, which it established, ‘‘cognizance,

concurrent with the courts of the several, States,

of all Suits of a- civil nature at ¢ommon law or in.

| for want of juris sdietion. Chief Justice Mars

equity, wheie the matter in dispute exceeds

to + 4 ae sum or value of five hundred dollars, |

ee -the suit is between a citizen of

the State wher e the suit is brought, and a.¢ ifizen

of another State.” 1 Stat. ai 78. Jn the Hepburn

“> CASe, plaintiffs Were citizens and residents of the

District of Columbia ; defendant was a citiz en and

inhabitant of Virginia; and the jurisdic tion of

the federal ci ircuit court Ww as invoked on thie basis

of a diversity of: citizenship of the parties, The. .

question certified | to. this Court was, whether the

circuit court. was required, to dismiss the- suit

fran

made’ it clear that the answer ‘depends on the

~ aet of congress describing the jurisdiction ofthat

. court,”’ which “gives jurisdiction .to. the cireuit. -

courts. in cases between a citizen of. the state in

which the suit is brought, and a citizen of another

_ state’? (2 Cr. at 452). . In holding that the eireuit

~ court was without jurisdiction, he reached the con-

clusion that the District’ of Columbia was not a

“State.” And although hé treated the ‘stitute as

‘employiig the term ‘‘State’’ in the same’ manner |

as.used in the Constitution, he. was: nevertheless

careful to point out (2 Cr, at 4! 53) :

It is trué, that as citizens of the United

‘States, and of that particular district which

is subjeet’to the jurisdiction of congress, -

it’ is extratdinary, that the courts of the

United Stakes, which are open -to aliens, .

and’ to the. citizens of: ‘every ‘state in the —

, eee

union, should be closed upon, them. But

this is a subject far legislative, not for

judicial consideration. [ Italics supplied. ]:

- Strictly confined: to its holdiig, the Hepburn

case constitutes no more than a spnetrnetion of

‘Section 11 of the Judiciary Act of. 1789.. The re-

marks quoted above support such a narrow read-

ing. -And, though. the decision has sometimes

heen taken, more broadly, as announcing a rule

of constitutional law (sée New Orleans’ v. Winter, |

1 Wheat. 91, 94; Hooe v. Jamieson, 166 U. S. 395,

396-397 ; Doeuas<. Bide ell, 182 U. S. 244; 259;

C’ Donoghue v. United States, 289:'U.'S. 516, 543),

such a reading would not only disregard Chief

Justice—Marshall’s plain invitation to legislative

iH ae eke also the well-accepted rule in favor of

a liberal construction of constitutional language. |

See supra, p. 17. i =

_ Though the legislative history of the 1789 Act ~

discloses no: consideration of the particular prob-

lem involved in the instant case, one thing i is clear:

there) was considerable opposition to the creation -

_ of inferior federal courts and, if they weré to be

éstabl shed,. to the grant of diversity jurisdiction

to such courts.” In corsequence, before the Act

Was passed, | the broad jurisdiction in diversity

cases whieh Article Ill contemplated and which

had been embodied in the daft bill introduced

into the Senate (S. 1, Ist Cong., Ist sess.) had

been substantially confined by amendment. * See

Warren, New, Lighteon the History of the Federal

eae

23,

| Sudiciary Act of 1789; (1923) 37 Harv. L.

49, 79. seer oa |

In stch— ‘eireumata inces, it is difficult. to. justify

the assumption which Chief Justice Marshall’ eh-

tertained without question. ‘in’ Hepburn & Dun-

das v. Ellzey, 2 Cr. 445, 452, that the term “<“State’’

was used in the Judiciary Act in,the same ‘sense .

as it had been employed in Article IT of the

Constitution. Irrespective of whether the Hep-

_ burn ease be regarded vas a correct deci ‘ision with

respect to the construction of, the 1789 Act, it

certainly should not be enlarged into a rule of

constitutional law. And whatever interpretation

"may. have been accorded the case by its contem- |

porartes © and by the courts which have since fol-

Mr. Warren's remark is pertinent in this conneetion:

“it: may well be contended that. had the’ Judges f-

the Supreme Court been’ familiar’ * * * with, the bis-

tory of the progress of the Bill'in,the Congress, several of the

leading cases before that Court might have been decided dif-..

ferently.” Warren, op. céit.. at 51. Cf. Erie R. Con. —

_kins, 304 U.S. 64, 72-73. *

® There is considerable doubt whether the ictovaeh of its

day understood the case to enuriciate constitutional doctrine,

for, if so, one finds it difficult to explain why it-elicited no

comment in the fervent debate aver the status of the District.

of Columbia which. was waging’ in the Congress of the time.

In, the second session of the KightheC ongress, resolutions

were introduced providing for the ret@pcession of all por-

tions of the District, ether than the City of Washington, to

the Stites. of Maryland and Virginia. . These: resolutions

were heatedly debated on January 7-10, 1805. Though there

was much comment about the dseriminatory ‘treatment

meted out to thé citizens of the District of Colum-

bia by the thea new Constitution, an’ examination of the

>»

lowed it,’ the decision has onjy r ‘ecently been cited:

by this Court not as. announcing constitutional!

doctrine, but,: rather, as. illustrative of a@ strict

statutory construction. Tndianapolis v. Chase:

Nat. Bk., 314 U. 8.63, 76-77 Likewise, in

| Treinies ’ v. Sunshine Mining Oo, 008, U-S8-665,-—

by, explicitly reserving the Auestion ‘whether’ the

words ‘‘Controversies "*: * *. between citizens

of different States’? in Article: LIL of the Con-

stitution have a different meaning from that given

by ‘judicial construction to similar words in the

‘reports on’ the debates discloses no mention of the Zepburn

*decision or its paneer «See 14 Ann. Cong. n74-981 *

"passim. 4

° The ruling in Hepburn ct Duniab v: Elleey has been: ex-

tended to proscribe suits in the federal courts by citizens of

the territories, and, as so enlarged, consistently followed by

this Court. and the inferior federal courts. New Orleane v.

W inter, 1 Wheat. 91; ip | v. Baltimore City, 6 Wall. 280;

Hove v. Jamieson, 166 U.S. 395; In re Massachusetts, 197.

