U.S. v. Wong Kim Ark, 169 U.S. 649 (1898)
"This court [the U.S. Supreme Court] has no authority to interpolate
a limitation that is neither expressed nor implied. Our duty is
the law, not to make
v. Wong Kim Ark, 169 U.S. 649 (1898)]
U.S. v. Bink, 74 F.Supp.
603, D.C.Or. (1947)
"It is contended that Congress has
reversed this current by permitting the Supreme Court to legislate
upon it. Congress could
not confer, nor could the Supreme Court exercise the authority to
ordain and establish ‘inferior federal courts‘ and fix the jurisdiction
thereof which power
*615 was given
to Congress alone by the Constitution. Suffice it to
say Congress gave the Supreme Court ‘power to prescribe * * * rules
of pleading, practice, and procedure * * * in criminal cases in
district courts of the United States. ‘ 18 U.S.C.A. § 687. Unless
the transfer of jurisdiction from one court to another is governed
by rules of pleading, practice and procedure, the statute was of
[U.S. v. Bink, 74 F.Supp. 603,
Vieth v. Jubelirer 541 U.S.
267, 277-278, 124 S.Ct. 1769, 1776 - 1777 (U.S.Pa.,2004)
"The judicial Power" created by Article
III, § 1, of the Constitution is not whatever judges choose to do,
see Valley Forge Christian College v. Americans United for Separation
of Church and State, Inc., 454 U.S. 464, 487, 102 S.Ct. 752, 70
L.Ed.2d 700 (1982); cf. Grupo Mexicano de Desarrollo, S.A. v. Alliance
Bond Fund, Inc., 527 U.S. 308, 332-333, 119 S.Ct. 1961, 144 L.Ed.2d
319 (1999), or even whatever Congress chooses to assign them, see
Lujan v. Defenders of Wildlife, 504 U.S. 555, 576-577, 112 S.Ct.
2130, 119 L.Ed.2d 351 (1992); Chicago & Southern Air Lines, Inc.
v. Waterman S.S. Corp., 333 U.S. 103, 110-114, 68 S.Ct. 431, 92
L.Ed. 568 (1948). It is the power to act in the manner traditional
for English and American courts. One of the most obvious limitations
imposed by that requirement is that judicial action must be governed
by standard, by rule. Laws promulgated by the Legislative Branch
can be inconsistent, illogical, and ad hoc; law pronounced by the
courts must be principled, rational, and based upon reasoned distinctions."
[Vieth v. Jubelirer, 541 U.S. 267, 277-278, 124 S.Ct. 1769, 1776
- 1777 (U.S.Pa.,2004)]
Referring to the provisions for patent
appeals this court said in
Butterworth v. U. S., 112 U. S. 50, 60, 5 S. Ct. 25, 28 L. Ed. 656,
that the function of the court thereunder was not that of exercising
ordinary jurisdiction at law or in equity, but of taking a step
in the statutory proceeding under the patent laws in aid of the
Patent Office. And in
Postum Cereal Company v. California Fig Nut Company, 272 U. S. 693,
698, 47 S. Ct. 284, 285, 71 L. Ed. 478, which related to a provision
for a like appeal in a trade-mark proceeding, this court held: ‘The
decision of the Court of Appeals under section 9 of the act of 1905
is not a judicial judgment.
It is a mere administrative
decision. It is merely an instruction to the Commissioner
of Patents by a court which is made part of the machinery of the
Patent Office for administrative purposes.’ Another case in point
Keller v. Potomac Electric Power Co., 261 U. S. 428, 442-444, 43
S. Ct. 445, 67 L. Ed. 731, which involved a statutory proceeding
in the courts of the District of Columbia to revise an order of
a commission fixing the valuation of the property of a public utility
for future rate-making purposes.
There this court held
that the function assigned to the courts of the District in the
statutory proceeding was not judicial in the sense of the Constitution,
but was legislative and advisory, because it was that of instructing
and aiding the commission in the exertion of power which was essentially
Now section 89, title 15, U. S. Code (15 USCA s 89). This jurisdiction
also was transferred to the Court of Customs and Patent Appeals
by the act cited in note 1.
In the cases just cited,
as also in others, it is recognized that the courts of the District
of Columbia are not created under the judiciary article of the Constitution
but are legislative courts, and therefore that Congress may invest
them with jurisdiction of appeals and proceedings such as have been
But this court cannot be
invested with jurisdiction of that character, whether for purposes
of review or otherwise. It was brought into being by the judiciary
article of the Constitution, is invested with judicial power only,
and can have no jurisdiction other than of cases and controversies
falling within the classes enumerated in that article. It cannot
give decisions which are merely advisory; nor can it exercise or
participate in the exercise of functions which are essentially legislative
Keller v. Potomac Electric Power Co., supra, page 444,
of 261 U. S.,
43 S. Ct. 445, 67 L. Ed. 731,
and cases cited;
Postum Cereal Co. v. California Fig Nut Company, supra, pages 700-701
272 U. S. 47 S. Ct. 284,
71 L. Ed. 478;
Liberty Warehouse Co. v. Grannis, 273 U. S. 70, 74,
47 S. 282,
71 L. Ed. 541;
Willing v. Chicago Auditorium Association, 277 U. S. 274, 289, 48
S. Ct. 507, 72 L. Ed. 880;
Bakelite Corporation, 279 U. S. 438, 449, 49 S. Ct. 411, 73 L. Ed.
