NATIONAL MUT. INS. CO. V. TIDEWATER TRANSFER CO., INC., 337 U. S. 582 (1949)
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U.S. Supreme Court
National Mut. Ins. Co. v. Tidewater Transfer Co., Inc., 337 U.S. 582 (1949)
National Mutual Insurance Co. v. Tidewater Transfer Co., Inc.
No. 29
Argued November 8, 1948
Decided June 20, 1949
337 U.S. 582
CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
Syllabus
The Act of April 20, 1940, c. 117, 54 Stat. 143 (now 28 U.S.C. § 1332), conferred on the federal district courts jurisdiction of civil actions (involving no federal question) between citizens of the District of Columbia and citizens of a State. A District of Columbia corporation instituted in the Federal District Court for Maryland an action against Virginia corporation wherein the jurisdiction depended solely on diversity of citizenship. The District Court held the Act unconstitutional, and dismissed the complaint. The Court of Appeals affirmed.
Held: the Act is constitutional, and the judgment is reversed. Pp. 337 U. S. 583-585, 337 U. S. 604.
165 F.2d 531 reversed.
A District of Columbia corporation sued a Virginia corporation in the Federal District Court for Maryland, the jurisdiction depending solely on diversity of citizenship. The District Court dismissed the complaint. The Court of Appeals affirmed. 165 F.2d 531. This Court granted certiorari. 333 U.S. 860. Reversed, p. 337 U. S. 604.
MR. JUSTICE JACKSON announced the judgment of the Court and an opinion in which MR. JUSTICE BLACK and MR. JUSTICE BURTON join.
This case calls up for review a holding that it is unconstitutional for Congress to open federal courts in the several states to action by a citizen of the District of Columbia against a citizen of one of the states. The petitioner, as plaintiff, commenced in the United States District Court for Maryland an action for money judgment on a claim arising out of an insurance contract. No cause of action under the laws or Constitution of the United States was pleaded, jurisdiction being predicated only upon an allegation of diverse citizenship. The diversity set forth was that plaintiff is a corporation created by District of Columbia law, while the defendant is a corporation chartered by Virginia, amenable to suit in Maryland by virtue of a license to do business there. The learned District Judge concluded that, while this diversity met jurisdictional requirements under the Act of Congress, [Footnote 1] it did not comply with diversity requirements of the Constitution as to federal jurisdiction, and so dismissed. [Footnote 2] The Court of Appeals, by a divided court, affirmed. [Footnote 3] Of twelve district courts that had considered the question up to the time review in this Court was sought, all except three had held the enabling Act unconstitutional, [Footnote 4] and the two Courts of Appeals which had
spoken on the subject agreed with that conclusion. [Footnote 5] The controversy obviously was an appropriate one for review here, and writ of certiorari issued in the case. [Footnote 6]
The history of the controversy begins with that of the Republic. In defining the cases and controversies to which the judicial power of the United States could extend, the Constitution included those "between citizens of different States." [Footnote 7] In the Judiciary Act of 1789, Congress created a system of federal courts of first instance and gave them jurisdiction of suits "between a citizen of the State where the suit is brought and a citizen of another State." [Footnote 8] In 1804, the Supreme Court, through Chief Justice Marshall, held that a citizen of the District of Columbia was not a citizen of a State within the meaning and intendment of this Act. [Footnote 9] This decision closed federal courts in the states to citizens of the District of Columbia in diversity cases, and, for 136 years, they remained closed. In 1940, Congress enacted the statute challenged here. It confers on such courts jurisdiction if the action
"is between citizens of different States, or
citizens of the District of Columbia, the Territory of Hawaii, or Alaska, and any State or Territory. [Footnote 10]"
The issue here depends upon the validity of this Act, which, in substance, was reenacted by a later Congress [Footnote 11] as part of the Judicial Code. [Footnote 12]
Before concentrating on detail, it may be well to place the general issue in a larger perspective. This constitutional issue affects only the mechanics of administering justice in our federation. It does not involve an extension or a denial of any fundamental right or immunity which goes to make up our freedoms. Those rights and freedoms do not include immunity from suit by a citizen of Columbia or exemption from process of the federal courts. Defendant concedes that it can presently be sued in some court of law, if not this one, and it grants that Congress may make it suable at plaintiff's complaint in some, if not this, federal court. Defendant's contention only amounts to this -- that it cannot be made to answer this plaintiff in the particular court which Congress has decided is the just and convenient forum.
The considerations which bid us strictly to apply the Constitution to congressional enactments which invade fundamental freedoms or which reach for powers that would substantially disturb the balance between the Union and its component states are not present here. In mere mechanics of government and administration, we
should, so far as the language of the great Charter fairly will permit, give Congress freedom to adapt its machinery to the needs of changing times. In no case could the admonition of the great Chief Justice be more appropriately heeded -- " . . . we must never forget, that it is a constitution we are expounding." [Footnote 13]
Our first inquiry is whether, under the third, or Judiciary, Article of the Constitution, [Footnote 14] extending the judicial power of the United States to cases or controversies "between citizens of different States," a citizen of the District of Columbia has the standing of a citizen of one of the states of the Union. This is the question which the opinion of Chief Justice Marshall answered in the negative, by way of dicta if not of actual decision. @ 6 U. S. 2 Cranch 445, 6 U. S. 453. Among his contemporaries, at least, Chief Justice Marshall was not generally censured for undue literalness in interpreting the language
of the Constitution to deny federal power and he wrote from close personal knowledge of the Founders and the foundation of our constitutional structure. Nor did he underestimate the equitable claims which his decision denied to residents of the District, for he said that
"It is true that, as citizens of the United States and of that particular district which is subject to the jurisdiction of congress, it is extraordinary that the courts of the United States, which are open to aliens and to the citizens of every state in the union, should be closed upon them. But this is a subject for legislative, not for judicial, consideration. [Footnote 16]"
The latter sentence, to which much importance is attached, is somewhat ambiguous, because constitutional amendment, as well as statutory revision, is for legislative, not judicial, consideration. But the opinion as a whole leaves no doubt that the Court did not then regard the District as a state for diversity purposes.
To now overrule this early decision of the Court on this point, and hold that the District of Columbia is a state, would, as that opinion pointed out, give to the word "state" a meaning in the Article which sets up the judicial establishment quite different from that which it carries in those Articles which set up the political departments and in other Articles of the instrument. While the word is one which can contain many meanings, such inconsistency in a single instrument is to be implied only where the context clearly requires it. There is no evidence that the Founders, pressed by more general and immediate anxieties, thought of the special problems of the District of Columbia in connection with the judiciary. This is not strange, for the District was then only a contemplated entity. But, had they thought of it, there is nothing to indicate that it would have been referred to as a state, and
much to indicate that it would have required special provisions to fit its anomalous relationship into the new judicial system, just as it did to fit it into the new political system.
In referring to the "States" in the fateful instrument which amalgamated them into the "United States," the Founders obviously were not speaking of states in the abstract. They referred to those concrete organized societies which were thereby contributing to the federation by delegating some part of their sovereign powers, and to those that should later be organized and admitted to the partnership in the method prescribed. They obviously did not contemplate unorganized and dependent spaces as states. The District of Columbia being nonexistent in any form, much less as a state at the time of the compact, certainly was not taken into the Union of states by it, nor has it since been admitted as a new state is required to be admitted.
We therefore decline to overrule the opinion of Chief Justice Marshall, and we hold that the District of Columbia is not a state within Article III of the Constitution. In other words, cases between citizens of the District and those of the states were not included in the catalogue of controversies over which the Congress could give jurisdiction to the federal courts by virtue of Art. III.
This conclusion does not, however, determine that Congress lacks power under other provisions of the Constitution to enact this legislation. Congress, by the Act in question, sought not to challenge or disagree with the decision of Chief Justice Marshall that the District of Columbia is not a state for such purposes. It was careful to avoid conflict with that decision by basing the new legislation on powers that had not been relied upon by the First Congress in passing the Act of 1789.
The Judiciary Committee of the House of Representatives recommended the Act of April 20, 1940, as
"a reasonable
exercise of the constitutional power of Congress to legislate for the District of Columbia and for the Territories. [Footnote 17]"
This power the Constitution confers in broad terms. By Art. I, Congress is empowered "to exercise exclusive Legislation in all Cases whatsoever, over such District." [Footnote 18] And, of course, it was also authorized "to make all Laws which shall be necessary and proper for carrying into Execution" such powers. [Footnote 19] These provisions were not relevant in Chief Justice Marshall's interpretation of the Act of 1789, because it did not refer in terms to the District, but only to states. It is therefore significant that, having decided that District citizens' cases were not brought within federal jurisdiction by Art. III and the statute enacted pursuant to it, the Chief Justice added, as we have seen, that it was extraordinary that the federal courts should be closed to the citizens of "that particular district which is subject to the jurisdiction of Congress." Such language clearly refers to Congress' Art. I power of "exclusive Legislation in all Cases whatsoever over such District." And mention of that power seems particularly significant in the context of Marshall's further statement that the matter is a subject for "legislative, not for judicial, consideration." Even if it be considered speculation to say that this was an expression by the Chief Justice that Congress had the requisite power under Art. I, it would be in the teeth of his language to say that it is a denial of such power. The Congress had acted on the belief that it possesses that power. We believe their conclusion is well founded.