U.'S. 482; Watson v. Pasion 13 Fed. 540 (C..C. D. Ore.)-;

Darst x. City of Peoria, 13 Fed. 561 (C. CN. D.. Ill.) ; Land

: Company Vv. Elkins, 20-Fed. 545 (C.C.S. DN.Y); Seddon

v.. Virginia, etc.. Co., 36 Fed, 6 (C.-C. W.D. Va. ) ; Maawell v:

Federal"Gold & Copper Co. 1 5d Fed. 110 (C. C. A. 8): Mu-

tual Life Ins. Co, v. Lott, 24 5 Fed. 365 (§. D. Calif.) 3 Ander- |

sot ¥.0.3. Fidelity & Guaranty € Od B, 1d 425 sa Dz Fia.) . a ae

' Cissel . MeDonald, Fed. Cas. No. 2,729 (C:C.§ NFY. ¥s

Vasse v.. Miffin, Fed. Cas. No. 16895 (C. C. E. D. pean ;

Westcott v. Fuirfield, Fed. Cas. No. V7A18 (C. C. DLN. IS

and see cases cited supra, p. 14, n, +; see, also, Dowies v. Bid-

well, 182 U.S. 244, 259, 270, and cases cited in Rathvon ale

Keeffe, W ashkingtonians and Houmanians, ( a) 27 N@®Braska

- L R. R75, 377 (n. b+). 308 (nm. ZO),

ete eS

Judiciary. Act of 1789, the Court again, in-effect,

‘indicated the narrow confines. of the Hepburn:

precedent. See Chafee, The Federal a nterpleader~~

Act . of 1936, (19367 45 Yale L. J: 963, 973;

Chafee, Federal Inter pleader Since: ‘the Aet of =

1936; (1940). 49 Yale L.. J. ‘3T7, 95-398.

When the Constitution was. written, ratified,

‘and put into operation, the federal distriet which °

Article I. § 8, cl. 17, contemplated had not yet

_ been established. It was not until 1790 that a

- “district of territory’? composed of. lands. ceded

- by the States of. Maryland. and Virginia was"

| accepted for the permanent seat. of the Govern:

ment ‘of the United States; it was: not until. 4800

that the District became the seat of the national

Government; and it was ‘not until 1801-and 1802. :

that governmental organization was provided for*

‘its. inhabitants. See Act. of- July 16, 1790, 1 Stat.

130; Act of February 27, 1801, 2 Stat? 103; Act -

of May 3, 1802, 2 Stat. 195. There is no proof

available that the founders ever’ considered the

question whether the federal courts should. or

should not’ be open to the citizens of the federat

district on the myping basis as to the citizens of the

States ‘proper. | There is, therefore, no™ reason’

why the District of Cohumbia, should be. read ~

out of Article III, but, to the contrary, as will he «-

shown below, there are sound reasons of —

| for not doing So. As has already been: noted,

iegas & Dundas ¥: Eley, 2 2 Cr. 445, dees not |

Oe he

tion te eliminate the dis serimination disclosed Th

that case. “See ‘First € ‘arolinas Joint Stock Land

Bank v. Page, 2 F. Supp. 5 29, 530. (M.D. NL C.).

The terms of Article ITT, like all words in the

: “Constitution, ‘should be spared ‘a re: dite. of

“stultifying- narrowness’ (United States v. .

‘Classic, 313 U. 8. 299, 320) and ‘should be. /con-

strued to embr ACE “within the judicial power over

diverse citizenship. cases those affecting citizens.

“of. the District of Columbia as well as of the .

States proper. The Act of April 20, 1940, was, -

+ therefore, an appropriate exercise of the judicial

power defined in Article III and, —ew:

a valid enactment of C ongress.”

“It is of iaiiamant that in the only other federated hation in

Ww hich a question analogous to that here in issue appears 'to *

have arisen, the courts. have Without difficulty accepted the

members. of the confederaéy. In the Argentine, the Consti-

tution provides for a dual system of courts similar to that in _

thé United States and for adiversity jurisdiction in the fed-

eral courts in vases between inhabitants of different provinces

and between Argentine citizens and. foreignérs; The inter-

pretation of this section and of other provisions of the Argen-

tine constitution has been cdcdeaie

inhabitants of the capital ter ritery to inhabitatits of a prov-

_ ince for purposes of. this diversity clause has not been ques-

tioned. Demarchi c. Olmos, 29 Fallos de la. S.C. 363; see

~Riesenfeld and Hazard: Federal Courts in Foreign Systems,

preclude, but. contrariwise, | invites legislative ace.

federal distriet as a “State” on a par with the constituent

enced by United. States: -

precedents. Nevertheless, the assimilation by statute of the -..

(1948) 13 Law and C cntempor ary y Problems 29; 44-45, n, 130.

ae The Act of April 20, 1940, was: a vdlid exercise of the .

plenary power of Congress 33 tO legislate for the District

There is-a furthér reason for sustaining: the

Act of April 20, 1940. As the Comniittee on the

Judiciary of the House of Re “presentatives ‘stated.

when it recommended enactment of the statute,

- the Act ‘“is a reasonable exercise of. the constitu-

tional power Of Congress to legislate for the Dis-

trict of Columbia and for the Territories.” (H.

Rep. No. 1756, .76th. Cong... od sess, p. 3).

Article I, § 8, eis. 17 and-18 afford sind au-

| thority’ for enaetnent of the Act: of April 20,

19465 so far as, the District of Columbia is con-

cerned,

exercise exchisive legislation in all Gases whatso-

ever * over. the. federal district. “Clause 18 au-—

thorizes Congress “To make all laws which shall

be necessary and proper for earry ing [that power]

into Exeeution.””. The sweeping and_ inclusive

character’ of this congressional power, over the

District of Columbia and its eitizens has often

‘been proclaimed. See, for example, Kendall vy. .

United States ex rel. Stokes, 12 Pet: 524, 619;

Allantic Cleaners ‘& Dyers vy. United States,

286 U.S. 427, 434-435; Shoemaker. v.-United

Stales, Bey U.S. 282, 300; O'Donoghue v. United

States, 289 U.S S. 516, 539; Capital Traction Co.