The proceeding on the appeal from
the commission's action is quite unlike the proceeding, under sections
1001(a) to 1004(b) of the Revenue Act of 1926, c. 27, 44 Stat.,
pt. 2, p. 109 (26 USCA ss 1224-1227), on a petition for the review
of a decision of the Board of Tax Appeals; for, as this court heretofore
has pointed out, such a petition
(a) brings before the reviewing court the United States or
its representative on the one hand and the interested taxpayer on
(b) presents for consideration either the right of the United States
to the payment of a tax claimed to be due from the taxpayer or his
right to have refunded to him money which he has paid to satisfy
a tax claimed to have been erroneously charged against him, and
(c) calls for a judicial and binding determination of the matter
so presented-all of which makes the proceeding a case or controversy
within the scope of the judicial power as defined in the judiciary
Old Colony Trust Co. v. Commissioner of Internal Revenue, 279 U.
S. 716, 724-727, 49 S. Ct. 499, 73 L. Ed. 918.
[281 U.S. 464, 50 S.Ct. 389 (U.S.,1930
Glidden Co. v. Zdanok,
370 U.S. 530, 82 S.Ct. 1459 (
The Constitution nowhere makes reference
to ‘legislative courts.’ The power given Congress in
Art. I, s 8, cl. 9, ‘To constitute Tribunals inferior to the
Supreme Court,’ plainly relates to the ‘inferior Courts' provided
Art. III, s 1; it has never been relied on for establishment
of any other tribunals.
The concept of a legislative court derives from the opinion of Chief
Justice Marshall in
American Insurance Co. v. Canter, 1 Pet. 511, 7 L.Ed. 242, dealing
with courts established in a territory. A cargo of cotton salvaged
from a wreck off the coast of Florida had been purchased by Canter
at a judicial sale ordered by a court at Key West invested by the
territorial legislature with jurisdiction over cases of salvage.
The insurers, to whom the property in the cargo had been abandoned
by the owners, brought a libel for restitution, claiming in part
that the prior decree was void because not rendered in a court created
by Congress, as required for the exercise of admiralty jurisdiction
Article III. Chief Justice Marshall for the Court swept this
objection aside by noting that the Superior Courts of Florida, which
had been created by Congress, were staffed with judges appointed
for only four years, and concluded that
Article III did not apply in the territories:
‘These Courts, then, are not constitutional
Courts, in which the judicial power conferred by the Constitution
on the general government, can be deposited. They are incapable
of receiving it. They are legislative Courts, created in virtue
of the general right of sovereignty which exists in the government,
or in virtue of that clause which enables Congress to make all needful
rules and regulations, respecting the territory belonging to the
1 Pet., at 546.
By these arresting observations the
Chief Justice certainly did not
mean to imply that the case heard by the Key West court was not
one of admiralty jurisdiction otherwise properly justiciable in
a Federal District Court sitting in one of the States. Elsewhere
in the opinion he distinctly referred to the provisions of
Article III to show that it was such a case.
1 Pet., at 545. All the Chief Justice meant, and what the case
has ever after been
taken to establish, is that in the territories cases and controversies
falling within the enumeration of
Article III may be heard and decided in courts constituted without
regard to the limitations of that article;FN13
courts, that is, having judges of limited tenure and entertaining
business beyond the range of conventional cases and controversies.
Far from being ‘incapable of receiving’ federal-question jurisdiction,
the territorial courts have long exercised a jurisdiction commensurate
in this regard with that of the regular federal courts and have
been subjected to the appellate jurisdiction of this Court precisely
because they do so.
Benner v. Porter, 9 How. 235, 243, 13 L.Ed. 119;
Clinton v. Englebrecht, 13 Wall. 434, 447, 20 L.Ed. 659;
Reynolds v. United States, 98 U.S. 145, 154, 25 L.Ed. 244;
United States v. Coe, 155 U.S. 76, 86, 15 S.Ct. 16, 19, 39 L.Ed.
Balzac v. Porto Rico, 258 U.S. 298, 312-312, 42 S.Ct. 343, 348,
66 L.Ed. 627;
International Longshoremen's & etc., Union v. Juneau Spruce Corp.,
342 U.S. 237, 240-241, 72 S.Ct. 235, 237, 238, 96 L.Ed. 275;
Martin v. Hunter's Lessee, 1 Wheat. 304, 338, 4 L.Ed. 97; see
Pope v. United States, 323 U.S. 1, 13-14, 65 S.Ct. 16, 23, 89 L.Ed.
The reasons for this are not difficult
to appreciate so long as the character of the early territories
and some of the practical problems arising from their administration
are kept in mind. The entire governmental responsibility in a territory
where there was no state government to assume the burden of local
regulation devolved upon the National Government. This meant that
courts had to be established and staffed with sufficient judges
to handle the general jurisdiction that elsewhere would have been
exercised in large part by the courts of a State.FN14
But when the territories began entering into statehood, as they
soon did, the authority of the territorial courts over matters of
state concern ceased; and in a time when the size of the federal
judiciary was still relatively small, that left the National Government
with a significant
number of territorial judges on its hands and no place to put them.
When Florida was admitted as a State, for example, Congress replaced
three territorial courts of general jurisdiction comprising five
judges with one Federal District Court and one judge.FN15
Barber v. Barber, 21 How. 582, 584, 16 L.Ed. 226, for example,
the federal courts in the States were incompetent to render
divorces; but in the territories, where the legislative power
of the United States of necessity extended to all such local
matters, the territorial courts took cognizance of them.
Simms v. Simms, 175 U.S. 162, 167-168, 20 S.Ct. 58, 60, 44 L.Ed.
De la Rama v. De la Rama, 201 U.S. 303, 26 S.Ct. 485, 50 L.Ed.