It is elementary that the exclusive responsibility of Congress for the welfare of the District includes both power and duty to provide its inhabitants and citizens with courts adequate to adjudge not only controversies among themselves, but also their claims against, as well as suits brought by, citizens of the various states. It long has been held that Congress may clothe District of Columbia courts not only with the jurisdiction and powers of federal courts in the several states, but with such authority as a state may confer on her courts. 37 U. S. 619; Capital Traction Co. v. Hof, 174 U. S. 1; O'Donoghue v. United States,@ 289 U. S. 516. The defendant here does not challenge the power of Congress to assure justice to the citizens of the District by means of federal instrumentalities, or to empower a federal court within the District or run its process to summon defendants here from any part of the country. And no reason has been advanced why a special statutory court for cases of District citizens could not be authorized to proceed elsewhere in the United States to sit, where necessary or proper, to discharge the duties of Congress toward District citizens.
However, it is contended that Congress may not combine this function, under Art. I, with those under Art. III, in district courts of the United States. Two objections are urged to this. One is that no jurisdiction other than specified in Art. III can be imposed on courts that exercise the judicial power of the United States thereunder. The other is that Art. I powers over the District of Columbia must be exercised solely within that geographic area.
Of course, there are limits to the nature of duties which Congress may impose on the constitutional courts vested with the federal judicial power. The doctrine of separation of powers is fundamental in our system. It arises,
however, not from Art. III, nor any other single provision of the Constitution, but because "behind the words of the constitutional provisions are postulates which limit and control." Chief Justice Hughes in Principality of Monaco v. Mississippi, 292 U. S. 313, 292 U. S. 323. The permeative nature of this doctrine was early recognized during the Constitutional Convention. Objection that the present provision giving federal courts jurisdiction of cases arising "under this Constitution" would permit usurpation of nonjudicial functions by the federal courts was overruled as unwarranted, since it was "generally supposed that the jurisdiction given was constructively limited to cases of a Judiciary nature." 2 Farrand, Records of the Federal Convention 430. And this statute reflects that doctrine. It does not authorize or require either the district courts or this Court to participate in any legislative, administrative, political, or other nonjudicial function or to render any advisory opinion. The jurisdiction conferred is limited to controversies of a justiciable nature, the sole feature distinguishing them from countless other controversies handled by the same courts being the fact that one party is a District citizen. Nor has the Congress, by this statute, attempted to usurp any judicial power. It has deliberately chosen the district courts as the appropriate instrumentality through which to exercise part of the judicial functions incidental to exertion of sovereignty over the District and its citizens.
Unless we are to deny to Congress the same choice of means through which to govern the District of Columbia that we have held it to have in exercising other legislative powers enumerated in the same Article, we cannot hold that Congress lacked the power it sought to exercise in the Act before us.
It is too late to hold that judicial functions incidental to Art. I powers of Congress cannot be conferred on
courts existing under Art. III, for it has been done with this Court's approval. O'Donoghue v. United States, 289 U. S. 516. In that case, it was held that, although District of Columbia courts are Art. III courts, they can also exercise judicial power conferred by Congress pursuant to Art. I. The fact that District of Columbia courts, as local courts, can also be given administrative or legislative functions which other Art. III courts cannot exercise does but emphasize the fact that, although the latter are limited to the exercise of judicial power, it may constitutionally be received from either Art. III, or Art. I, and that congressional power over the District, flowing from Art. I, is plenary in every respect.
It is likewise too late to say that we should reach this result by overruling Chief Justice Marshall's view, unless we are prepared also to overrule much more, including some of our own very recent utterances. Many powers of Congress other than its power to govern Columbia require for their intelligent and discriminating exercise determination of controversies of a justiciable character. In no instance has this Court yet held that jurisdiction of such cases could not be placed in the regular federal courts that Congress has been authorized to ordain and establish. We turn to some analogous situations in which we have approved the very course that Congress has taken here.
Congress is given power by Art. I to pay debts of the United States. That involves as an incident the determination of disputed claims. We have held unanimously that congressional authority under Art. I, not the Art. III jurisdiction over suits to which the United States is a party, is the sole source of power to establish the Court of Claims and of the judicial power which that court exercises. Williams v. United States, 289 U. S. 553. In that decision, we also noted that it is this same Art. I power that is conferred on district courts by the
Tucker Act, [Footnote 20] which authorizes them to hear and determine such claims in limited amounts. Since a legislative court such as the Court of Claims is "incapable of receiving" Art. III judicial power, 26 U. S. 546, it is clear that the power thus exercised by that court and concurrently by the district courts flows from Art. I, not Art. III. Indeed, more recently, and again unanimously, this Court has said that, by the Tucker Act, the Congress authorized the district courts to sit as a court of claims, [Footnote 21] exercising the same, but no more, judicial power. United States v. Sherwood,@ 312 U. S. 584, 312 U. S. 591. And, but a few terms ago, in considering an Act by which Congress directed rehearing of a rejected claim and its redetermination in conformity with directions given in the Act, Chief Justice Stone, with the concurrence of all sitting colleagues, reasoned that
"The problem presented here is no different than if Congress had given a like direction to any district court to be followed as in other Tucker Act . . . cases."
Pope v. United States, 323 U. S. 1, 323 U. S. 14. Congress has taken us at our word, and recently conferred on the district courts exclusive jurisdiction of tort claims cognizable under the Federal Tort Claims Act, 60 Stat. 842, 843, also enacted
pursuant to Art. I powers. [Footnote 22] See Brooks v. United States, ante, p. 337 U. S. 49.
Congress also is given power in Art. I to make uniform laws on the subject of bankruptcies. That this, and not the judicial power under Art. III, is the source of our system of reorganizations and bankruptcy is obvious, Continental Illinois Nat. Bank & Trust Co. v. Chicago Rock Island & Pacific R. Co., 294 U. S. 648. But not only may the district courts be required to handle these proceedings, but Congress may add to their jurisdiction cases between the trustee and others that, but for the bankruptcy powers, would be beyond their jurisdiction because of lack of diversity required under Art. III. Schumacher v. Beeler, 293 U. S. 367. In that case, Chief Justice Hughes, for a unanimous Court, wrote that, by virtue of its Art. I authority over bankruptcies, the Congress could confer on the regular district courts jurisdiction of
"all controversies at law and in equity, as distinguished from proceedings in bankruptcy, between trustees as such and adverse claimants"
to the extent specified in § 23(b) of the Bankruptcy Act as amended. Such jurisdiction was there upheld in a plenary suit, in a district court, by which the trustee sought equitable relief relying
on allegations raising only questions of Ohio law concerning the validity under that law of a sheriff's levy and execution. Possession by the trustee not being shown, and there being no diversity, jurisdiction in the district court could flow only from the statute. Chief Justice Hughes noted that the distinction between proceedings in bankruptcy and suits at law and in equity was recognized by the terms of the statute itself, but held that
"Congress, by virtue of its constitutional authority over bankruptcies, could confer or withhold jurisdiction to entertain such suits, and could prescribe the conditions upon which the federal courts should have jurisdiction. . . . Exercising that power, the Congress prescribed in section 23b the condition of consent on the part of the defendant sued by the trustee. Section 23b was thus, in effect, a grant of jurisdiction subject to that condition."
293 U. S. 293 U.S. 367, 293 U. S. 374. He concluded that the statute granted jurisdiction to the district court "although the bankrupt could not have brought suit there if proceedings in bankruptcy had not been instituted. . . ." 293 U. S. 293 U.S. 367, 293 U. S. 377. And he stated the correct view to be that § 23 conferred substantive jurisdiction, 293 U. S. 293 U.S. 367, 293 U. S. 371, disapproving statements in an earlier case that Congress lacked power to confer such jurisdiction. Id. at 293 U. S. 377. Thus, the Court held that Congress had power to authorize an Art. III court to entertain a non-Art. III suit because such judicial power was conferred under Art. I. Indeed, the present Court has assumed, without even discussion, that Congress has such power. In Williams v. Austrian, 331 U. S. 642, 331 U. S. 657, the Chief Justice, speaking for the Court, said that
". . . Congress intended by the elimination of § 23 [from Chapter X of the Bankruptcy Act] to establish the jurisdiction of federal courts to hear plenary suits brought by a reorganization trustee, even though diversity or other usual ground for federal jurisdiction is lacking."
(Emphasis
supplied.) There was vigorous dissent as to the meaning of the statute, but the dissenting Justices referred to the Court's holding that
"a Chapter X trustee may bring this plenary suit in personam in a federal district court not the reorganization court, although neither diversity of citizenship nor other ground of federal jurisdiction exists."
331 U. S. 331 U.S. 642, 331 U. S. 664, 665. And the dissent continued: "No doubt Congress could authorize such a suit. See Schumacher v. Beeler, 293 U. S. 293 U.S. 367, 293 U. S. 374."
This assumption by the Court in the Beeler and Austrian cases that the Congress had power to confer on the district courts jurisdiction of nondiversity suits involving only state law questions made unnecessary any discussion of the source of the assumed power. In view of Congress' plenary control over bankruptcies, the Court may have grounded such assumption on Art. I. Or it might have considered that the jurisdiction was based on Art. III, and statutes enacted pursuant to it, giving the district courts jurisdiction over suits arising under the Constitution and laws of the United States. Had the Court held such a view, this latter might have commended itself as the most obvious answer. Consequently, silence in this respect, in the decision of each case, seems significant, particularly in contrast with repeated reference to Art. I power in the Beeler case, and sweeping language in the Austrian case that such jurisdiction existed despite lack of diversity "or other usual ground for federal jurisdiction." Nevertheless, it is now asserted, in retrospect, that those cases did arise under the laws of the United States. No justification is offered for that conclusion, and there is no effort to say just why or how the cases did so arise. This would indeed be difficult if we still adhere to the doctrine of Mr. Justice Holmes that "[a] suit arises under the law that creates the cause
of action." American Well Works Co. v. Layne & Bowler Co., 241 U. S. 257, 241 U. S. 260, for the cause of action in each case rested solely on state law.