Artjele 1 , § & el. 17 empowers Ceriniens “To:

ee at

- v. Hof, 174 U. S. 1, 5; Stoutenburgh V: _Hennick;

129 U.S. 141, 147; Downes v. Bidwe ll; 182 U. 8,

244, 289-290 (White, J., conenrring ) : Neild = 7

District of Columbia, 110 F. 2d. 246, 249-25

(App. D. ©.). Equally well -established mgr

right of Congress,. in eXe reise of that power, to :

create inferior federal courts for the hearing and_

determination of controversies affecting the Dis-

trict’s citizens. O'Donoghue v. United States,

supra, at 545-548; se,. also, Keller v. Potomac

Electric Co., 261 U. 8. 498, 442-443; Postum

Cereal Co. Ved ators 7 seas Co. § senile S.

693. . a

‘For, Article. Ill “does bot express the: full

authority’ of Congress to create courts.’’ . Bx

- parte Bakelite Corp., 279 U. S. 488, 449. In

addition to the power deriyed from that article,”

from which stems the authority to establish the

so-called ‘‘constitutional’? ‘courts, Congress may

create so-called ’ “legislative” or “statutory” se

courts, ’ to aid. it in carrying. out the numerous

other functions entrusted ty it. American In-

surance Co. v. Canter, 1 Pet. 511. - Resort to such —

| “legislative” courts “has been frequent. - Thais,

the territ¢rial courts, are creatures noi Of Article -

ITI but rather of the power, that granted by Arti:

cle IV, § 3, el. 2, to make “all needful Rules and

Regulations ‘respecting -the ‘Territory’ ’ of the

.. United States.. American surance Co. v.

Carter, sopra; McAllister vw. United States, 141

UL 82974. : “Phe Court of Customs Appeals was

étsablished as. ani exercise of the powers to lay.

and ‘collect duties on iinports and toe adopt any

appropriate means of carrying that power into

execution, provided: by Article’ I, § 8, els.. “9

‘18. Ex parte Bakelite Corporation, 279

438.. The Court of Claims is a tribunal acer in.

“nid.of the congressional authority ” granted by

Article I, § 8, el. 1 to pay the debts of the United

States. WwW ‘illiams,v. United States, 289 U.S. 553. .

Similarly. the courts of the District of Columbia, |

‘though im part “‘constitutional’® ingharacter, are

also an expression of powers ‘vested in Congress

- by Article I of the Constitution. O ‘Donoghue V

United States 89 U. 8. 516. See, also, Katz,

_ Federal Legislative € ourts, (1930) | 43 Harv. Law

Rev. OOH a

he:

~ Tn light of this well-established ecnaiprenaliii authori ity

in addition to that derived from ‘Article III. Chief Justice.

Stone’s statement in Lockerty v. Phillips, 3¥9 U.S. 182,187.

that “All federal courts, other than the Supreme Court, derive

their jurisdiction. wholly from the exercise of, the authority

_ to ‘ordain and éstablish? inferior courts, conferred on Con-

gress by Article ILL. § 1, of the Constitution,” can be ¢xplained

only as intended to refer to the * “constitutional” courts, or, in

the alternative (and what seems less likely), to renew an,

earlier suggestion of the Court, that the enumeration of -

classes of litigation in Article IIT is by fo means exclusive

and that the judicial power of the United States is a

broader than that article of the Constitution suggests. See.

- oMansas v. ‘Colorado, 206 U.S. 46, 82-83; McGovney, A Su-

preme Court Fiction, (1943)" 56. Harv. L. ‘R. 853, 854-855;

Katz, Federal-Le aneees sanetne:\: 1930) -43 Harv. L. R. 894,

m8.

)

Thus, the power to legislate’ for’ the District

inelides the power to make available to-its eciti-

zeris national courts having the. same general

characte and jurisdiction as the ‘“consiitutional’”’ ‘

courts aes to citizens of the States proper.

O’Donoghue v. United: States, 289 U. S. 516, 540-

541.-. On like principle, it wu seem that the.

power to legisiate for the Distriet must be deemed.

\ to include the power to enable its citizens, in those

eases in which the Constitution secures’ a like

privilege to the-citizens of the States, to resort to

che federal courts already ereated in the States

| proper. The’ grant of diversity ‘jurisdiction to

: “foreign” States. Seré v. Pitot, 6 Cr. 332, 337-

the federal éourts. was designed to provide ‘a

forum free of the supposed , prejudices of the

local courts against aliens: and citizens of other,

338 ; Bank of the U Tnited States v. Deveaux, 5 Cr.

: 61; 87; Guaranty Trust Co. v. York, 326 U. S. 99,

‘weutaniba on’ the Constitution (Sth ed.,. 1891), .

111-112; The Federalist, No. 80; 2 Story, Com-

§§ 1690-1692; Friewlly, The Historie Basis of

Diversity Jurisdiction, (1928) 41. Harv. L. Rev. .

- 483." To the extent such Prejudices are still ex-

_ Clause was grounded on a real exper ‘ieee of prefudice. A.

» There is: considerable question ‘chether the diveseity’

recent study of the available historical Wnateriais suggests

that the diversity jurisdiction of the federal | dourts. may fairly

-be said to be the product of three factors, the kelative weight -

small part on experience and in large part on comihon sense —

of which cannot now. be assessed: (i) the deaire to avoid:

"regional prejudice against -conumercial litigants, based in

‘

tant and continue fo justWy the ‘ACCESS afforded

“foreign’’ citizens to the federal courts, they im-

| pair the interests of District of. Columbia litigants

as well as those domiciled in the States proper.

Phere was no more reason, in 1800, to have feared

prejudice against Mary! and citizens in ‘the Vir-

ginia courts than to liave: feared prejudice there

against residents of Geor getown and. Washington, .

who only the year ‘before had -been citizens of |

Maryland. There-is no. more’ reason now to ex-

pect prejudice against “Mat ‘yland | citizens than

gainst those of the District.’ 4 Car cae eras oad

2 a :

anticipation ; (2) the desire to permit. commercial, manu- .

facturing, and speculative interests to litigate their contro-

versies, and particularly their controversies with other classes,

‘before judges who would be firmly" tied to their own interests; °

and (3) the desire to achieve the more efficient administratipn

- of justice for the classes thus benefited. Frank, Historical

Bases of the Federal Judicial System, (1948) 8 Law and

Contemporary Problems 3, 28. .