Benner v. Porter, 9 How. 235, 240, 244, 13 L.Ed. 119. For
statutory techniques since developed to avoid the interregnal
problems involved in that case, see
Metlakatla Indian Community etc., v. Egan, 363 U.S. 555, 557-559,
80 S.Ct. 1321, 1322, 1323, 4 L.Ed.2d 1397; 1 Moore, Federal
Practice (2d ed. 1961), 32-34.
At the same time as
the absence of a federal structure in the territories produced problems
not foreseen by the Framers of
Article III, the realities of territorial government typically
made it less urgent that judges there enjoy the independence from
Congress and the President envisioned by that article. For the territories
were not ruled immediately from Washington; in a day of poor roads
and slow mails, it was unthinkable that they should be. Rather,
Congress left municipal law to be developed largely by the territorial
legislatures, within the framework of organic acts and subject to
a retained power of
veto.FN16 The scope of
self-government exercised under these delegations was nearly as
broad as that enjoyed by the States, and the freedom of the territories
to dispense with protections deemed inherent in a separation of
governmental powers was as fully recognized.FN17
Clinton v. Englebrecht, 13 Wall. 434, 441-445, 20 L.Ed. 659;
Hornbuckle v. Toombs, 18 Wall. 648, 655-656, 21 L.Ed. 966.
Clinton v. Englebrecht, supra, 13 Wall., at 446, 447, with
Dreyer v. Illinois, 187 U.S. 71, 83-84, 23 S.Ct. 28, 32, 47
Against this historical background,
it is hardly surprising that Chief Justice Marshall decided as he
did. It would have been doctrinaire in the extreme to deny the right
of Congress to invest judges of its creation with authority to dispose
of the judicial business of the territories. It would have been
at least as dogmatic, having recognized the right, to fasten on
those judges a guarantee
of tenure that Congress could not put to use and that the exigencies
of the territories did not require. Marshall chose neither course;
conscious as ever of his responsibility to see the Constitution
work, he recognized a greater flexibility in Congress to deal with
problems arising outside the normal context of a federal system.
The same confluence of practical
considerations that dictated the result in Canter has governed the
decision in later cases sanctioning the creation of other courts
with judges of limited tenure. In
United States v. Coe, 155 U.S. 76, 85-86, 15 S.Ct. 16, 19, 39 L.Ed.
76, for example, the Court sustained the authority of the Court
of Private Land Claims to adjudicate claims under treaties to land
in the territories, but left it expressly open whether such a course
might be followed within the States. The Choctaw and Chickasaw Citizenship
Court was similarly created to determine questions of tribal membership
relevant to property claims within Indian territory under
the exclusive control of the National Government. See
Stephens v. Cherokee Nation, 174 U.S. 445, 19 S.Ct. 722, 43 L.Ed.
1041; Ex parte
Joins, 191 U.S. 93, 24 S.Ct. 27, 48 L.Ed. 110;
Wallace v. Adams, 204 U.S. 415, 27 S.Ct. 363, 51 L.Ed. 547.
Upon like considerations,
Article III has been viewed as inapplicable to courts created
in unincorporated territories outside the mainland,
Downes v. Bidwell, 182 U.S. 244, 266-267, 21 S.Ct. 770, 778, 779,
45 L.Ed. 1088;
Balzac v. Porto Rico, 258 U.S. 298, 312-313, 42 S.Ct. 343, 348,
66 L.Ed. 627; cf.
Dorr v. United States, 195 U.S. 138, 145, 149, 24 S.Ct. 808, 811,
813, 49 L.Ed. 128, and to the consular courts established by
concessions from foreign countries,
In re Ross, 140 U.S. 453, 464-465, 480, 11 S.Ct. 897, 900, 905,
35 L.Ed. 581.FN18
See generally, as to each of these courts, 1 Moore, Federal Practice
(2d ed. 1961), 40-44, 47-50.
The touchstone of decision in all
these cases has been the need to exercise the jurisdiction then
and there and for a transitory period. Whether constitutional limitations
on the exercise of judicial power have been held inapplicable has
depended on the particular local setting,
the practical necessities, and the possible alternatives. When the
peculiar reasons justifying investiture of judges with limited tenure
have not been present, the Canter holding has not been deemed controlling.
O'Donoghue v. United States, 289 U.S. 516, 536-539, 53 S.Ct. 740,
Since the conditions obtaining in
one territory have been assumed to exist in each, this Court has
in the past entertained a presumption that even those territorial
judges who have been extended statutory assurances of life tenure
and undiminished compensation have been so favored as a matter of
legislative grace and not of constitutional compulsion.
McAllister v. United States, 141 U.S. 174, 186, 11 S.Ct. 949, 953,
35 L.Ed. 693.FN19
By a parity of reasoning, however, the presumption should be reversed
when Congress creates courts the continuing exercise of whose jurisdiction
is unembarrassed by such practical difficulties. See
Mookini v. United States, 303 U.S. 201, 205, 58 S.Ct. 543, 545,
82 L.Ed. 748. As the Bakelite and Williams opinions recognize,
the Court of Claims and the Court of Customs and Patent Appeals
were created to carry into effect powers enjoyed by the National
Government over subject matter-roughly, payment of debts and collection
of customs revenue-and not over localities. What those opinions
fail to deal with is whether that distinction deprives American
Insurance Co. v. Canter of controlling force.
[. . .]