But the matter does not rest on inference alone. Other decisions of this Court demonstrate conclusively that jurisdiction over the Beeler and Austrian suits was not, and could not have been, conferred under Art. III and statutes concerning suits arising under the laws of the United States. A most thoroughly considered utterance of this Court on that subject was given by Mr. Justice Cardozo in Gully v. First National Bank, 299 U. S. 109, where he said, without dissent,
"How and when a case arises 'under the Constitution or laws of the United States' has been much considered in the books. Some tests are well established. To bring a case within the statute, a right or immunity created by the Constitution or laws of the United States must be an element, and an essential one, of the plaintiff's cause of action. . . . [Emphasis added.] The right or immunity must be such that it will be supported if the Constitution or laws of the United States are given one construction or effect, and defeated if they receive another. . . . A genuine and present controversy, not merely a possible or conjectural one, must exist with reference thereto . . . , and the controversy must be disclosed upon the face of the complaint. . . ."
299 U. S. 299 U.S. 109, 299 U. S. 112-113. After reviewing previous cases, Mr. Justice Cardozo referred to a then recent opinion by Mr. Justice Stone in which he said, for a unanimous court, that federal jurisdiction
"may not be invoked where the right asserted is nonfederal, merely because the plaintiff's right to sue is derived from federal law, or because the property involved was obtained under federal statute. The federal nature of the right to be established is decisive -- not the source of the authority to establish it."
288 U. S. 483. (Emphasis added.) [Footnote 23] See also Switchmen's Union of North America v. National Mediation Board, 320 U. S. 297; General Committee v. M.K.T R. Co.,@ 320 U. S. 323.
Neither the Austrian nor the Beeler case meets these tests, required before a case can be said to arise under the laws of the United States, any more than does the case before us. Austrian, as trustee, sued in equity for an accounting based on a charge that affairs of a state-created corporation had been conducted by the officers in violation of state law. Beeler, as trustee, sued on a contention that a levy on property by an Ohio sheriff was void under state law. Both controversies, like the one before
us, called for a determination of no law question except those arising under state laws. The only way in which any law of the United States contributed to the case was in opening the district courts to the trustee, under Art. I powers of Congress, just as the present statute, under the same Article, opens those courts to residents of the District of Columbia. I n each case, in the words of Chief Justice Stone, the federal law provided not the right sought to be established, but only the authority of the trustee to establish it. The fact that the congressional power over bankruptcy granted by Art. I could open the court to the trustee does not mean that such suits arise under the laws of the United States; but it does mean that Art. I can supply a source of judicial power for their adjudication. The distinction is important, and it is decisive on this issue.
Neither the Beeler nor the Austrian case was one arising under the laws of the United States within the clear language of recent holdings by this Court. Unless we are to deny the jurisdiction in such cases which has consistently been upheld, we must rely on the Art. I powers of the Congress. We have been cited to no holding that such jurisdiction cannot spring from that Article. Under Art. I, the Congress has given the district courts not only jurisdiction over cases arising under the bankruptcy law, but also judicial power over nondiversity cases which do not arise under that or any other federal law. And this Court has upheld the latter grant.
Consequently, we can deny validity to this present Act of Congress only by saying that the power over the District given by Art. I is somehow less ample than that over bankruptcy given by the same Article. If Congress could require this district court to decide this very case if it were brought by a trustee, it is hard to see why it may not require its decision for a solvent claimant when done in pursuance of other Art. I powers.
We conclude that, where Congress, in the exercise of its powers under Art. I, finds it necessary to provide those on whom its power is exerted with access to some king of court or tribunal for determination of controversies that are within the traditional concept of the justiciable, it may open the regular federal courts to them regardless of lack of diversity of citizenship. The basis of the holdings we have discussed is that, when Congress deems that, for such purposes, it owes a forum to claimants and trustees, it may execute its power in this manner. The Congress, with equal justification apparently considers that it also owes such a forum to the residents of the District of Columbia in execution of its power and duty under the same Article. We do not see how the one could be sustained and the other denied.
We therefore hold that Congress may exert its power to govern the District of Columbia by imposing the judicial function of adjudicating justiciable controversies on the regular federal courts [Footnote 24] which, under the Constitution, it has the power to ordain and establish, and which it may invest with jurisdiction, and from which it may withhold jurisdiction "in the exact degrees and character which to Congress may seem proper for the public good." Lockerty v. Phillips, 319 U. S. 182, 319 U. S. 187.
The argument that congressional powers over the District are not to be exercised outside of its territorial limits also is pressed upon us. But this same contention has long been held by this Court to be untenable. In @ 19 U. S. 429, Chief Justice Marshall, answering the argument that Congress, when legislating for the District, "was reduced to a mere local legislature, whose laws could possess no obligation out of the ten miles square," said
"Congress is not a local legislature, but exercises this particular power, like all its other powers, in its high character, as the legislature of the Union. The American people thought it a necessary power, and they conferred it for their own benefit. Being so conferred, it carries with it all those incidental powers which are necessary to its complete and effectual execution."
In O'Donoghue v. United States, 289 U. S. 516, 289 U. S. 539, this Court approved a statement made by Circuit Judge Taft, later Chief Justice of this Court, speaking for himself and Judge (later Mr. Justice) Lurton, that
"The object of the grant of exclusive legislation over the district was therefore national in the highest sense, and the city organized under the grant became the city not of a state, not of a district, but of a nation. In the same article which granted the powers of exclusive legislation over its seat of government are conferred all the other great powers which make the nation, including the power to borrow money on the credit of the United States. He would be a strict constructionist indeed who should deny to congress the exercise of this latter power in furtherance of that of organizing and maintaining a proper local government at the seat of government. Each is for a national purpose, and the one may be used in aid of the other. . . ."
And, just prior to enactment of the statute now challenged on this ground, the Court of Appeals for the District itself, sitting en banc and relying on the foregoing authorities, had said that Congress "possesses full and unlimited jurisdiction to provide for the general welfare" of District citizens
"by any and every act of legislation which it may deem conducive to that end . . . ,
when it legislates for the District, Congress acts as a legislature of national character, exercising complete legislative control, as contrasted with the limited power of a state legislature, on the one hand, and as contrasted with the limited sovereignty which Congress exercises within the boundaries of the states, on the other."
Neild v. District of Columbia, 71 App.D.C. 306, 110 F.2d 246, 250.
We could not, of course, countenance any exercise of this plenary power either within or without the District if it were such as to draw into congressional control subjects over which there has been no delegation of power to the Federal Government. But, as we have pointed out, the power to make this defendant suable by a District citizen is not claimed to be outside of federal competence. If Congress has power to bring the defendant from his home all the way to a forum within the District, there seems little basis for denying it power to require him to meet the plaintiff part way in another forum. The practical issue here is whether, if defendant is to be suable at all by District citizens, he must be compelled to come to the courts of the District of Columbia or perhaps to a special statutory court sitting outside of it, or whether Congress may authorize the regular federal courts to entertain the suit. We see no justification for holding that Congress, in accomplishing an end admittedly within its power, is restricted to those means which are most cumbersome and burdensome to a defendant. Since it may provide the District citizen with a federal forum in which to sue the citizens of one of the states, it is hard to imagine a fairer or less prejudiced one than the regular federal courts sitting in the defendant's own state. To vest the jurisdiction in them, rather than in courts sitting in the District of Columbia, would seem less harsh to defendants and more consistent with the principles of venue that prevail in our system
under which defendants are generally suable in their home forums.
The Act before us, as we see it, is not a resort by Congress to these means to reach forbidden ends. Rather, Congress is reaching permissible ends by a choice of means which certainly are not expressly forbidden by the Constitution. No good reason is advanced for the Court to deny them by implication. In no matter should we pay more deference to the opinions of Congress than in its choice of instrumentalities to perform a function that is within its power. [Footnote 25] To put federally administered justice within the reach of District citizens, in claims against citizens of another state, is an object which Congress has a right to accomplish. Its own carefully considered view that it has the power, and that it is necessary and proper to utilize United States District Courts as means to this end, is entitled to great respect. Our own ideas as to the wisdom or desirability of such a statute or the constitutional provision authorizing it are totally irrelevant. Such a law of Congress should be stricken down
only on a clear showing that it transgresses constitutional limitations. We think no such showing has been made. [Footnote 26] The Act is valid.
The judgment is
Reversed.
Act of April 20, 1940, c. 117, 54 Stat. 143. For terms of the statute, see note 10
No opinion was filed by the District Court, which, in dismissing the complaint for lack of jurisdiction, relied upon its former decision and opinion in Feely v. Sidney S. Schupper Interstate Hauling System, Inc., 72 F.Supp. 663.
165 F.2d 531.
The Act had been upheld in Winkler v. Daniels, 43 F.Supp. 265; Glaeser v. Acacia Mutual Life Association, 55 F.Supp. 925, and in Duze v. Woolley, 72 F.Supp. 422 (with respect to Hawaii). It had been held unconstitutional in the District Court in the instant case; in Central States Cooperatives v. Watson Bros. Transportation Co., aff'd, 165 F.2d 392, and in McGarry v. City of Bethlehem, 45 F.Supp. 385; Behlert v. James Foundation of New York, 60 F.Supp. 706; Ostrow v. Samuel Brilliant Co., 66 F.Supp. 593; Wilson v. Guggenheim, 70 F.Supp. 417; Feely v. Sidney S. Schupper Interstate Hauling System, 72 F.Supp. 663; Willis v. Dennis, 72 F.Supp. 853, and in Mutual Ben. Health & Acc. Assn. v. Dailey, 75 F.Supp. 832.