8'The justification for and the wisdom of axtenditig the

_ federal judicial power to diversity cases are not in‘issue here,

and it would serve no useful purpose to reiterate the argu-

“ments for or against such extension.” All aspects of’ that

debate seem to have been covered in the struggle over the bills. ©

‘introduced by. Senator Nerris,’ Representative La¢tiuardia,

and others, in the. Seventy-Second Congress, to abolish or.

limit the federal diversity jurisdiction (S. 939, H. R. 11508, ~

Ss. 987, H. R. 10594, H. R. 4526, all 72d Cong., Ist sess.).

Pr g the argument for curtailment or abolition are: .

_Sen.’Rep. No. 530, 72d Cong., ist sess.; Sen. Rep. 701, 724°

" Cong., Ist sess.; Frankfurter, Distribution of Judicial Power

between U 7 nited States and. State Courts, (1928) 13 Corn.

L. Q. 499; Frankfurter, A Note on ‘Diversity. Jurisdiction— —

In Reply to Professor Yntema,:(1931) 79 U. Pa. L. R..1097: *

32" . a / .@ + a

The indents of the court below, however, re-

jects the rationale founded on the Article Tt fh

. powers. over: the District: for two reasons :

” First, it, says that although the congressional °

power over the District of Columbia is plenary,

it is limited territorially to the District and can-

~ not be exertised beyond its confines. Second, it”

— Says: that although. O’Donoghue v. Unitéed States, a

289 U.-S. 516, sanetions the merger of non-Atticle

III judicial fusictions- with Article III judicial

functions in .the ‘‘constitutional’”’ eourts of the.

District of Columbia, such a. merger is prohibited

in the “constitutional!” courts which Congress has.

created in the States: proper. We ‘submit that ~-

neither. of these reasons ‘is sound ‘or affords any -

| justification for ae down the Act. of April

20, 1940. .

and Clark, Diversity of Citizenship Jurisdiction in the Fed-

eral Courts, (1933) 19 A. B. A. J. 499. Presenting the argu-

ment. for retention of diversity jurisdiction are: Yntemaand .

. Jaffin, ‘Preliminary Analysis of Concurrent Jurisdiction,

_ (1931) 79 U. Pa. L. R. 869; Limiting Jurisdiction of Federal

. ~Courts—Comment. by Members of Chicago University Law .

_ School Faculty, (1932) 31 Mich. L. R59; Parker, The Fed-

eral Jurisdiction and Recent.Attacks Upon. /t, (4932) 18 A: B.

A. J. 433; Howland, Shall Federal Jurisdiction of Con-. +

_ tréversies between Citizens of Different States be Preserved’,

= 1932) 18 A. B. A. J. 499; Yntema, The Jurisdiction of Fed-

efal ‘Courts in Controversies between Citizens of Different —

Statex, (1933). 19 A. B. A. J. 71, 149, 265. R

Our point is that if diversity cca is to be niain-

~ tained at all, the logic for its application to the citizens of

‘the Distriét. of Columbia is as cogent as that for its retention

for the citizens of the States proper and for aliens. ;

peer ee |

A. The plenary power of Congress over the District of. Columbia pnd

its citizens may be exercised beyond the. confines ‘of the Dis ct

. The Court’s opinion in Cohens v. Virginia, 6

Wheat. 264, supplies a complete answer to the

- gsnggestion that the congressional power over the

- District must be restricted to its limited bound- -

‘aries. In that case, early in the nation’s history,

this Court. announced the broad -sweep of the

plenary power of Congress overt the federal dis-

trict. If it desired to do so, \said the Court,

Congress, pursuant to that power; might legislate

.to bind not only the citizens of the District but

the citizens of the States -proper as well, and to |

supersede state. laws, which, though contrary,

would have to bow to the superior acts of Con

gress. The plenary power over the federal dis- .

- trict, Chief Justice-Marshall declared, “like all |

others which are specified, is conferred on con-—

‘gress as’ the legislature. of the Union; for, strip

them of that. character, and they would not °

“possess it. In no other charaeter,-can it be exer-_

' cised. In legislating: for the district, they neces-

sarily preserve the character of the legislature

of ‘the Union; for, it is in that character alone, a

that the constitution confers on them. this power

of “exclusive . legislation” (6 ‘Wheat. at. 424). -

And, again, “The clause which gives exclusive’ ;

jurisdiction is, unquestionably, a part of ‘the con-.

stitution, and, as such, binds all the’ United States” 3

(ibid.). Pointing out the similarity between the

power to legislate within the District of Columbia.

‘Ge,

3 a4

and ‘that to legislate with respect to forts, “arse- ae

nals, dock-yards, ete., the Coutt noted the exten- ;

sive scope of: -such cuthority (6 Wheat., at

_— pit Bian Hh erate de eet

- c the power vested in congress,

as ‘the ‘giiaeens of the United Statés, to —

_ + legislate exclusively withi itace ceded 7

_ > by a state, carries withit, as an -ineident,

the right to make that power effectual. If

a félon escape out of the state in which

the act has been committed, the government .

“cannot pursue him into another state, and.

_ apprehend | him there, but must. demiand

him from the executive ‘power.of that other

state. If congress were to be considered ,

merely as the local legislature for the fort

or other place in which the offence might

‘be committed, then this principle ‘would —

_ apply. to them as to other local: Jegisla;

_ tures, and the: felon’ who should ‘escape

out of the fort, or other’ place, in’ which

- the felony may have heen committed, could.

not be appreherided by .the niatahial, but

- "must be demanded from the#executive of

‘the state.- But we know that the principle

does not apply; and the reason is, that °

congress is ‘not. a docal . legisiature, but

. exercises this particular power, like ajl its °

‘a _ other powers, in-its high character, as the .

“ Jegislature of the Union: ~The American ~

_ people ri it a nécessary ‘power, and -

‘they, conferr it for their own benefit.

A cs Being. 80 conferred, it ‘varries with: it all

Me’ q eo j .

4 oes i 4

35.

- those incidental powers which are. necessary:

‘to its complete and effectual execution. .