To deny that Congress may create tribunals under
Article III for the sole purpose of adjudicating matters that
it might have reserved for legislative or executive decision would
be to deprive it of the very choice that Mr. Justice Curtis insisted
it enjoys. Of course possession of the choice, assuming it is coextensive
with the range of matters confided to the courts,FN24
subjects those courts to the continuous possibility that their entire
jurisdiction may be withdrawn. See
Williams v. United States, 289 U.S. 553, 580-581, 53 S.Ct. 751,
760, 77 L.Ed. 1372. But the threat thus facing their independence
is not in kind or effect different from that sustained by all inferior
federal courts. The great constitutional compromise that resulted
in agreement upon
Art. III, s 1, authorized but did not obligate Congress to create
inferior federal courts. 1 Farrand, The Records of the Federal Convention
(1911), 118, 124-125; The Federalist, No. 81 (Wright ed. 1961),
at 509 (Hamilton). Once created, they passed almost a century without
exercising any very significant jurisdiction. Warren, New Light
on the History of the Federal Judiciary Act of 1789, 37 Harv.L.Rev.
49, 65-70 (1923); Frankfurter, Distribution of Judicial Power Between
United States and State Courts, 13 Cornell L.Q. 499 (1928). Throughout
this period and beyond it up to today, they remained constantly
subject to jurisdictional curtailment.
Turner v. Bank of North America, 4 Dall. 8, 10 note,
1 L.Ed. 718 (Chase, J.);
Cary v. Curtis, 3 How. 236, 245, 11 L.Ed. 576;
Sheldon v. Sill, 8 How. 441, 449, 12 L.Ed. 1147;
Kline v. Burke Construction Co., 260 U.S. 226, 233-234, 43 S.Ct.
79, 82, 67 L.Ed. 226. Even if it should be conceded that the
Court of Claims or the Court of Customs and Patent Appeals is any
more likely to be supplanted, we do not think the factor of constitutional
But see note 21, supra.
See generally Hart and Wechsler, The Federal Courts and the
Federal System (1953), 312-340, and more specifically, 370
U.S., pp. 567-568, 82 S.Ct., pp. 1481-1482, infra.
has been said should suffice to demonstrate that whether a tribunal
is to be recognized as one created under
Article III depends basically upon whether its establishing
legislation complies with the limitations of that article; whether,
in other words, its business is the federal business there specified
and its judges and judgments are allowed the independence there
expressly or impliedly made requisite. To ascertain whether the
courts now under inquiry can meet those tests, we must turn to examine
their history, the development of their functions, and their present
[. . .]
was filed, the Congress had declared the Court of Claims ‘to be
a court established under article III of the Constitution of the
United States.’ Act of July 28, 1953, s 1, 67 Stat. 226,
28 U.S.C.A. s 171.
Not that this ipse dixit made the Court of Claims an Article
III court, for it must be examined in light of the congressional
power exercised and the jurisdiction enjoyed, together with the
characteristics of its judges. But the 1953 Act did definitely establish
the intent of the Congress, which prior to that time
was not clear in light of the Williams holding 20 years earlier
that it was not an Article III court."
[. . .]
The judicial functions exercised by
Article III courts cannot be performed by Congress nor delegated
to agencies under its supervision and control.
The bill of
attainder is banned by Art. I, s 9. If there is to be punishment,
courts (in the constitutional sense) must administer it.
As we stated in
United States v. Lovett, 328 U.S. 303, 317, 66 S.Ct. 1073, 1079,
90 L.Ed. 1252:
The limitations on
Article III courts that distinguish them from Article I
courts were stated by Chief Justice Vinson in
National Mut. Insurance Co. v. Tidewater Transfer Co., 337 U.S.
582, 629-630, 69 S.Ct. 1173, 1201, 93 L.Ed. 1556, in words
that have, I think, general acceptance, though on the precise
issue he wrote in dissent:
Keller v. Potomac Electric Power Co., 1923, 261 U.S. 428, 43
S.Ct. 445, 67 L.Ed. 731, where this Court had before it
an Act under which the courts of the District of Columbia were
given revisory power over rates set by the Public Utilities
Commission of the District, the appellee sought to sustain the
appellate jurisdiction given this Court by the Act on the basis
that ‘Although Art. III of the Constitution limits the jurisdiction
of the federal courts, this limitation is subject to the power
of Congress to enlarge the jurisdiction, where such enlargement
may reasonably be required to enable Congress to exercise the
express powers conferred upon it by the Constitution.’
261 U.S. at page 435, 43 S.Ct. 445, 67 L.Ed. 731. There,
as here, the power relied upon was that given Congress to exercise
exclusive jurisdiction over the District of Columbia, and to
make all laws necessary and proper to carry such powers into
effect. But this Court clearly and unequivocally rejected the
contention that Congress could thus extend the jurisdiction
of constitutional courts, citing the note to
Hayburn's Case, 1792, 2 Dall. 409, 410, 1 L.Ed. 436;
United States v. Ferreira, 1851, 13 How. 40, note 52, 14 L.Ed.
42 and Gordon v. United States, 1864, 117 U.S. 697. These
and other decisions of this Court clearly condition the power
of a constitutional court to take cognizance of any cause upon
the existence of a suit instituted according to the regular
course of judicial procedure,
Marbury v. Madison, 1803, 1 Cranch 137, 2 L.Ed. 60, the
power to pronounce a judgment and carry it into effect between
persons and parties who bring a case before it for decision,
Muskrat v. United States, 1910, 219 U.S. 346, 31 S.Ct. 250,
55 L.Ed. 246; Gordon v. United States, supra, the absence
of revisory or appellate power in any other branch of Government,
Hayburn's Case, supra; United States v. Ferreira, supra, and
the absence of administrative or legislative issues or controversies,
Keller v. Potomac Electric Power Co., supra;
Postum Cereal Co. v. California Fig Nut Co., 1927, 272 U.S.
693, 47 S.Ct. 284, 71 L.Ed. 478.'