The Act had been held invalid by the Court of Appeals for the Fourth Circuit in the instant case, 165 F.2d 531, with Judge Parker dissenting, and by the Court of Appeals for the Seventh Circuit in Central States Cooperatives v. Watson Bros. Transportation Co., 165 F.2d 392, with Judge Evans dissenting.
333 U.S. 860.
U.S.Const. Art. III, § 2, cl. 1.
§ 11 of the Act of Sept. 24, 1789, c. 20, 1 Stat. 73, 78.
Hepburn and Dundas v. Ellzey, 2 Cranch 445.
The effect of the Act was to amend 28 U.S.C. § 41(1) so that it read in pertinent part:
"The district courts shall have original jurisdiction as follows: of all suits of a civil nature at common law or in equity . . . where the matter in controversy exceeds, exclusive of interest and costs, the sum or value of $3,000 and . . . (b) Is between citizens of different States, or citizens of the District of Columbia, the Territory of Hawaii, or Alaska, and any State or Territory. . . ."
Act of June 25, 1948, c. 646, 62 Stat. 869, Pub.L. 773. 80th Cong., 2d Sess.
28 U.S.C. § 1332.
@ 17 U. S. 407.
U.S.Const. Art. III, § 2, cl. 1.
See note 8
@ 6 U. S. 453.
H.R.Rep. No.1756, 76th Cong., 3d Sess., p. 3. The Senate Judiciary Committee's report consists only of a recommendation that the bill (H.R.8822) be passed. Senate Report No.1399, 76th Cong., 3d Sess. Passage in each House was without discussion. 86 Cong.Rec. Pt. 3, p. 3015; 86 Cong.Rec. Pt. 4, p. 4286.
U.S.Const. Art. I, § 8, cl. 17.
U.S.Const. Art. I, § 8, cl. 18.
Act of March 3, 1887, c. 359, 24 Stat. 505.
This concurrent jurisdiction of the district courts has frequently been referred to in opinions of this Court with no indication that it presented any constitutional problem with respect to the jurisdiction of either the district courts or this Court. See, for example, Pope v. United States, 323 U. S. 1; United States v. Sherwood, 312 U. S. 584; United States v. Shaw, 309 U. S. 495; Williams v. United States, 289 U. S. 553; Nassau Smelting & Refining Works v. United States, 266 U. S. 101; United States v. Pfitsch, 256 U. S. 547; Tempel v. United States, 248 U. S. 121; United States v. Greathouse, 166 U. S. 601; United States v. Jones, 131 U. S. 1. The legislative basis for the grant of jurisdiction to the district courts is delineated in Bates Mfg. Co. v. United States, 303 U. S. 567.
The suggestion here that claims against the United States, adjudicated by the Court of Claims and by the district courts solely by virtue of the waiver of sovereign immunity and the jurisdiction granted under the Tucker Act, may be cases arising "under the laws of the United States" is both erroneous and self-defeating. The unanimous decision in the Williams case, 289 U. S. 553, holds clearly to the contrary, stating, at 289 U.S. 289 U. S. 577, that controversies to which the United States may by statute be made a party defendant "lie wholly outside the scope of the judicial power vested by article 3. . . ." And see Principality of Monaco v. Mississippi, 292 U. S. 313, 292 U. S. 321. Moreover, the Tucker Act simply opens those courts to plaintiffs already possessed of a cause of action. If that is sufficient to make the case one arising under the laws of the United States, the same is true of this suit and all others like it. No one urges that view of the present statute, nor could they. See note 23 and text.
The books are replete with authority on this point. For example, in Shoshone Mining Co. v. Rutter, 177 U. S. 505, it was said, at p. 177 U. S. 507:
"The suit must, in part at least, arise out of a controversy between the parties in regard to the operation and effect of the Constitution or laws upon the facts involved. . . ."
And at p. 177 U. S. 513:
". . . the mere fact that a suit is an adverse suit authorized by the statutes of Congress is not, in and of itself, sufficient to vest jurisdiction in the Federal courts."
And again, at p. 177 U. S. 507, it is considered
"well settled that a suit to enforce a right which takes its origin in the laws of the United States is not necessarily one arising under the Constitution or laws of the United States. . . ."
In Bankers' Mut. Casualty Co. v. Minneapolis, St. P. & S.S.M. R. Co., 192 U. S. 371 at p. 192 U. S. 384:
". . . suits, though involving the Constitution or laws of the United States, are not suits arising under the Constitution or laws where they do not turn on a controversy between the parties in regard to the operation of the Constitution or laws on the facts. . . ."
And at p. 192 U. S. 385:
"We repeat that the rule is settled that a case does not arise under the Constitution or laws of the United States unless it appears from plaintiff's own statement, in the outset, that some title, right, privilege, or immunity on which recovery depends will be defeated by one construction of the Constitution or laws of the United States, or sustained by the opposite construction."
In Louisville & Nashville R. Co. v. Mottley, 211 U. S. 149, 211 U. S. 152, allegations designed to establish that the case arises under the Constitution are said to be insufficient if they do not show that "the suit, that is, the plaintiff's original cause of action," does so arise.
No question has been raised here as to the source of this Court's appellate jurisdiction over such cases. Nor do we see how that issue could be raised without challenging our past and present exercise of jurisdiction over cases adjudicated in the district courts and in the Court of Claims, solely under the Tucker Act, see Pope v. United States, 323 U. S. 1, 323 U. S. 13-14, and see notes 21 22 and under the Federal Tort Claims Act, see Brooks v. United States, ante, p. 337 U. S. 49.
Chief Justice Marshall, in @ 17 U. S. 420-421, said:
"The result of the most careful and attentive consideration bestowed upon this [the 'necessary and proper'] clause is, that, if it does not enlarge, it cannot be construed to restrain, the powers of Congress, or to impair the right of the legislature to exercise its best judgment in the selection of measures to carry into execution the constitutional powers of the government. . . . We admit, as all must admit, that the powers of the government are limited, and that its limits are not to be transcended. But we think the sound construction of the constitution must allow to the national legislature that discretion, with respect to the means by which the powers it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it, in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional."
It would not be profitable to review the numerous cases in which, during the consideration of other problems, this Court has made statements concerning the nature and extent of Congress' power to legislate for the District of Columbia and its control over the jurisdiction of both constitutional and legislative courts. The issue now presented squarely for decision was not decided in any of them. We adhere to Chief Justice Marshall's admonition in @ 19 U. S. 399, that "Such expressions ought not to control the judgment in a subsequent suit when the very point is presented for decision."
MR. JUSTICE RUTLEDGE, with whom MR. JUSTICE MURPHY agrees, concurring.
I join in the Court's judgment. But I strongly dissent from the reasons assigned to support it in the opinion of MR. JUSTICE JACKSON.
While giving lip service to the venerable decision in Hepburn and Dundas v. Ellzey, 2 Cranch 445, and purporting to distinguish it, that opinion ignores nearly a century and a half of subsequent consistent construction. [Footnote 2/1] In all practical consequence, it would overrule that decision, with its later reaffirmations. Pertinently, it may be asked how and where are those decisions to operate, if not just in the situation presented by this case? And, if there is no other, would they not be effectively overruled?
What is far worse, and more important -- the manner in which this reversal would be made, if adhered to by a majority of the Court, would entangle every district court of the United States, for the first time, in all of the contradictions, complexities and subtleties which have
surrounded the courts of the District of Columbia in the maze woven by the "legislative court-constitutional court" controversy running through this Court's decisions concerning them. [Footnote 2/2]
In my opinion, it would be better to continue following what I conceive to be the original error of the Hepburn decision and its progeny than thus to ensnarl the general system of federal courts. Jurisdictional and doctrinal troubles enough we have concerning them, without adding others by ruling now that they have the origin and jurisdiction of "legislative" courts in addition to that of "constitutional" courts created under Article III, with which alone they heretofore have been held endowed.
Moreover, however this case may be decided, there is no real escape from deciding what the word "State" as used in Article III, § 2 of the Constitution means. For, if it is a limitation on Congress' power as to courts created under that Article, it is hard to see how it becomes no limitation when Congress decides to cast it off under some other Article, even one relating to its authority over the District of Columbia. If this may be done in the name of practical convenience and dual authority, or because Congress might find some other constitutional way to make citizens of the District suable elsewhere or to bring here for suit citizens from any part of the country, then what is a limitation imposed on the federal courts generally is none when Congress decides to disregard it by purporting to act under some other authorization.
The Constitution is not so self-contradictory. Nor are its limitations to be so easily evaded. The very essence of the problem is whether the Constitution meant to cut out from the diversity jurisdiction of courts created under Article III suits brought by or against citizens of the
District of Columbia. That question is not answered by saying in one breath that it did, and in the next that it did not.
I
Prior to enactment of the 1940 statute today considered, federal courts of the District of Columbia were the only federal courts which had jurisdiction to try nonfederal civil actions between citizens of the District and citizens of the several states. The doors of federal courts in every state, open to suits between parties of diverse state citizenship by virtue of Article III, § 2 (as implemented by continuous congressional enactment), were closed to citizens of the District of Columbia. The 1940 statute was Congress' first express attempt to remedy the inequality which has obtained over since Chief Justice Marshall, in Hepburn and Dundas v. Ellzey, supra, construed the first Judiciary Act to exclude citizens of the District of Columbia. Marshall's construction of the 1789 statute was founded on his conclusion that the comparable language of the diversity clause in Article III, § 2 -- "Citizens of different States" -- did not embrace citizens of the District.