“Though the opinion in- the Cohens case was

hotly assailed for sanctioning an appeal to. this

“Court: from a state tribunal, it apparently’ bred.

ne hostility so far as it related to the ambit of

. “the plenary power.over the District. See Dodd,

ae Chief Justice Marshall and Virginia, 1813-1821,

that respect, it. has never seriously been ques- 3

tioned, and this Court® has had. no reluctance in

Approving. the “‘extr atertitorial”’ exercise of the

power wherever deemed necessary to ‘its proper

.. execution... Thus, in Embry v. Palmer, 107 US

~ oy an aets ‘of Congres ss construed te require : tate

; : courts: ‘to. give full faith and . eredit. to’ the judg-

menits of the courts of the District of Columbia

was approved. as, at least in part, a constitutional ‘

‘exercise of the plenary power vested in Congress

ever. the federal district. And this, although \

‘such judgments are not within the. reach of the

full faith and- credit: clause and, therefore, like.

those of foreign countries, would -have. been,

absent the act of: Congress, extraterritorially, en-

| _ foreeable “apart from that clause. only to the

a extent the law of the forum ‘might permit. . a

McEimoyle v. Cohen, 13 Pet. 312, 324-325; Atcsi-.

. son, T: & S. F Ry W Sowers, 213° U. S. 55, 69.

See, also, Prequet v. Swaii, Fed. Cas. No. 11,134,

‘ Mass., per Story; J.); @ rether

v. Wrighi, 75 Fed. 742,756, 757. (C. C. A. 6, per

7 bier ic J.), quoted with approval in O’ Donoghue

Vv. United States, 289 U.S. 316, 5 39-540...

” mere is, we subinit, no justification for more

narrowly eonfining Congres s s—geographically

speaking—w hen it exercise’ its plenary power over -

the District of Columbia and its citizens than

. when it performs any ‘of the other powers en-

trusted to it by Article I- of the Constitution.

As Judge Parker pointed out in his dissent be--

low Bc y+ Sy ea Cee

Set meee Certainly, if Congress ‘is’ not,

limited. by the ter ritorial boimdaries of the:

country in creating courts. ‘to provide’ a

preper. administration of justice for citi-

zens resident or doing business in for-

eign countries, such as éonsular courts (In.

re Ross, 140 U. S. 453) or the United

States Court for China (Ex parte Bakelite”

. Corp., 279 U. S. 488, 451), there is no

reason why it may not ‘provide judicial,

facilities for citizens of the District of

Columbia ‘beyond the limits of the District

ee Sc te: fi

. . 2

. is : . P oks e

a : ;

Similarly, there is no veason why. the broad

scope which the federal courts give to the terri--.

torial jurisdietiott whieh. they derive from the -

bank ruptey clause of the Constitution, when read

in conjunction with the judiciary article (Missis-

| Appt Pub. Corp. v. Murphooe, 326 if SS. 438, 4425

Toland ¥. Spraguc, 12 Pet. 300; Mussman and.

Riesenfeld, J urisdiction in Jankruptey, (1948) ..

“13 Law and Contemporary ‘Problems 88, 89),

ee should be narrowed ‘in. the case of jnhrisdiction

derived, from the other clause of Article I with

respect to governance ‘of the federal district.

As the United States Court ef Appeals for the

District aptly put it ‘in Neild vy. District. pf

- Columbia, 110 KF. 2d 246, 250-2512; 2° :

* *. * Subject only: és ‘thine. prohibi-

tions of the Constitution which act directly

“or by implication’ upon the federal gov-

ernment, Congress possesses full and un-

limited jurfediction to provide for the

general welfare of citizens within the Dis-.

trict of Columbia by any and every att of

. ‘legislation which it- may deem conducive — -

c« to that end. In fact, when’ it ——

.. for the District,'Congress acts as a4@gis-

lature of. national characte®, exercising

complete legislative “control: as contrasted —

with the limited power of .a state legis-

lature, on the one ‘hand, and as contrasted.

with the liniited sovereignty which Con-

gress exercises within the’ boundaries of

the states, on the other. * .* *

. B. Congress may invest the federal ‘district courts in tle States

- proper with judicial functiqns other than those enumerated in

Article ttt

T here is no greater force to the conterition that

the Act of April 20, 194€, was invalid because it

required & merger in the federal district courts

Be ; 38

of judicial funetions incidental to the exercise of

. Article I powers with judicial powers defined m

Article III of the Constitution. O’Donoghue Vv.

' United States, 289 U! S. 516, clearly approves

such a merger, ‘at least in the “constitutional”

courts of the District. of Coluntbia.. There is no

"reason why it should not also be appropr late in

. the federal courts in.the States proper. ,

True, there are expressions in certain’ opinions |

of this Court which, read out of-context, appear

to prohibit such a consolidation of functions.

Thus, in Ex parte Bakelite Corp., 279 i. S. 438,

_449,. the Court, parenthetically referring to the

constitutional’ courts, notes that ‘‘They share

in the exercise-of the judicial power defined in that

section, can be invested with no other jurisdiction,

and have judges who hold office during good be-

havior, with no,power in Congress to provide |

otherwise. ”’ Again, in O’Donoghue y. fT "hited eS

States, 289 U.S. 516,546, the Court says: ” ee

| * * * Does the -judicial - power con-

ferred extend, to the cases enumerated in

that article EArt. Ill]? If it does, the

judicial power thus, conferred is not and

cannot be—affected by the additional con-

gressional legislation, enacted under Article _

I, §.8, el. 17, imposing upen sueh courts —

other duties, which, because that special.

power is limited to the District.. Congress

cannot impose upon inferior federal courts, -

elsewhere a oe

See ei

We suggést, however, that such statements were

intended only to reiterate the familiar rule that.

legislative or administrative functions, norm ally - .

vested in the legislative or®executive branches of

the Gov ernment, AS contrasted with judicial fune-

tions, normally the business of the ¢ourts, can be

* vested in ‘‘legislative’* r “statutory”? courts but

.. never in “constitutional” > courts (other than those -

in the District .of Columbia). See Williams v.

United States, 289 U.S. 553, 565-567. Whatever

the merit of that rule, .it obviously does not .pro-—

born of sections of the ‘Constitiition other than

. Articly IIT, with other functions, Pre judicial

in character, born ‘of Article III. -

Nor is there any justification | for so extending

the rule, The bar against assignment of adynin-

istrative and other nonjudicial functions to the

federal judiciary had. its origin, in ‘the doctrine of

separation of powers; the vesting of administra-

tive functions in the judiciary, it was feared,

would endanger the independence of the ‘courts

and would threaten an. encroachment on their

prere ogatives by the ps boi and. the execiitive,

He: yburn’s Case, 2 Dall: 9: I’nited States y.