‘Those who wrote our Constitution
well knew the danger inherent in special legislative acts which
take away the life, liberty, or property of particular named persons,
the legislature thinks them guilty of conduct which deserves punishment.
They intended to safeguard the people of this country from punishment
without trial by duly constituted courts.’
Moreover, when an Article
III court of law acts, there is a precise procedure that must be
‘An accused in court
must be tried by an impartial jury, has a right to be represented
by counsel, he must be clearly informed of the charge against him,
the law which he is charged with violating must have been passed
before he committed the act charged, he must be confronted by the
witnesses against him, he must not be compelled to incriminate himself,
he cannot twice be put in jeopardy for the same offense, and even
after conviction no cruel and unusual punishment can be inflicted
upon him.’ Id., 317-318,
66 S.Ct. at 1080.
Freytag v. C.I.R. 501
U.S. 868, 889, 111 S.Ct. 2631, 2644 (U.S.,1991)
Petitioners, however, underestimate the importance of this Court's
time-honored reading of the Constitution as giving Congress wide
discretion to assign the task of adjudication in cases arising under
federal law to legislative tribunals. See, e.g., American Insurance
Co. v. Canter, 1 Pet. 511, 546, 7 L.Ed. 242 (1828) (the judicial
power of the United States is not limited to the judicial power
defined under Article III and may be exercised by legislative courts);
Williams v. United States, 289 U.S. 553, 565-567, 53 S.Ct. 751,
754-755, 77 L.Ed. 1372 (1933) (same).
[Freytag v. C.I.R., 501 U.S. 868, 889, 111 S.Ct. 2631, 2644 (U.S.,1991)]
Ex parte Wilson 140 U.S.
575, *578-579, 11 S.Ct. 870,**872 (U.S.1891)
We may here, in passing, notice that
the distinction between district courts when sitting as courts of
the territory, and when sitting as courts of the United States was
fully developed and explained in the case of Ex parte Gon-sha-yee
supra; that by section 629, Rev. St., the circuit courts of the
United States are given jurisdiction of crimes and offenses cognizable
under the authority of the United States; and that by the act organizing
the territory of New Mexico, of September 9, 1850,
(9 St. 446,) and the subsequent act
of February 24, 1863, (12 St. 664,) organizing the territory of
Arizona, the district courts of the latter territory were given
the same jurisdiction in all cases arising under the constitution
and laws of the United States as is vested in the circuit and district
courts of the United States. It follows that as the circuit courts
of the United States have jurisdiction over the crime of murder
committed within any fort, arsenal, or other place within the exclusive
jurisdiction of the United States, so prior to 1885 the district
courts of a territory had jurisdiction over the crime of murder
committed by any person other than an Indian upon an Indian reservation
within its territorial limits, and that such jurisdiction has not
been taken away by the legislation of that year. The first contention
of petitioner, therefore, cannot be sustained.
[Ex parte Wilson, 140 U.S. 575, 578-579, 11 S.Ct. 870, 872 (U.S.1891)]
Article I and Article III Tribunals-Wikipedia
question for decision is, therefore, squarely presented to us, as it
was to the Circuit Court, whether, by the aid of that statute, and within
the limits of the power it intended to confer, this bill can be sustained
under the general principles of equity jurisprudence.
We say by the aid of that statute, because it is conceded on all sides
that without it the bill cannot stand. The service of compulsory process
on a party residing without the limits of the district of Connecticut
who is not found within them, is expressly forbidden by the general
statute defining the jurisdiction of the circuit courts. Parties and
subjects of complaint having no proper connection with each other are
together in this bill, and they, by the accepted canons of equity, pleading,
render it multifarious. This, and other matters of like character, which
are proper causes of demurrer, are fatal to it, unless the difficulty
be cured by the statute.
When we recur to its provisions, which are said to authorize these and
other departures from the general rules of equity procedure, counsel
for the appellees insist that it is unconstitutional, not only in the
particulars just alluded to, but that it is absolutely void as affecting
the substantial rights of defendants in regard to matters beyond the
power of Congress.
If this be true, we need inquire no further into the frame of the bill,
and we therefore proceed, on the threshold, to consider the objections
to the validity of the statute.
The Constitution declares (art. 3, sect. 2) that the judicial power
shall extend to all cases in law and equity arising under the Constitution,
the laws of the United States, and the treaties made, or which shall
be made, under their authority; and to controversies to which the United
States shall be a party.
The matters in regard to which the statute authorizes a suit to be brought
are very largely those arising under the act which chartered the Union
Pacific Railroad Company, conferred on it certain rights and benefits,
and imposed on it certain obligations. It is in reference to these rights
and obligations that the suit is to be brought. It is also be be brought
by the United States, which is, therefore, necessarily the party complainant.
Whether, therefore, this suit is authorized by the statute or not, it
is very clear that the general subject on which Congress legislated
is within the judicial power as defined by the Constitution.
The same article declares, in
sect. 1, that this ‘power shall be vested in one supreme court and
in such inferior courts as the Congress may, from time to time, ordain.’
The discretion, therefore, of Congress as to the number, the character,
the territorial limits of the courts among which it shall distribute
this judicial power, is unrestricted except as to the Supreme Court.
On that court the same article of the Constitution confers a very limited
original jurisdiction,-namely, ‘in all cases affecting ambassadors,
other public ministers, and consuls, and cases in which a State shall
be a party,’-and an
appellate jurisdiction in all the other cases to which this judicial
power extends, with such exceptions and under such regulations as the
Congress shall make.
There is in this same section a limitation as to the place of trial
of all crimes, which it declares shall (except in cases of impeachment)
be held in the State where they shall have been committed, if committed
within any State.