Marshall's view of the 1789 Act, iterated in his later dictum, 14 U. S. 94; cf. 10 U. S. 336, has been consistently adhered to in judicial interpretation of later congressional grants of jurisdiction. [Footnote 2/3] And, by accretion, the rule of the Hepburn case has acquired the force of a considered determination that, within the meaning of Article III, § 2, "the District of Columbia is not a state," [Footnote 2/4] and its citizens are therefore not citizens of any state within that Article's meaning.
The opinion of MR. JUSTICE JACKSON in words "reaffirms" this view of the diversity clause. Nevertheless, faced with an explicit congressional command to extend jurisdiction in nonfederal cases to the citizens of the District of Columbia, it finds that Congress has power to add to the Article III jurisdiction of federal district courts such further jurisdiction as Congress may think "necessary and proper," Const., Art. I, § 8, cl. 18, to implement its power of "exclusive Legislation," Const., Art. I, § 8, cl. 17, over the District of Columbia, and thereby to escape from the limitations of Article III.
From this reasoning, I dissent. For I think that the Article III courts in the several states cannot be vested, by virtue of other provisions of the Constitution, with powers specifically denied them by the terms of Article III. If we accept the elementary doctrine that the words of Article III are not self-exercising grants of jurisdiction to the inferior federal courts, [Footnote 2/5] then I think those words must mark the limits of the power Congress may confer on the district courts in the several states. And I do not think we or Congress can override those limits through invocation of Article I without making the Constitution a self-contradicting instrument. If Marshall correctly read Article III as preventing Congress from unlocking
the courthouse door to citizens of the District, it seems past belief that Article I was designed to enable Congress to pick the lock. For the diversity jurisdiction here thus sustained is identical in all respects with the diversity jurisdiction thought to be closed to District citizens by Article III: it is justice administered in the same courtroom and under the supervision of the same judge; it is, presumptively, justice fashioned by the Federal Rules of Civil Procedure, and now under the aegis of Erie R. Co. v. Tompkins. [Footnote 2/6] The jurisdiction today thus upheld is not simply an expurgated version of a banned original; it is the real thing.
To circumvent the limits of Article III, it is said, after finding a contrary and overriding intent in Article I, that Article III district courts in the several states can also be vested with jurisdiction springing from Article I. The only express holding which conceivably could lend comfort to this doctrine of dual jurisdiction in this Court's conclusion in O'Donoghue v. United States, 289 U. S. 516, that certain courts of the District of Columbia theretofore deemed legislative courts created under Article I [Footnote 2/7] owe their jurisdiction to Article I and
Article III. With the merits of the O'Donoghue decision in holding that Article III barred salary reductions for judges of the courts in question we are not presently concerned. Suffice it to point out that the express language of the O'Donoghue decision negatives the view that federal courts in the several states share this hybrid heritage:
". . . Congress derives from the District clause distinct powers in respect of the constitutional courts of the District which Congress does not possess in respect of such courts outside the District. [Footnote 2/8]"
The limits of the O'Donoghue decision are only underscored by the dissenting view of Chief Justice Hughes and Justices Van Devanter and Cardozo that all District of Columbia courts are solely the creatures of Article I:
"As the courts of the District do not rest for their creation on section 1 of Article 3, that creation is not subject to any of the limitations of that provision. Nor would those limitations, if considered to be applicable, be susceptible of division so that some might be deemed obligatory and others might be ignored."
289 U.S. at 289 U. S. 552.
Comfort is sought to be drawn, however, from this Court's rationale in Williams v. United States, 289 U. S. 553, which, in sanctioning salary reductions for judges of the Court of Claims, held that that court did not derive its jurisdiction from Article III. That conclusion stemmed in part from the proposition that suits against the United States are not "Controversies to which the United States shall be a Party" within the meaning of Article III, § 2. Hence, it is said, the permissible inference is that the long established concurrent jurisdiction of district courts over claims against the United States
is likewise not derived from Article III. [Footnote 2/9] We need not today determine the nature of district court jurisdiction of suits against the United States. Suffice it to say that, if such suits are not "Controversies to which the United States shall be a Party," they are presumptively within the purview of the federal question jurisdiction to which MR. JUSTICE FRANKFURTER's opinion directs our attention -- the Article III, § 2 grant of power over "Cases . . . arising under . . . the Laws of the United States." This is at least the conventional view of district court jurisdiction under the Tucker Act. 2 Moore, Federal Practice (2d ed., 1948) 1633.
But, in any event, to rely on Williams as dispositive of the present case is to rely on a bending reed: Williams and O'Donoghue were companion cases, argued together and decided together, and the opinions were written by the same Justice. Accordingly, what was said in one must be read in the light of what was said in the other. O'Donoghue, as has been observed, expressly rejected the proposition today announced -- that Congress can vest in constitutional courts outside the District of Columbia jurisdiction derived from the District clause of Article I.
But O'Donoghue went further, and, in so doing, undermined any implication in Williams that Article III courts outside the District could be vested with any form of non-Article III jurisdiction when it pointed out that no courts of the District of Columbia could be granted "administrative and other jurisdiction" if,
"in creating and defining the jurisdiction of the courts of the District, Congress were limited to article 3, as it is in dealing with the other federal courts. . . ."
289 U.S. at 289 U. S. 546. Moreover, the Justices who dissented from the O'Donoghue rationale of dual jurisdiction expressed no disagreement with the Williams opinion. In these circumstances, certainly
no more strength can be drawn from the language of a case upholding salary reductions for one group of judges than from the holding in a case striking down salary reductions for another group of judges.
Nor is there merit in the view that the bankruptcy jurisdiction of district courts does not stem from Article III. Of course, it is true that Article I is the source of congressional power over bankruptcy, as it is the source of congressional power over interstate commerce, taxation, the coining of money, and other powers confided by the states to the exclusive exercise of the national legislature. But, as MR. JUSTICE FRANKFURTER's opinion makes clear, federal court adjudication of disputes arising pursuant to bankruptcy and other legislation is conventional federal question jurisdiction. And no case cited in any of today's opinions remotely suggests the contrary.
Furthermore, no case cited supports the view that jurisdiction over a suit to collect estate assets under § 23(b) of the Bankruptcy Act, brought by the trustee in a district court with the "consent" of the defendant, is a departure from the general rule and is derived from Article I alone. To be sure, although this Court indicated a contrary view in the early case of Lovell v. Newman & Son, 227 U. S. 412, 227 U. S. 426, Chief Justice Hughes' opinion in Schumacher v. Beeler, 293 U. S. 367, made it perfectly clear that district courts can, with the consent of the proposed defendant, entertain trustee suits under § 23(b) which the bankrupt, but for the Bankruptcy Act, could not have prosecuted in a federal court absent diversity or some independent federal question "arising under . . . the Laws of the United States." The opinion stated:
"Conflicting views have been held of the meaning of the provision for consent in § 23(b). In one view, the provision relates merely to venue, that is, only to a consent to the 'local jurisdiction.' . . .
The opposing view was set forth by the court below in Toledo Fence & Post Co. v. Lyons, 290 F.6d 7, 645, and that decisions was followed in the instant case. . . . It proceeds upon the ground that the Congress had power to permit suits by trustees in bankruptcy in the federal courts against adverse claimants, regardless of diversity of citizenship, and that, by section 23(b), the Congress intended that the federal courts should have that jurisdiction in cases where the defendant gave consent, and, without that consent, in cases which fell within the stated exceptions."
"We think that the latter view is the correct one."
293 U.S. at 293 U. S. 371.
Chief Justice Hughes' opinion does not intimate that this "consent jurisdiction" arises solely from Article I. Quite the contrary, the opinion by Judge Denison outlining the "view" which the Chief Justice described as "the correct one" expressly stated that such suits are a segment of the district court's federal-question jurisdiction:
"The trustee must allege and prove that valid proceedings were taken under the Bankruptcy Act, leading to a valid adjudication, whereby title passed, and that, by valid proceedings under the act, he was chosen as trustee. If the proof fails in any of these particulars, the suit fails. The suit is one step in the collection of assets in the execution of the Bankruptcy Act. That such a case would be one "arising under the laws of the United States" we think is the result of well settled principles. It will be observed that, under the constitutional limitations of the federal judicial power (article 3, sec. 2), and with exceptions not to this question important, Congress has no power to confer jurisdiction on the inferior federal courts excepting as to suits which do so arise, and every decision which upholds the right to sue in the
federal court by one who merely acquires title through the operation of a federal law is therefore, by necessary implication, a holding that such a suit arises under'" federal laws." Toledo Fence & Post Co. v. Lyons, 290 F.6d 7, 641, and cf. Beeler v. Schumacher, 71 F.2d 831, 833."
There seems no reason, therefore, to suppose that this Court, in holding "correct" the view that district courts have jurisdiction over a trustee suit which could not have been brought by the bankrupt, rejected the explicit Article III basis of that jurisdiction.
And neither reliance on Gully v. First National Bank, 299 U. S. 109; Puerto Rico v. Russell & Co., 288 U. S. 476, and related cases, nor the suggestion that "a suit arises under the law that creates the cause of action," American Well Works Co. v. Layne & Bowler Co., 241 U. S. 257, 241 U. S. 260, compels the conclusion that Congress could not and did not classify § 23(b) suits to collect estate assets as federal question cases arising under the Bankruptcy Act. As this Court has had occasion to observe, a "cause of action' may mean one thing for one purpose and something different for another." United States v. Memphis Cotton Oil Co., 288 U. S. 62, 288 U. S. 67-68, and see Gully v. First National Bank, supra, at 117. Similarly, as students of federal jurisdiction have taken pains to point out, the "substantial identity of the words" in the constitutional and statutory grants of federal question jurisdiction, "does not, of course, require, on that score alone, an identical interpretation." Shulman and Jaegerman, Some Jurisdictional Limitations on Federal Procedure, 45 Yale L.J. 393, 405, n. 47 (1936). Confusion of the two is a natural, but not an insurmountable, hazard. The Gully and Puerto Rico cases were concerned with the general statutory grant to district courts of jurisdiction over federal questions; they were not concerned with the constitutional grant of jurisdiction, nor with the specific
statutory grant of jurisdiction found in the Bankruptcy Act and approved in Schumacher v. Beeler, supra.