Ferreira, 13 How. 40, ia pics however, are.

nat presented hy a mer ger of judic ‘ial funetions, eS

Ww hatever their genesis.. The doctrine of separa-_

tion of powers, though it does find support in the

tripartite division of governmental functions into

e °%, . -

4 ts)

legislative, executive, and judicial, in the first”

three articles of- the Constitution, neither- stems |

~ from such a mechanical arrangement nor from

- Artigle TILT alone. The doctrine is founded on

the sound policy ,of separating three essentially

different powers of government-and making -each

independent of the others, But where judie ial

powers alone are. being exerciséd, there is no

policy which .requires that they be separated be-

eause of their varied origin. So long as ‘such

powers are judicial in character, even though some

may not be derived from Article III, their exercise

by the federal courts in no. wise impairs the |

iadebpaileter of the judiciary. — ;

_.° This is implicit. in decisions such as dai v.

Appel, 192 U. 8. 129, where the Court upheld a

territorial statute in face of an attack on it as. :

a an usurpation of. judicial power and assumed the | |

pertinence of the doctrine of separation of powers

even though a territorial court, which derived

“its judicial powers from Article IV, not Article

Ili (American Insurance Co. v. Canter, 1 Pet.

* §11),.was involved. . Again, the doctrine of sepa- -

ration of powers. has been ee onsidered relevant

to. naturalization proceedings, although these need -

not be submitted to the\ judiciary. for determina-

tion (Johannessen v. United States, 235 U. 8. 227;

Rutledge, J.,. oe ‘in Schneiderman y.

United States, « 320 .U. 118, 165) and are thus

? 4H

not ‘derived from the gr rant in —_ Lit (Wil:

hams. Vv. a nited States, 289 U.S. 553, 580). ugk

“However important if may me to asvertain the

souree of judicial power when the fe nue of the...

. judges: who exercise it is in ESSUe (ef. O Douoghug _e

v. United States, 289 US. 516; with Williams v-

_ United States, 289. US. pati sue h an inquiry is

irrelevant, .so long as judicial funetions are in-_

volved, when. the question“at i issue is. the power

of the federal courts to exercise such functions, :

See Comment (The Distinction Between Legisla-

Bg and. Constitutional Courts), (1933) 43 Yale

Led. 316, 323. The decision of. this Court in

Pope v. United States, 323 U. S: 1, makes this

/ quite clear. . There, a special act of Congress eon-

ferring jurisdiction on ‘the Court .of Claims to

hear, determine, and render judgment on certain

specific claims was held invocative of the ‘‘judi-

cial power”? of that court, notwithstanding the

fact that-the statute, as.construed by that tri-

bunal, directed it to enter judgment | for the

claimant i an amount | determinable by simple

computation on claims which had once been. passed |

ER te eee . £

* That the dinrtsinn of the separation of. powers does” fot

preclude the merger of non-A‘ticle III with Article TL judi--

cial funetions becomes clear too when one recalls that the

requirement that judicial acts remain free from legisiative

injerfes ‘ence 1S hut: peguliar to our Constitution, but rests on -

“traditions which Anglo- Ameri ican law. has, found to be inher-

- ent in our system of govertiment, See Mr. Chief Justice

Taney’s draft opinion ix Gordon v. United States, 117 VU. 8.

697, (05-106. wee ; . : .

P e

on pursuant to its “eneral jurisdiction and de-

termined for the Government: 100 C2 Cls. 375.

This C ourt said {323 U:8. 1 I):

a ¥

* * -*

— notwithstanding the. retention:

of *- * * administrative duties by the

‘Court of Claims, as ia the case of the

courts of the ‘Districtof Columbia, Con-

“gress has provided for appellate review of -

the judgments of both courts rendered in

their judicial capacity.” And -this Court

has; held, by an unbroken ijne of decisions,

that its appellate jurisdiction, conferred by |.

Art. TIT, § 2, el. 2 of the Constitution,

extends to the review of such judgments of

the Court of Claims. * .* * and of the

courts of the District of Coluinbia wm,

[citing eases]. | :

And, again (323 U.S. at 13-14) :

oem although the. Court of. Claims,

like the courts of. the District of Columbia,

exercises non-judicial duties, Congress has

also authorized it as an mferior court to

perform judicial functions whose exercise

is reviewable here. The problem presented

here is no different-than if-Congress had,

given a like direction to any ‘district court

‘to be followed 3 as in other Tucker Act cases.

ae i possession of jen- judicial functions by

direction of Congress presents no more

obstacle to appellate. review of its judicial -

- determinations by this Court, than does

- the performance of like’ functions by thé

‘eourts of the District of ‘Columbia or -by

‘ % .

ae 43

stute courts whose exercise. of - judicial

power, in the cascs specified in Article ITT,

~ § 2, Cho, of the Constitution, is reviewable

here bf virtue of CT. Pieem F

— tha ‘ready acceptance ro by this. Court of juris- .

diction in Cases involving the ‘exercise of Judie ‘al

power derived from -sourees other than Article

TLL of the Constitution deprives the non- -merge r

‘argument of any force wliatever. If this Court,

‘under the Constitution, has the authority to -

“determine such cases gon rev iew,_the federal dis-

trict courts have the capacity to hear and decide -

them in the first itistance. See Katz, Federal -

“Legislative Courts, (19380) 43 Harv. L2 R. 894,

918; § 919; McGovney, A Supreme Court Fiction,

(1943) 56 Harv. L. R. 853, 854-855 ; Bate, (1934) |

34 Col. L. R. 344, 353-354.

Finally, te, hold such & merger ‘of judicial

» functions. improper wotlld be to condemn | the

_long-existing grants of. jurisdiction to the federal |

district courts to hear suits against the United .

. States. See, e. gj Po L. 773, 80th Cong, 2d sess.,

sec, 1, 66. 1346, 2671-2680 (embodying, in. rev ised

~ form, the provisions of the Tucker Aet and the Fed-

erel Tort Claims Act). For, in W illgams v.U nited

S utes, 289 U. S. 553; this Court held. the .ad-

jadication of claims against the United States;

| zIthough a judicial function, ‘outside the pale of

‘judicial power”. as defined’ ‘in Article LIT; such

judicial functions, it was held, were derived

; rather. from ‘the. igo to pay the om of the.