Article 6 of the amendments also provides that in all criminal prosecutions
‘the accused shall enjoy the right to a speedy and public trial by an
impartial jury of the State and district wherein the crime shall have
been committed, which district shall have been previously ascertained
by law.’ These provisions, which relate solely to the place of the trial
for criminal offences, do not affect the general proposition. We say,
therefore, that, with the exception of the Supreme Court, the authority
of Congress, in creating courts and conferring on them all or much or
little of the judicial power of the United States, is unlimited by the
Congress has, under this authority, created the district courts, the
circuit courts, and the Court of Claims, and vested each of them with
a defined portion of the judicial power found in the Constitution. It
has also regulated the appellate jurisdiction of the Supreme Court.
The jurisdiction of the Supreme Court and the Court of Claims is not
confined by geographical boundaries. Each of them, having by the law
of its organization jurisdiction of the subject-matter of a suit, and
of the parties thereto, can, sitting at Washington, exercise its power
by appropriate process, served anywhere within the limits of the territory
over which the Federal government exercises dominion.
It would have been competent for Congress to organize a judicial system
analogous to that of England and of some of the States of the Union,
and confer all original jurisdiction on a court or courts which should
possess the judicial power with which that body thought proper, within
the Constitution, to invest them, with authority to exercise that jurisdiction
throughout the limits of the Federal government. This has been done
in reference to the Court of Claims. It has now jurisdiction only of
cases in which the United States is defendant. It is just as
clearly within the power of Congress to give it exclusive jurisdiction
of all actions in which the United States is plaintiff. Such an extension
of its jurisdiction would include all that the statute under consideration
has granted to the Circuit Court.
It is true that Congress has declared that no person shall be sued in
a circuit court of the United States who does not reside within the
district for which the court was established, or who is not found there.
But a citizen residing in Oregon may be sued in Maine, if found there,
so that process can be served on him. There is, therefore, nothing in
the Constitution which forbids Congress to enact that, as to a class
of cases or a case of special character, a circuit court-any circuit
court-in which the suit may be brought, shall, by process served anywhere
in the United States, have the power to bring before it all the parties
necessary to its decision.
Whether parties shall be compelled to answer in a court of the United
States wherever they may be served, or shall only be bound to appear
when found within the district where the suit has been brought, is merely
a matter of legislative discretion, which ought to be governed by considerations
of conveyience, expense, &c., but which, when exercised by Congress,
is controlling on the courts.
So, also, the doctrine of multifariousness; whether relating to improperly
combining persons or grievances in the bill, it is simply a rule of
pleading adopted by courts of equity. It has been found convenient in
the administration of justice, and promotive of that end, that parties
who have no proper connection with each other shall not be compelled
to litigate together in the same suit, and that matters wholly distinct
from and having no relation to each other, and requiring defences equally
unconnected, shall not be alleged and determined in one suit. The rule
itself, however, is a very accommodating one, and by no means inflexible.
Such as it is, however, it may be modified, limited, and controlled
by the same power which creates the court and confers its jurisdiction.
The Constitution imposes no restraint in this respect upon the power
of Congress. Sect. 921 of the Revised Statutes, which has been the law
for fifty years, declares that when causes of like nature or relating
to the same question are pending, the court may consolidate
them, or make such other orders as are necessary to avoid costs and
delay. It is every-day practice, under this rule, to do what the statute
authorizes to be done in the case before us.
But it is argued that the statute confers a special jurisdiction to
try a single case, and is intended to grant the complainant new and
substantial rights, at the expense and by a corresponding invasion of
those of the defendants.
It does not create a new or special tribunal. Any circuit court of the
United States where the bill might be filed was, by the act, invested
with the jurisdiction to try the case. Nor was new power conferred on
the court beyond those which we have regarded as affecting the mode
of procedure. It seems to us that any circuit court, sitting as a court
of equity, which could by its process have lawfully obtained jurisdiction
of the parties, and considered in one suit all the matters mentioned
in the statute, could have done this before the act as well as afterwards.
But if this be otherwise, we are aware of no constitutional objection
to the power of the legislative body to confer on an existing court
a special jurisdiction to try a specific matter which in its nature
is of judicial cognizance.
The principal defendant in this suit, the one around which all the contest
is ranged, is a corporation created by an act which reserved the right
of Congress to repeal or modify the charter. To this corporation Congress
made a loan of $27,000,000, and a donation of lands of a value probably
equal to the loan.
The statute-books of the States are full of acts directing the law officers
to proceed against corporations, such as banks, insurance companies,
and others, in order to have a decree declaring their charters forfeited.
Special statutes are also common, ordering suits against such corporations
when they have become insolvent, to wind up their business affairs,
and to distribute their assets, and prescribing with minuteness the
course of procedure which shall be followed and the court in which the
suit shall be brought.
This court said, in the case of The
Bank of Columbia v. Okely (4 Wheat. 235), in speaking
of a summary proceeding given by the charter of that bank for the collection
of its debts: ‘It is the remedy, and not the right, and as such we have
no doubt *606
of its being subject to the will of Congress. The forms of administering
justice, and the duties and powers of courts as incident to the exercise
of a branch of sovereign power, must ever be subject to legislative
will, and the power over them is unalienable, so as to bind subsequent
legislatures.’ And in
Young v. The Bank of Alexandria (4 Cranch, 397), Mr.
Chief Justice Marshall says: ‘There is a difference between those rights
on which the validity of the transactions of the corporation depends,
which must adhere to those transactions everywhere, and those peculiar
remedies which may be bestowed on it. The first are of general obligation;
the last, from their nature, can only be exercised in those courts which
the power making the grant can regulate.’ See also The Commonwealth
v. The Delaware & Hudson Canal Co. et al., 43 Pa. St. 227;
State of Maryland v. Northern Central Railroad Co., 18
Md. 193; Colby v. Dennis, 36 Me. 1; Gowan v.