It has never heretofore been doubted that the constitutional grant of power is broader than the general federal question jurisdiction which Congress has from time to time thought to confer on district courts by statute. In one of the federal land grant cases relied on in MR. JUSTICE JACKSON's opinion, this Court had occasion to make this distinction clear:
"By the Constitution (art. 3, § 2), the judicial power of the United States extends to 'all cases, in law and equity, arising under this Constitution, the laws of the United States' and to controversies 'between citizens of different states.' By article 4, § 3, cl. 2, Congress is given 'power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States.' Under these clauses, Congress might doubtless provide that any controversy of a judicial nature arising in or growing out of the disposal of the public lands should be litigated only in the courts of the United States. The question therefore is not one of the power of Congress, but of its intent. It has so constructed the judicial system of the United States that the great bulk of litigation respecting rights of property, although those rights may in their inception go back to some law of the United States, is in fact carried on in the courts of the several states."
Shoshone Mining Company v. Rutter, 177 U. S. 505, 177 U. S. 506.
Indeed, were we to adopt the view that the Gully rule is a test applicable to the constitutional phrase, we would effectively repudiate Chief Justice Marshall's conclusion in 22 U. S. 485, and by Mr. Justice Cardozo in Gully v. First National Bank, supra,@ 299 U.S. at 299 U. S. 114.
In short, Congress has at no time conferred on federal district courts original jurisdiction over all federal questions, preferring to leave trial of many and perhaps most such questions to state adjudication, subject to the ultimate review of this Court. But exceptions to the congressional policy of limitation there have been, and one of these is the trustee suit under § 23(b). 2 Moore, Federal Practice (2d ed., 1948) 1633.
Thus, I see no warrant for gymnastic expansion of the jurisdiction of federal courts outside the District. At least as to these latter courts sitting in the states, I have thought it plain that Article III described and defined their "judicial Power," and that, where
"power proposed to be conferred . . . was not judicial power within the meaning of the Constitution . . . , [it] was therefore unconstitutional, and could not lawfully be exercised by the courts. [Footnote 2/10] "
If Article III were no longer to serve as the criterion of district court jurisdiction, I should be at a loss to understand what tasks, within the constitutional competence of Congress, might not be assigned to district courts. At all events, intimations that district courts could only undertake the determination of "justiciable" controversies seem inappropriate, since the very clause of Article I today relied on has long been regarded as the source of the "legislative," Keller v. Potomac Electric Power Co., 261 U. S. 428, and "administrative," Postum Cereal Co. v. California Fig Nut Co., 272 U. S. 693, powers of the courts of the District of Columbia. Moreover, the suggestion that the Constitutional Convention recognized a constructive limitation of federal jurisdiction to "cases of a Judiciary nature," II Farrand, Records of the Federal Convention 430, merely lays bare the ultimate fallacy underlying rejection of the boundaries of Article III. For the constructive limitation referred to in the Convention debates is a limitation imposed by Article III, and the opinion of MR. JUSTICE JACKSON, by hypothesis, denies that Article III expresses the full measure of power which can be delegated to federal district courts. If district courts are -- as I agree they are -- confined to "cases of a Judiciary nature," then too they are confined to cases "between citizens of different States," except insofar as other Article III provisions expand the potential grant of jurisdiction. For -- to borrow the words of the O'Donoghue dissent -- the limitations of Article III,
"if considered to be applicable, [would not] be susceptible of division so that some might be deemed obligatory and others might be ignored."
289 U.S. at 289 U. S. 552.
In view of the rationale adopted by MR. JUSTICE JACKSON's opinion, I do not understand the necessity for its examination of the limits of the diversity clause of Article III. That opinion has, however, made clear the view that the diversity clause excludes citizens of the
District of Columbia, although where that view may now be applied, it does not point out. If I concurred in that conception of the diversity clause, I would vote to affirm the judgment of the Court of Appeals.
II
However, nothing but naked precedent, the great age of the Hepburn ruling, and the prestige of Marshall's name, supports such a result. It is doubtful whether anyone could be found who now would write into the Constitution such an unjust and discriminatory exclusion of District citizens from the federal courts. All of the reasons of justice, convenience, and practicality which have been set forth for allowing District citizens a furtive access to federal courts point to the conclusion that they should enter freely and fully as other citizens and even aliens do.
Precedent, of course, is not lightly to be disregarded, even in the greater fluidity of decision which the process of constitutional adjudication concededly affords. [Footnote 2/11] And
Marshall's sponsorship in such matters always is weighty. But when long experience has disclosed the fallacy of a ruling, time has shown its injustice, and nothing remains but a technicality the only effect of which is to perpetuate inequity, hardship and wrong, those are the circumstances which this Court repeatedly has said call for reexamination of prior decisions. If those conditions are fulfilled in any case, they are in this one.
The Hepburn decision was made before time, through later decisions here, had destroyed its basic premise, and at the beginning of Marshall's judicial career, when he had hardly started upon his great work of expounding the Constitution. The very brevity of the opinion and its groundings, especially in their ambiguity, show that the master hand which later made his work immortal faltered. [Footnote 2/12]
The sole reason Marshall assigned for the decision was "a conviction that the members of the American confederacy only are the states contemplated in the constitution," a conviction resulting, as he said, from an examination of the use of that word in the charter to determine "whether Columbia is a state in the sense of that instrument." 2 Cranch at 6 U. S. 452.
"When the same term which has been used plainly in this limited sense [as designating a member of the union] in the articles respecting the legislative and executive departments, is also employed in that which respects the judicial department, it must be understood as retaining the sense originally given to it."
Ibid.
This narrow and literal reading was grounded exclusively on three constitutional provisions: the requirements that members of the House of Representatives be chosen by the people of the several states; that the Senate shall be composed of two Senators from each state, and that each state "shall appoint, for the election of the executive," the specified number of electors; all, be it noted, provisions relating to the organization and structure of the political departments of the government, not to the civil rights of citizens as such. Put to one side were other provisions advanced in argument as showing "that the term state is sometimes used in its more enlarged sense" on the ground that "they do not prove what was to be shown by them." Ibid.
Whether or not this answer was adequate at the time, [Footnote 2/13]
our Constitution today would be very different from what it is if such a narrow and literal construction of each of its terms had been transmuted into an inflexible rule of constitutional interpretation. It is to be remembered, as bearing on the very issue before us, that the Sixth Amendment's guarantee of "an impartial jury of the State . . . wherein the crime shall have been committed" extends to criminal prosecutions in the Nation's capital. [Footnote 2/14] Similarly, the word "citizens" has a broader
meaning in Article III, § 2, where it now includes corporations, [Footnote 2/15] than it has in the privileges and immunities clause of Article IV, § 2, [Footnote 2/16] or in the like clause of the Fourteenth Amendment. [Footnote 2/17] Instances might, but need not, be multiplied.
In construing the diversity clause, we are faced with the apparent fact that the Framers gave no deliberate consideration one way or another to the diversity litigation of citizens of the District of Columbia. And indeed, since the District was not in existence when the
Constitution was drafted, it seems in no way surprising that the Framers, after conferring on Congress' plenary power over the future federal capital, made no express provision for litigating outside the boundaries of a hypothetical city conjectured controversies between unborn citizens and their unknown neighbors. Under these circumstances, I cannot accept the proposition that absence of affirmative inclusion is, here, tantamount to deliberate exclusion.
If exclusion of District citizens is not compelled by the language of the diversity clause, it likewise cannot be spelled out by inference from the historic purposes of that clause. We have, needless to say, no concern with the merits of diversity jurisdiction; [Footnote 2/18] nor need we resolve scholarly dispute over the substantiality of those local prejudices which, when the Constitution was drafted, the grant of diversity jurisdiction was designed to nullify. [Footnote 2/19] Our only duty is to determine the scope of the jurisdictional grant, and we must bow to congressional determination of whether federal adjudication of local issues does more good than harm. But, in resolving the immediate
issue, we should not blink the fact that, whatever the need for federal jurisdiction over suits between litigant citizens of the several states, the same need equally compels the safeguards of federal trial for suits brought by citizens of the District of Columbia against citizens of the several states. Conversely, if we assume that today's ruling tacitly validates suits brought by state citizens against citizens of the District of Columbia, it would seem the plaintiff citizen of a state is as deserving of a federal forum when suing a District defendant as when suing a defendant in a neighbor state.
Marshall's sole premise of decision in the Hepburn case has failed, under the stress of time and later decision, as a test of constitutional construction. Key words like "state," "citizen," and "person" do not always and invariably mean the same thing. [Footnote 2/20] His literal application disregarded any possible distinction between the purely political clauses and those affecting civil rights of citizens, a distinction later to receive recognition.
Moreover, Marshall himself recognized the incongruity of the decision:
"It is true that, as citizens of the United States, and of that particular district which is subject to the jurisdiction of Congress, it is extraordinary that the courts of the United States, which are open to aliens, and to the citizens of every state in the union, should be closed upon them."
But, he added, "this is a subject for legislative, not for judicial, consideration." 2 Cranch at 6 U. S. 453.