—_—

i SP eke ees

oo 44 :

United States ‘granted to Sicaaiine by Article I

of the Constitution (289 .U. S. at 572 2-581). °

These non- Article Hi suits’ against the Govern-

ment have,. nevertheless, long been entertained: by

the federal district courts..of the States proper,

and that with the approval of this Court. ‘See,

_ for example, United States v. Sherwood, _ U. &.-..

584; United States v. Pfitsch, 256 U. 8.5 9: Pope

v. United States, 323 U. 8. 1, 14; see, ace Katz,

F deral Legislative Courts, (1930) 43 Harv. L.:

Rev. 894, 917-919; Note, (1934) 34 Col. L. R. 344,

355, n. 66, 67. Tn such circumstances, it is in-

conceivable that. the exercise: of jurisdiction over _-

other similarly non-Article ITI judicial functions,

the adjudication of controversies between District

of Columbia citizens and citizens ‘of the states;

" proper, should new be disapproved. Certainly,

the ‘decision of such cases—the present suit, for .

example—involves the exercise of judicial power

and is, therefore, “susceptible of judicial cogni-

a zance by “‘constitutional” courts. Gordon. v.

United.States, 2 Wall. 561; Williams v. United

States, 289 U. S-: 553, 563-564; 580-581; —

burn’ 8 Case, 2 Dall. 409." * = red

0 ee There | is one further sapiens which conceivably may

be advanced in support of the Act.of April 20; 1940. That

2 Statute was, of course, one of the Jaws of the United States.

” aad, consequently, it might be urged that a suit brought in

reliance on its provisiens is a case “arising under * * * |

_ the laws of the United States,” within the definition of judi-

‘~. cial power contained in Arte SITl. Such an argument would

“~

_ 45

“The Act of April. 20, 1940, then, as we have

demonstrated, is supportable as a legal enact-

ment.on either-of to alternative theories: first,

as an appropriate extension of the judicial power

of the United States defined ii Article III of the —

Yonstitution; second, as a valid exercise of the

plenary power. of Congress over the District of ,

Columbia and its citizens. The logie of either — si

_ of these lines of argument is real and irrefutable, |

and both are supported by weighty considerations ...

of poliey. ‘We refer not merely to the usual - -

- pres umption of constitutionality, but more par-

ticularly to the fact that the Act of April 20,

1940, was designed to-remove a discrimination

- to which the citizens of the District of Columbia. .

had been subjected, ‘without ‘any apparent reason

- find considerable support in La Abra Silver Mining Co. v.

U nited-States, 175 U.S. 423, where: the United States brought

suit in thé Court of Claims, pursuant to a special jurisdic.

tional act, to ascertain whether an award which had been pro-

cured by the mining company had been based on fraud. This

Court unanimously rejected an attack on the judgment of the.

Court of Claims grounded on the theory that there ‘was no-

“case or controversy’ * under Article IIL, § 2, on which juris-

diction could be based, ho'ding that a case did exist under’

“the j jur isdictional get. 175 U.S, at-455, But ef. Puerto Rico

_y, Russell & Co.:288 U.S. 476, 482-485. See, also, Southern

Kansas Ry. Ce. v. Briscoe, 144 U.S. 133; Osborn v. United

States, 9 Wheat. 738; Note, Section 301 (a) of the Faft- ~

Hartley Act: A Constitutional Problem of Federal Juris-

diction, (1948) 37 Yale L. J. 630, 632-637; Rathvon and |

~ Keeffe, W ashingtorians and Rumanians, (1948) 27 Nebraska

L. R. 375, 388, n. 69; ef. Katz, Federal Legislati ve Courts,

(1930) 48 Harv. L. Rev. 894, 902-903... /

’

a =

in national pohey, for one hundred and thirty-

five years. >

Chief Justice ‘Marshall, when announeing. ‘the

Court’s opinion in Hepburn & Dundas v. Ellzey,

2 Cr. 445, regretfully remarked the dis¢rimination

‘which the Court's s construction of the Judiciary |

Act of 1789 visited upon the citizens of the Dis-_

trict of Columbia, and ‘he invited legislative action

to remove that discrimination (2.Cr. at 453):

- Tt is true, that‘as citizens of the United =

States, and of that particular district which

_is subject to the ; jur isdiction of congress, it

is extraordinary that the courts of. the

i - United States, which: are open. to. aliens,

A and to the citizens of every state in the

union, should de closed upon them. , But

this is a subject for legislative, not for

judicial consideration.

si: The Aet of ‘April 20, 1940, was Congress’ belated

a “response to that iivitation to legislative action —

proffered by the Court’ See H. Rep. No. 1756,

‘16th Cong., 3d segs., p. 3: -

*.* *° Tt should be ia in am

that the eftizens of the District of Colum-

bia and of the Territories are citizens of

“the United States. They are subject/to the

- burdens and obligations of such citizenship ~

just as are the citizens of the 48 States.

“Simple justice ‘requires that the\ should

“share the rights and pr ivileges of such ¢iti-

‘genship insofar as Congress has author ity

to confer it: npeon them: This is the tow

- intent of the Constitution )

ng ¢

Bo" ug

| Spe Ma sates

Aswe have alre acy noted: supra, pp.2 25-26, 30-31 =

\ there’ is “no apparent. reason for discriminating |

‘ng ainst the District's citizens, and a study of the -

“aliz

tion for sach discrimination. If the federal |

courts\are to be epen on the: asis of diversity of

citizenship to ‘the citizens of the States. -proper

and to aliens, even: when resident in the District

of Columbia, it seems no more than fair that _

similar access: should be permitted the citizens of |

tially rural community of 14,093 persons. in 1800

to an exclusively urban, metropolis with a popula-

tion 6f 663,091 in 1940; and of these residents in

1940, 652,490 were citizens of the United States.

of Commerce, Sixteenth Census of U nited States, 1940, Popu- .

lation; vol. II (1), pp. 955, 960. It is estimated that the pop-

ulation had risen: to 861,000. by 1947 (TAS, Department of’

Commerce, Bureau of the Census, Cur rent, Population Re-

ports, 3 Series-P-25, No, 12, p. 7). Enofficial Sources indicate

i substantially smaller population in 1800 than that indicated

by the official census—somiewhere between 3 ,000-te.6,000—for

that -part of the then: District. which still remains under. fed-

eral sovereigyty. -See Letter of Thomas Jefferson to Joel

Barlow, May 3,:1802, X Wovtings of | Jeffe rson (Mem. ed.