Penobscot Railroad Co., 44 id. 140.
Statutes of this character, if not so common as to be called ordinary
legislation, are yet frequent enough to justify us in saying that they
are well-recognized acts of legislative power uniformly sustained by
It may be said, and probably with truth, that such statutes, when they
have been held to be valid by the courts, do not infringe the substantial
rights of property or of contract of the parties affected, but are intended
to supply defects of power in the courts, or to give them improved methods
of procedure in dealing with existing rights.
This leads to an inquiry indispensable to a sound decision of the case
before us; namely, does this statute, by its true construction, do any
thing more than this?
We might rest this branch of the case upon the concession of counsel
for appellants, made both in their brief and in the oral argument, but
we proceed to examine the proposition for ourselves.
The first suggestion of the legal mind on this inquiry is, that it will
not be presumed, unless the language of the statute imperatively requires
it, that Congress, by a retrospective law, intended to create new rights
in one party to the suit at the expense, or by an invasion of the rights,
of other parties; or,
where no right of action founded on past transactions existed, that
Congress intended to create it.
The United States was to be sole complainant in a suit in equity, and
though there may be other defendants, the Union Pacific Railroad Company
is the only one named in the act. The relief to be granted is the collection
and payment of moneys and the restoration of property, or its value,
‘either to said railroad corporation or to the United States, whichever
shall in equity be entitled thereto.’ The decree, therefore, can only
be made on the ground of some relief to which the United States or the
company is entitled by the general principles of equity jurisprudence.
It is no objection to granting such relief that the company is a defendant,
for by the flexibility of chancery practice a person whose interests
in the subject of litigation are on the same side with the complainant
may be made a defendant. The corporation could also in such a suit file
a cross-bill against the complainant, and, by virtue of this statute,
against any co-defendant of whom it could rightfully claim the relief
which the statute authorizes.
But whatever be the relief asked, it could only, by the express terms
of the act, be granted to that party who was in equity thereunto entitled.
It is very plain that there was here no new right established. No new
cause of equitable relief. No new rule for determining what were the
rights of the parties. That was to be decided by the principles of equity;
not new principles of equity, but the existing principles of equitable
But the statute very specifically defines the matters which may be embraced
in this suit as foundations for relief, and classifies them under a
very few heads, by declaring who besides the corporation may be sued.
They are persons who have received,--
[. . .]
proposition is that the United States, as the grantor of the franchises
of the company, the author of its charter, and the donor of lands, rights,
and privileges of immense value, and as parens patriae, is a
trustee, invested with power to enforce the proper use of the property
and franchises granted for the benefit of the public.
The legislative power of Congress over this subject has already
been considered, and need not be further alluded to. The trust here
relied on is one which is supposed to grow out of the relations of the
corporation to the government, which, without any aid from legislation,
are cognizable in the ordinary courts of equity.
It must be confessed that, with every desire to find some clear and
well-defined statement of the foundation for relief under this head
of jurisdiction, and after a very careful examination of the authorities
cited, the nature of this claim of right remains exceedingly vague.
Nearly all the cases- we may almost venture to say all of them-fall
under two heads:--
1. Where municipal, charitable, religious, or eleemosynary corporations,
public in their character, had abused their franchises, perverted the
purpose of their organization, or misappropriated their funds, and as
they, from the nature of their corporate functions, were more or less
under government supervision, the Attorney-General proceeded against
them to obtain correction of the abuse; or,
2. Where private corporations, chartered for definite and limited purposes,
had exceeded their powers, and were restrained
or enjoined in the same manner from the further violation of the limitation
to which their powers were subject.
The doctrine in this respect is well condensed in the opinion in
The People v. Ingersoll, recently decided by the
Court of Appeals of New York. 58 N. Y. 1. ‘If,’ says the court,
‘the property of a corporation be illegally interfered with by corporation
officers and agents or others, the remedy is by action at the suit of
the corporation, and not of the Attorney-General. Decisions are cited
from the reports of this country and of this State, entitled to consideration
and respect, affirming to some extent the doctrine of the English courts,
and applying it to like cases as they have arisen here. But in none
has the doctrine been extended beyond the principles of the English
cases; and, aside from the jurisdiction of courts of equity over trusts
of property for public uses and over the trustees, either corporate
or official, the courts have only interfered at the instance of the
Attorney-General to prevent and prohibit some official wrong by municipal
corporations or public officers, and the exercise of usurped or the
abuse of actual powers.’ p. 16.
To bring the present case within the rule governing the exercise of
the equity powers of the court, it is strongly urged that the company
belongs to the class first described.
The duties imposed upon it by the law of its creation, the loan of money
and the donation of lands made to it by the United States, its obligation
to carry for the government, and the great purpose of Congress in opening
a highway for public use and the postal service between the widely separated
States of the Union, are relied on as establishing this proposition.
But in answer to this it must be said that, after all, it is but a railroad
company, with the ordinary powers of such corporations. Under its contract
with the government, the latter has taken good care of itself; and its
rights may be judicially enforced without the aid of this trust relation.
They may be aided by the general legislative powers of Congress, and
by those reserved in the charter, which we have specifically quoted.
The statute which conferred the benefits on this company, the loan of
money, the grant of lands, and the right of way, did the same for other
corporations already in existence under State or territorial charters.