With all this we may well agree, with one reservation. In spite of subsequent contrary interpretation and Marshall's own identification of the statutory word "state" with the same word in the Constitution, we cannot be unreservedly sure that the last-quoted sentence referred to the process of constitutional amendment, rather than
congressional reconsideration. If the former had been the intent, it seems likely it would have been stated in words not so characteristic of the latter process. The Court was construing the statute, [Footnote 2/21] which made no explicit inclusion of citizens of the District. Whether, if it had done so, the Court's ruling would have been the same, or, if a later act had sought to include District citizens, it would have been held unconstitutional, we can only speculate.
But I do not rest on this ambiguity, more especially in view of the later decisions clearly accepting the Hepburn decision as one of constitutional import. On the other hand, the later and general repudiation of the decision's narrow and literal rule for construing the Constitution, in which Marshall's own part was not small, has cut from beneath the Hepburn case its only grounding, and, with it, in my judgment, the anomaly in result which the ruling always has been. It is perhaps unnecessary to go so far in criticizing the decision as was done by a judge who long afterwards bowed to it. [Footnote 2/22] But the time has come
when the hope he expressed for removing this highly unjust discrimination from a group of our citizens larger than the population of several states of the Union should be realized.
III
Pragmatically stated, perhaps, the problem is not of earth-shaking proportions. For, by present hypothesis, federal court disposition of diversity suits must be in accord with local law in all matters of substance. But, symbolically, the matter is of very considerable importance. Reasonable men may differ perhaps over whether or, more appropriately, to what extent, citizens of the District should have political status and equality with their fellow citizens. But, with reference to their civil rights, especially in such a matter as equal access to the federal courts, none now can be found to defend discrimination against them save strictly on the ground of precedent.
I cannot believe that the Framers intended to impose so purposeless and indefensible a discrimination, although they may have been guilty of understandable oversight in not providing explicitly against it. Despite its great age and subsequent acceptance, I think the Hepburn decision was ill considered and wrongly decided. Nothing hangs on it now except the continuance or removal of a gross and wholly anomalous inequality applied against a substantial group of American citizens not in relation to their substantive rights, but in respect to the forums available for their determination. This Court has not
hesitated to override even longstanding decisions when much more by way of substantial change was involved and the action taken was much less clearly justified than in this case, a most pertinent instance being Erie R. Co. v. Tompkins, supra.
That course should be followed here. It should be followed directly, not deviously. Although I agree with the Court's judgment, I think it overrules the Hepburn decision in all practical effect. With that I am in accord. But I am not in accord with the proposed extension of "legislative" jurisdiction under Article I for the first time to the federal district courts outside the District of Columbia organized pursuant to Article III, and the consequent impairment of the latter Article's limitations upon judicial power, and I would dissent from such a holding even more strongly than I would from a decision today reaffirming the Hepburn ruling. That extension, in my opinion, would be the most important part of today's decision, were it accepted by a majority of the Court. It is a dangerous doctrine which would return to plague both the district courts and ourselves in the future, to what extent it is impossible to say. The O'Donoghue and Williams decisions would then take on an importance they have never before had, and were never considered likely to attain.
See notes 337 U. S. 3 and 337 U. S. 4 and text infra.
See text infra and authorities cited at notes 337 U. S. 7-9.
Barney v. Baltimore, 6 Wall. 280; Hooe v. Jamieson, 166 U. S. 395; Hooe v. Werner, 166 U. S. 399.
Hooe v. Jamieson, 166 U. S. 395, 166 U. S. 397; cf. Downes v. Bidwell, 182 U. S. 244, 182 U. S. 270.
"Of all the Courts which the United States may, under their general powers, constitute, one only, the Supreme Court, possesses jurisdiction derived immediately from the constitution, and of which the legislative power cannot deprive it."
11 U. S. 9, n. 1. But cf. 14 U. S. 328-331. For recent reaffirmation of the prevailing view, see Kline v. Burke Construction Co., 260 U. S. 226, 260 U. S. 233-234. And see the comprehensive survey of congressional power over the jurisdiction of federal courts prepared for the Judiciary Committee of the House of Representatives by MR. JUSTICE FRANKFURTER before his accession to this bench. H.R.Rep. No.669, 72d Cong., 1st Sess. 12-14.
304 U. S. 304 U.S. 64. If it were assumed that the Constitution requires the application of local law in traditional diversity suits (cf. id. at 304 U. S. 77-80; Black & White Taxicab & Transfer Co. v. Brown & Yellow Taxicab & Transfer Co., 276 U. S. 518, dissenting opinion at 276 U. S. 533; but cf. Cohen v. Beneficial Industrial Loan Corp., post, at 337 U. S. 541, dissenting opinion at 337 U. S. 557), it may be wondered whether that requirement would also govern the rationale of jurisdiction today advanced: under this rationale, Congress might well find in Article I power to authorize articulation of a body of federal substantive law for the decision of diversity cases involving citizens of the District of Columbia.
Federal Radio Commission v. General Electric Co., 281 U. S. 464; Postum Cereal Co. v. California Fig Nut Co., 272 U. S. 693; Keller v. Potomac Electric Power Co., 261 U. S. 428. Cf. Ex parte Bakelite Corp., 279 U. S. 438, 279 U. S. 450; Federal Radio Commission v. Nelson Bros. Bond & Mortgage Co., 289 U. S. 266, 289 U. S. 274-276; United States v. Jones, 336 U. S. 641, 336 U. S. 652, n. 12.
O'Donoghue v. United States, 289 U. S. 516, 289 U. S. 551. Cf. Pitts v. Peak, 60 App.D.C.195, 197, 50 F.2d 485.
See Comment, 43 Yale L.J. 316, 319 (1933).
Note by Chief Justice Taney inserted by order of the Court after the opinion in 54 U. S. 53, summarizing the Court's conclusions in Hayburn's Case, 2 Dall. 409, and United States v. Yale Todd,@ decided without opinion by this Court on February 17, 1794, and apparently unreported.
Cf. Screws v. United States, 325 U. S. 91, 325 U. S. 112-113. See the trenchant discussion by Mr. Justice Brandeis of the lesser impact of stare decisis in the realm of constitutional construction, Burnet v. Coronado Oil & Gas Co., 285 U. S. 393, 285 U. S. 405-410 (dissenting opinion), and the views of MR. JUSTICE FRANKFURTER dissenting in Commissioner v. Estate of Church, 335 U. S. 632, 335 U. S. 676-677. Instances in which this Court has overruled prior constitutional determinations are catalogued in Burnet v. Coronado Oil & Gas Co., supra, at 285 U. S. 407, n. 2, 285 U. S. 409, n. 4, and in Helvering v. Griffiths, 318 U. S. 371, 318 U. S. 401, n. 52; compare Mr. Justice Brandeis' compilations in Burnet v. Coronado Oil & Gas Co., supra, at 285 U. S. 406, n. 1, and in his dissenting opinion in Washington v. W. C. Dawson & Co., 264 U. S. 219, 264 U. S. 238, n. 21. Chief Justice Stone, speaking for the Court on the death of Mr. Justice Brandeis, took occasion to note the prime role played by the latter in liberating the Court from mechanical adherence to precedent where constitutional issues are at stake:
"He never lost sight of the fact that the Constitution is primarily a great charter of government, and often repeated Marshall's words: 'it is a constitution we are expounding' 'intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs.' Hence, its provisions were to be read not with the narrow literalism of a municipal code or a penal statute, but so that its high purposes should illumine every sentence and phrase of the document, and be given effect as part of a harmonious framework of government. Notwithstanding the doctrine of stare decisis, judicial interpretations of the Constitution, since they were beyond legislative correction, could not be taken as the final word. They were open to reconsideration in the light of new experience and greater knowledge and wisdom."
317 U.S. XLII, XLVII.
The Hepburn case was not the only one in those earlier years where the master touch was lacking. Cf. 9 U. S. Deveaux, 5 Cranch 61; Hope Insurance Co. v. Boardman, 5 Cranch 57; Maryland Insurance Co. v. Woods, 6 Cranch 29; Maryland Ins. Co. v. Wood, 7 Cranch 402; McGovney, A Supreme Court Fiction, 56 Harv.L.Rev. 853, 863-885 (1943). See particularly the discussion at 876-883. By positing the capacity of a corporation to sue or be sued under the diversity clause on the citizenship of its shareholders, the Deveaux decision opened the way for corporations ultimately to be brought within the diversity jurisdiction, but only by the long and tortuous evolution of the law through the stages first of rebuttable and finally of conclusive presumption (now most often contrary to the fact) that all the shareholders are citizens of the state of incorporation. See Louisville, C. & C. R. Co. v. Letson, 2 How. 497.
Counsel for the plaintiffs had made, among others, two different, though closely related, arguments. One was that "state," as used in the diversity clause, should be given what Marshall characterized as "the signification attached to it by writers on the law of nations," a political entity in a broad and general sense. To this argument, his answer was obviously appropriate. But, in view of other constitutional provisions relied upon in the argument, 2 Cranch 446-448, 450 [argument of counsel -- omitted], it seems at least questionable that the answer met the other contention -- namely, that
"those territories which are under the exclusive government of the United States are to be considered, in some respects, as included in the term 'states,' as used in the Constitution."
Id. at 446 [argument of counsel -- omitted].
The Court's initial determination that District residents were entitled to a jury trial in criminal cases, Callan v. Wilson, 127 U. S. 540, rested in large measure on the more inclusive language of Article III, § 2:
"The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury, and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may be Law have directed."