1903), p. 321:3 Bev eridge, 7 wife of Mar shalt (1919), p- 8,

There are no reliable statistigs as to-the umber of perina-

nent dotmiciliaries in the District.. We are informed, however,

‘that The Washington Post, in connection with a recent sur-

vey of opinion in the District on local self-government, poll-

ing adulfs in 400 families selected as a “random. area sample

~ of households” on a basis similar to that used y the Census

Rurean and the Bureau of Labor* Statistics. j proliesylar the. -

torical materials discloses no possible ration-

“Its citizens trade and travel throughout the United

States and every day engage in nunierous transac-

; tions with citizens of the States “ome As Judge

Par ker noted below (R. 91-22): .* |

_ The’ right to invoke the jurisdiction of

the only sovereignty to which they owe” al-

| ~ legiance and to. which. they can‘ look for

protection has become an increasingly im-

- . : portant one and has at length been recog-

— mized by - Congress in the “passage of

legislation, which opens thefederal courts

te them on ‘the same condition that thiese

courts are open: ‘to prnee. A eveses of the

Republi. ie a $

fe It is only meet that. they too, as wan as the citi-

oe zens of the States proper, should be pe a

sue in the federal courts.: :

As already noted, when the ” Constitution was.

drafted and wher. it was ratified, there was no

federal district. The citizens who subsequently,

| following percentages of the caaiple had resided in the Dis-

trict of Columbia for. these } periods :

Percent of sample * : No of years in District A

Diane abi sepia amet sidhalgpinarhcasinie less than 1 year. —_

pe | MES oo oe ae a= 1 year but less than safe

_ Wo... ,-2--------- 5 years but iess than 46 years.

go Pe te ce ‘_/_:. more than 10 years“ po

, Merete ee satin: uadibelincssen _ native bern.

— (See The. Washington Post, Sunday, February 1, 194%, sec

dI,p.1. The Office of the Collector of Taxes for the District

_ of Columbia advises us that approximately 99,100 taxable in-

come tax returns were filed by individual taxpayers for the

year 1947, of which approximately half were joint returns;

and that about 3,550 returns were filed by corporations, for

mitwmn

~pakfun

in 1801, became ‘citizens of the. newly created -—

District of Columbia" were at. that time citizens |

of the States of Maryland and Vi irginia. “Only

later were the lands upon which these citizens

resided ceded to the National Government. As

this Court has said in another but closely related |

connection, “it is not reasonable to assume that.

the cession stripped them” of rights previously |

theirs under the new. Constitution, “‘and that it

was intended that at the very seat of the national

government the people should be less fortified’ by

the guaranty of an independent judiciary than.

_in other*-parts of the Union.” O’Donoghue vy.

United States, 289 U. S. 516, 540; see, aise,

Downes v. Bidwell, 182 U. S. 244, 260-261; ef.

‘Callan v. Wilson, 127 U.S. 540, 550.

The holding, in 1805, that the District’ S citizens nee

‘were barred from federal courts - open ‘not only

to their Maryland and Virginia neighbors, but to -

all aliens, even those —— in the District of

/Columbia, was an “extraordinary” decision. an

Hepburn & Dundas: v. Elizes y, 2 Cr. 445, 453. To”

hold,-as the court below doés, that the legislative z

‘ action invited by this: Court in the. Hepburn case .

For a nagrative account of the orsanization of the Dis-

trict, see Morris v. United States, 174 U. S. 196. See, also -

Naylor, The District of Uolumbia, Its Legal Status, (1932)

21 Geo. L. J. 21; Caemmerer, A Manual on the Origin and:

Development of Washington: (1939), Sen. Doe. No. 178, _

a is” amine pp. 1-83. passign.

‘

sd . § : -

El af

”

. 08

aut uble.” ee

: ca CONCLUSION Seater ore |

~ For the foregoing ret easons, it is yespectiully

submitted that the Act of April 20, 1940, should

De held colistitutional and that the. judgment be-

. los! should accordingly be rev erse(l.

Pur. B. Pervaran, ’

Sa _Soligitor General.

AL a. _Morisox,-

hesidbant Attorney General.

ARNOLD Raum, ral

_ Special Assistant to the Attorney General.

: :

\ ‘Wg ae :

i. @ ° :

ry . : wu

‘ e .

gis T ha guiniaeiations of f patiey in, ‘sup ort of the: lice: of), :

.- April 20,1940, are‘amply developed in thé-dissenting opinion

__ of Cireyit: Soden Parker in the court below and that.of Cir-

’ ~ .

“fuitite to eliminate the discrimifiation ‘seems —

Ges

"cuit Judge Ev ang in Central States Cooperatives v. Watson.

Bros. T ransportation, Co. 165 F, 2d 392 (C..C. A. 7), petition

for certiorari pending, No: 43, ‘this Term. Sée, also, Mc-

“Kenna, Diversity of Citizenship Clause Extended, (1940) 29

reds... F193; Dykes ahd Keeffe, The 1940 Antendment to the

e—~ Y of Citizenship Clauses (1946) 21 "Pulane BR. 171;

” Rathvon end ‘Keeffe, Washingtonians and Rosemanianss Ss

Be cca 27 Nebraska L: R. 375; '€1943) 5 Louisiana L. R..478;

See ae ee = Peer Ay ‘SWEENEY, ices fy

f ; a : . . j ? | ral ABRY L ‘Ranp, ly ee

Seah eee Poca Gh ite ae “Attorneys.

SeofeMber, ‘1948, cae oN is eee ; 7

(943), 44 ‘George’ "Washington L. -R. 258; (1942) 21 Texas .!

L R83: (1946): 46.Col. -L. RoTE57 Note (1947), 60 Harv..L. R,

424; 4955498: 11948): 64 “Harv. L,-R. 885; (1948) 46 Mich.

Lb R. 55%. Butsee, Walker, Citizens of the i istrict of Colum-— |

bia aid the Federal Diversity Juristliction, (1948) 15, D.C.

Bar Assn, Je bar Note, (1946)5°5 i Yale L. J. 600. -

vss,

y $s. cOFeRnMENT ‘vmins ine orhice tines a

iv a y ie > eos a ‘ 7 ea ss

Ge , Ee ss ma oe

baer Bs, . : :

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