# Brief for the United States as Amicus Curiae — National Mutual Insurance v. Tidewater Transfer Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386406_0169%3A6 ## Record - **Collection:** Supreme Court brief - **Document type:** Brief for the United States as Amicus Curiae - **Published:** January 1, 1949 - **Citation:** 337 U.S. 582 ## 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. 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 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: . 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 : + 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 6 x 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)? “ > _. 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 © e 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 ee \ - 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 x" i4 -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 ¢ é 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 | 1G » 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 / / en 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. e | for want of juris sdietion. Chief Justice Mars ee 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 — 22 , 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» 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), a 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, o | 26 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.” a “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. 4 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. ° wy ae 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 29 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. 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, a (1907). 12 Amer. Hist. Rev, ‘776, -781-786. © In 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 36 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 x 37 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-— seribe the merger of. certain judicial functions © 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) ms 40 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 Yd PP - 42 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 ee 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 - hi “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 | the District.; \ ©. ee zs The Distr ict of © ‘columbia has gr own from a par 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. © These are the official census ane U.S. ise tdsant 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- 4s “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 ae 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 eS 50 v 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 e 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; ae 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, . : : --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386406_0169%3A6. Public record. Not legal advice.