Has the United States the right
to assert a trust in the Federal government which would authorize a
suit like this by the Attorney-General against the Kansas Pacific Railway
Company, the Central Pacific Railroad Company, and other companies in
a similar position?
If the United States is a trustee, there must be cestuis que trust.
There cannot be the one without the other, and the trustee cannot be
a trustee for himself alone. A trust does not exist when the legal right
and the use are in the same party, and there are no ulterior trusts.
Who are the cestuis que trust for whose benefit this suit is
brought? If they be the defrauded stockholders, we have already shown
that they are capable of asserting their own rights; that no provision
is made for securing them in this suit should it be successful, and
that the statute indicates no such purpose.
If the trust concerned relates to the rights of the public in the use
of the road, no wrong is alleged capable of redress in this suit, or
which requires such a suit for redress.
Company v. Peniston (18 Wall. 5) shows that the company
is not a mere creature of the United States, but that while it owes
duties to the government, the performance of which may, in a proper
case, be enforced, it is still a private corporation, the same as other
railroad companies, and, like them, subject to the laws of taxation
and the other laws of the States in which the road lies, so far as they
do not destroy its usefulness as an instrument for government purposes.
We are not prepared to say that there are no trusts which the United
States may not enforce in a court of equity against this company. When
such a trust is shown, it will be time enough to recognize it. But we
are of opinion that there is none set forth in this bill which, under
the statute authorizing the present suit, can be enforced in the Circuit
There are many matters alleged in the bill in this case, and many points
ably presented in argument, which have received our careful attention,
but of which we can take no special notice in this opinion. We have
devoted so much space to the more important matters, that we can only
say that, under the view which we take of the scope of the enabling
statute, they furnish no ground for relief in this suit.
The liberal manner in which the government has aided this company in
money and lands is much urged upon us as a reason why the rights of
the United States should be liberally construed. This matter is fully
considered in the opinion of the court already cited, in United States
v. Union Pacific Railroad Co. (supra), in which it is shown that
it was a wise liberality for which the government has received all the
advantages for which it bargained, and more than it expected. In the
feeble infancy of this child of its creation, when its life and usefulness
were very uncertain, the government, fully alive to its importance,
did all that it could to strengthen, support, and sustain it. Since
it has grown to a vigorous manhood, it may not have displayed the gratitude
which so much care called for. If this be so, it is but another instance
of the absence of human affections which is said to characterize all
corporations. It must, however, be admitted that it has fulfilled the
purpose of its creation and realized the hopes which were then cherished,
and that the government has found it a useful agent, enabling it to
save vast sums of money in the transportation of troops, mails, and
supplies, and in the use of the telegraph.
A court of justice
is called on to inquire not into the balance of benefits and favors
on each side of this controversy, but into the rights of the parties
as established by law, as found in their contracts, as recognized by
the settled principles of equity, and to decide accordingly. Governed
by this rule, and by the intention of the legislature in passing the
act under which this suit is brought, we concur with the Circuit Court
in holding that no case for relief is made by the bill.
[U.S. v. Union Pac.
R. Co., 98 U.S. 569 (1878)]
v. Marathon Pipeline, 458 U.S. 50 (1982)
“The distinction between public rights
and private rights has not been definitively explained in our precedents.FN22
Nor is it necessary to do so in the present cases, for it suffices
to observe that a matter of public rights must at a minimum arise
“between the government and others.”
Ex parte Bakelite Corp., supra, at 451, 49 S.Ct., at 413.
FN23 In contrast, “the liability of one individual to another
under the law as defined,”
Crowell v. Benson, supra, at 51, 52 S.Ct., at 292, is a matter
of private rights. Our precedents clearly establish that only controversies
in the former category may be removed from
Art. III courts and delegated to legislative courts or administrative
agencies for their determination. See
Atlas Roofing Co. v. Occupational Safety and Health Review Comm'n,
430 U.S. 442, 450, n. 7, 97 S.Ct. 1261, 1266, n. 7, 51 L.Ed.2d 464
Crowell v. Benson, supra, 285 U.S., at 50-51, 52 S.Ct., at 292.
See also Katz, Federal Legislative Courts, 43 Harv.L.Rev.
894, 917-918 (1930).
FN24 Private-rights disputes, on the other hand, lie at the
core of the historically recognized judicial power.”
[Northern Pipeline Const. Co. v. Marathon Pipe Line Co., 458 U.S.
50, 102 S.Ct. 2858 (1983)]
Williams v. U.S., 289
U.S. 553 (1933)
v. United States (C.C.A.) 128 F. 826, 830, 831. In that case,
Judge Sanborn, in a very carefully drawn opinion, pointed out that
Congress cannot vest
any portion of the judicial power granted by
section 1 and defined by section 2 of the third article of the
Constitution in courts not ordained and established by itself;
that the judicial power there granted and defined necessarily extended
only to the trial of the classes of cases named in section 2; but
that these sections neither expressly nor impliedly prohibited Congress
from conferring judicial power upon other courts.
‘Thus,’ he says, ‘the authority
granted *567 to territorial courts to hear and determine controversies
arising in the territories of the United States is judicial power.
But it is not a part of that judicial power granted by
section 1, and defined by section 2, of article 3 of the Constitution.
Nevertheless, under the constitutional grant to Congress of power
to ‘make all needful rules and regulations respecting the territory
* * * belonging to the United States' (article 4, s 3), that body
may create territorial courts not contemplated or authorized by
article 3 of the Constitution, and may confer upon them plenary
judicial power, because the establishment of such courts and the
bestowal of such authority constitute appropriate means by which
to exercise the congressional power to make needful rules respecting
the territory belonging to the United States.”
[Williams v. U.S., 289 U.S. 553, 53 S.Ct.