The Court in the Callan case rejected the Government's argument that Article III, § 2, permits Congress to dispense with a jury when the crime takes place in the District, rather than in a state. But Article III does not seem to have been the sole basis of decision, for the Court said, 127 U.S. at 127 U. S. 550:
"In Reynolds v. United States, 98 U. S. 145, 98 U. S. 154, it was taken for granted that the Sixth Amendment of the Constitution secured to the people of the territories the right of trial by jury in criminal prosecutions. . . . We cannot think that the people of this District have, in that regard, less rights than those accorded to the people of the territories of the United States."
See District of Columbia v. Clawans, 300 U. S. 617, 300 U. S. 624; Capital Traction Co. v. Hof, 174 U. S. 1, 174 U. S. 5; cf. Thompson v. Utah, 170 U. S. 343, 170 U. S. 348-349.
But, though it be true that "The Sixth Amendment was not needed to require trial by jury in cases of crimes," United States v. Wood, 299 U. S. 123, 299 U. S. 142, nevertheless the recognized right of District residents to an "impartial jury" is conferred by the force of the Sixth Amendment. See Frazier v. United States, 335 U. S. 497, 335 U. S. 498, 335 U. S. 514. Nor is this distinction a mere form of words: in United States v. Wood, supra, at 299 U. S. 142-143, Chief Justice Hughes, in weighing the impartiality of a District of Columbia jury, noted the Article III guarantee of a jury trial and then observed:
"The Sixth Amendment provided further assurances. It added 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, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence."
Thus, it has been uniformly assumed that, in criminal prosecutions, a resident of the District of Columbia is possessed of Sixth Amendment rights "to a speedy . . . trial," United States v. McWilliams, 69 F.Supp. 812, aff'd, 163 F.2d 695; "to be informed of the nature and cause of the accusation," cf. Johnson v. United States, 225 U. S. 405, 225 U. S. 409, 225 U. S. 411; "to be confronted with the witnesses against him," Curtis v. Rives, 123 F.2d 936, 937; Jordon v. Bondy, 114 F.2d 599, 602, "to have compulsory process for obtaining Witnesses in his favor," ibid.; "and to have the Assistance of Counsel for his defence," Noble v. Eicher, 79 U.S.App.D.C. 217; 143 F.2d 1001; see Williams v. Huff, 142 F.2d 91, 146 F.2d 867.
See 337 U. S. supra. Compare 43 U. S. C. & C. R. Co. v. Letson, 2 How. 497, with 9 U. S. Deveaux, 5 Cranch 61.
@ 75 U. S. 177. It is to be noted, however, that Hamilton's 83th Federalist expressly justified the grant of diversity jurisdiction as effectively implementing the guaranties of the privileges and immunities clause of Article IV.
Hague v. CIO, 307 U. S. 496, 307 U. S. 514; cf. id. at 307 U. S. 527; Grosjean v. American Press Co., 297 U. S. 233, 297 U. S. 244; Orient Insurance Company v. Daggs, 172 U. S. 557, 172 U. S. 561.
For contrasting views prior to Erie R. Co. v. Tompkins, 304 U. S. 64, compare Yntema, The Jurisdiction of the Federal Courts in Controversies between Citizens of Different States, 19 A.B.A.J. 71 (1933), and Yntema and Jaffin, Preliminary Analysis of Concurrent Jurisdiction, 79 U.Pa.L.Rev. 869 (1931), with Frankfurter, A Note on Diversity Jurisdiction -- In Reply to Professor Yntema, 79 U.Pa.L.Rev. 1097 (1931), and Frankfurter, Distribution of Judicial Power between United States and State Courts, 13 Corn.L.Q. 499, 520-530 (1928). For post-Erie analyses, see Shulman, The Demise of Swift v. Tyson, 47 Yale L.J. 1336 (1938); Clark, State Law in the Federal Courts: The Brooding Omnipresence of Erie R. Co. v. Tompkins, 55 Yale L.J. 267 (1946).
See 337 U. S. and see also Friendly, the Historic Basis of Diversity Jurisdiction, 41 Harv.L.Rev. 483 (1928); Warren, New Light on the History of the Federal Judiciary Act of 1789, 37 Harv.L.Rev. 49, 81-90 (1923); Frank, Historical Bases of the Federal Judicial System, 13 L. & Contemp. Prob. 3, 22-28 (1948).
Cf. 337 U. S. supra, and text.
The arguments for the defendant were two -- one statutory, the other constitutional. They were stated as follows:
"Even if the constitution of the United States authorizes a more enlarged jurisdiction than the judiciary act of 1789 has given, yet the court can take no jurisdiction which is not given by the act. . . ."
"This is not a case between citizens of different states, within the meaning of the constitution."
2 Cranch at 449-450 [argument of counsel -- omitted].
After noting that the Hepburn decision had been extended by New Orleans v. Winter, 1 Wheat. 91, to territories and their citizens, the opinion in Watson v. Brooks, 13 F.5d 0, stated, at 543-544:
"But it is very doubtful if this ruling would now be made if the question was one of first impression, and it is to be hoped it may yet be reviewed and overthrown."
"By it, and upon a narrow and technical construction of the word 'state,' unsupported by any argument worthy of the able and distinguished judge who announced the opinion of the court, the large and growing population of American citizens resident in the District of Columbia and the eight territories of the United States are deprived of the privilege accorded to all other American citizens, as well as aliens, of going into the national courts when obliged to assert or defend their legal rights away from home. Indeed, in the language of the court in Hepburn and Dundas v. Ellzey, supra, they may well say:"
"It is extraordinary that the courts of the United States, which are open to aliens, and to the citizens of every state in the Union, should be closed upon them."
"But so long as this ruling remains in force, the judgment of this court must be governed by it."
MR. CHIEF JUSTICE VINSON, with whom MR. JUSTICE DOUGLAS joins, dissenting.
While I agree with the views expressed by MR. JUSTICE FRANKFURTER and MR. JUSTICE RUTLEDGE which relate to the power of Congress under Art. I of the Constitution to vest federal district courts with jurisdiction over suits between citizens of States and the District of Columbia, and with the views of MR. JUSTICE FRANKFURTER and MR. JUSTICE JACKSON as to the proper interpretation of the word "States" in the diversity clause of Art. III, I
am constrained to state my views individually because of the importance of these questions to the administration of the federal court system.
I
The question whether Congress has the power to extend the diversity jurisdiction of the federal district courts to citizens of the District of Columbia by virtue of its authority over the District under Art. I of the Constitution depends, in turn, upon whether the enumeration in Art. III of the cases to which the judicial power of the United States shall extend defines the outer limits of that power, or is merely a listing of the types of jurisdiction with which Congress may invest federal courts without invoking any of the specific powers granted that body by other Articles of the Constitution. It has long been settled that inferior federal courts receive no powers directly from the Constitution, but only such authority as is vested in them by the Congress. @ 4 U. S. 187, the question is whether the enumeration of cases in Art. III, § 2 prescribes a maximum of power, or performs only the very limited office mentioned above. [Footnote 3/2]
The theory that § 2 of Art. III is merely a supplement to the powers specifically granted Congress by the Constitution
is not, however, accepted at face value even by those who urge it. For they still would require that a case or controversy be presented. We are told that,
"Of course, there are limits to the nature of duties which Congress may impose on the constitutional courts vested with the federal judicial power . . . , [but] this statute . . . does not authorize or require either the district courts or this Court to participate in any legislative, administrative, political, or other nonjudicial function or to render any advisory opinion."
337 U.S. 590.
But as my brothers FRANKFURTER and RUTLEDGE have pointed out, if Art. III contains merely a grant of power to Congress, there is no more reason to find any limitation in the fact that the judicial power extends only to cases and controversies than in the specific enumeration of the kinds of cases or controversies to which it shall extend. The fundamental error in this position, as I see it, is the failure to distinguish between two entirely different principles embodied in Art. III, as elsewhere in the Constitution, both of which were repeatedly adverted to in the Constitutional Convention and have since been followed by this Court without substantial deviation.
The first of these principles is that the three branches of government established by the Constitution are of coordinate rank, and that none may encroach upon the powers and functions entrusted to the others by that instrument. This principle found expression in the requirement of Art. III that the judicial power shall extend only to cases and controversies. Of equal importance, however, was the second principle, that the Constitution contains a grant of power by the states to the federal government, and that all powers not specifically granted were reserved to the states or to the people. [Footnote 3/3] The powers
granted the federal judiciary were spelled out with care and precision in Art. III by a delineation of the kinds of cases to which the judicial power could be extended.
The first principle is not now under attack, but proper perspective in viewing the second requires some examination of its origin and history. The framers of the Constitution were presented with, and rejected, proposals which would have vested nonjudicial powers in the national judiciary. Charles Pinckney of South Carolina proposed, for example, that
"Each branch of the Legislature, as well as the Supreme Executive, shall have authority to require the opinions of the supreme Judicial Court upon important questions of law, and upon solemn occasions. [Footnote 3/4]"
Early in the Convention, however, the principle that the courts to be established should have jurisdiction only over cases became fixed. Thus it was that, when the proposal was made on the floor of the Convention that the words, "arising under this Constitution" be inserted before "the laws of the United States" in what is now Art. III, § 2, Madison's objection that it was
"going too far to extend the jurisdiction of the Court generally to cases arising Under the Constitution, & whether it ought not to be limited to cases of a Judiciary Nature"
was met by the answer that it was, in his own words, "generally supposed that the jurisdiction given was constructively limited to cases of a Judiciary nature." [Footnote 3/5]
Clear as this principle is, however, it was attacked in this Court on precisely the same grounds now asserted to sustain the diversity jurisdiction here in question. In Keller v. Potomac Electric Power Co., 261 U. S. 428, 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 435 [argument of counsel -- omitted]. 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 2 U. S. 410; United States v. Ferreira, 13 How. 40, and Gordon v. United States, 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 regul