After Alaska achieved statehood, these suits to enjoin
enforcement of a statute of the State on the ground that it
conflicted with applicable federal law were instituted in the
District Court for Alaska, which, by the Constitution of the new
State, and by state and federal statutes, was designated the
successor of the former Territorial District Court in the interim
until the organization of the new state courts and the Federal
District Court for the District of Alaska. The District Court for
Alaska held the statute constitutional and entered orders denying
the injunctions and dismissing the complaints. Notices of direct
appeals to this Court were filed after the Justices of the new
Alaska Supreme Court had been designated, but before that Court was
in actual operation.
Held:
1. The District Court for Alaska was the "highest court of a
State in which a decision could be had," and the appeals are within
the jurisdiction of this Court under 28 U.S. C. § 1257(2). Pp.
363 U. S.
557-560.
2. Since the question of the constitutionality of the Alaska
statute raises the issue of its justification under the so-called
police power and is entangled with questions of state law which the
Supreme Court of Alaska might construe so as to avoid conflict with
federal law, this Court refrains at this stage from deciding the
issues presented on the merits of these appeals so as to afford the
Supreme Court of Alaska an opportunity to rule on the questions
presented. Pp.
363 U. S.
561-562.
3. The cases are retained on the docket of this Court pending
further proceedings or a further appeal after the decision of the
Supreme Court of Alaska, and the stays granted are continued until
final disposition of the cases. Pp.
363 U. S.
562-563.
18 Alaska ___,
174 F.
Supp. 500, decision reserved and appeals held on docket pending
consideration by the Supreme Court of Alaska.
Page 363 U. S. 556
MR. JUSTICE FRANKFURTER delivered the opinion of the Court.
These consolidated cases were commenced on June 22 and 24, 1959,
in the interim District Court for Alaska, by complaints seeking
permanent injunctions against threatened enforcement by the new
State of Alaska, its Governor, and other agents, of an Alaska
statute (Alaska Laws 1959, c. 17, as amended, Alaska Laws 1959, c.
95) making it a criminal offense to fish with traps. The statute
was assailed on the ground that it was in conflict with applicable
federal law. On July 2, 1959, orders were entered denying the
injunctions, dismissing the complaints with prejudice, and denying
an injunction pending appeal to this Court.
174 F.
Supp. 500. On July 11, 1959, MR. JUSTICE BRENNAN, acting in his
capacity as a circuit justice, granted appellants' application for
an injunction pending final disposition of their future appeals to
this Court. His opinion noted the existence of substantial
questions, both as to our jurisdiction and the merits. 80 S. Ct.
33. The notices of appeal were filed
Page 363 U. S. 557
on August 6, 1959; on December 7, 1959, we postponed further
consideration of the question of jurisdiction to the hearing of the
cases on the merits. 361 U.S. 911.
If the orders rendered on July 2, 1959, were those of the
"highest court of a State in which a decision could be had," the
appeals are within our jurisdiction under 28 U.S.C. § 1257(2),
since the court below sustained a statute of the State of Alaska
against a claim of unconstitutionality under the United States
Constitution. The jurisdictional problem arises out of the
enactments governing Alaska's accession to statehood, specifically
in relation to the Constitution of the new State and to the state
and federal laws governing the termination of the former
territorial courts and their displacement by a new state judicial
system and a Federal District Court for the District of Alaska. The
State Constitution, which took effect "immediately upon the
admission of Alaska into the Union as a state" (Art. XV, § 25) on
January 3, 1959, provided for a Supreme Court, to "be the highest
court of the State, with final appellate jurisdiction," a superior
court, and such other courts as the legislature may provide. Art.
IV, §§ 1, 2. Article XV, § 17, provides that, in the transitional
period until the new courts are organized, "the judicial system
shall remain as constituted on the date of admission . . . ," and
that,
"[w]hen the state courts are organized, new actions shall be
commenced and filed therein, and all causes, other than those under
the jurisdiction of the United States, pending in the courts
existing on the date of admission, shall be transferred to the
proper state court as though commenced, filed, or lodged in those
courts in the first instance, except as otherwise provided by
law."
The Alaska Statehood Act, 72 Stat. 339, which also became fully
effective on January 3, 1959, in §§ 13-17, makes similar provision
for the eventual disposition of business pending in the territorial
district court upon the
Page 363 U. S. 558
organization of the new District Court for the District of
Alaska. However, it too provides, in § 18, that "the United States
District Court for the Territory of Alaska shall continue to
function as heretofore" for three years, or until the President
proclaims that the new District Court "is prepared to assume the
functions imposed upon it." In June, 1959, when these actions were
commenced, and on July 2, 1959, when decision below was rendered,
neither new federal nor state courts were in operation.
The first question presented is whether the interim Alaskan
District Court was the "court of a State" in deciding these cases.
Sections 12 to 18 of the Statehood Act, 72 Stat. 339, make it plain
that the interim court was not intended to be the newly created
United States District Court for the District of Alaska, 28 U.S.C.
§ 81A; otherwise, the nature of the court, whether state or
federal, is not explicitly set forth. It is apparent, however, that
the court is, to a significant degree, the creature of two
sovereigns acting cooperatively to accomplish the joint purpose of
avoiding an interregnum in judicial administration in the
transitional period. The termination of the existence of the
interim court is governed by federal law, Statehood Act § 18; but
the termination of its general jurisdiction over state law matters,
insofar as it is dependent on state consent, is governed by state
law, Alaska Laws 1959, c. 50, § 31(2), which also provides for the
accelerated organization of separate Alaska courts should the
interim court be terminated before they are ready. Alaska Laws
1959, c. 50, § 32(4), amended by Alaska Laws 1959, c. 151, § 1.
To determine our jurisdiction, we need not engage in abstract
speculation as to the function of the interim court in cases not
before us. Whether the court can serve as a federal court, and the
permissible scope of its powers if it may so serve,
cf.
National Mutual Ins. Co. v. Tidewater Transfer Co.,
337 U. S. 582;
Benner v.
Porter,
Page 363 U. S. 559
9 How. 235, are perplexing questions, decision of which should
not be avoidably made. It is apparent that the legislature of
Alaska vested the judicial power of the State in the interim
District Court for the time being, that the district judge in this
case explicitly deemed himself to be exercising such power, and
that, in light of the express consent of the United States, he
properly did so.
Benner v. Porter, supra. It follows that
the District Court sat as a "court of a State" to decide these
cases.
The question remains whether the interim court was also the
"highest court" of Alaska within the meaning of 28 U.S.C. § 1257.
At the time of the filing of the notice of this appeal on August 6,
1959, the latest time at which jurisdiction could properly be
determined, no new Alaska state court was in actual operation,
although, on July 29, the Justices of the Court were designated by
the Governor. The contention that the interim court was not the
highest court of Alaska at that time rests upon this latter fact,
and the terms of Alaska Laws 1959, c. 151, § 1, amending Alaska
Laws 1959, c. 50, § 32, which amendment provides that, in the event
that
"a court of competent jurisdiction, by final judgment, declares
that the United States Court of Appeals for the Ninth Circuit lacks
jurisdiction to hear appeals from the District Court of the
District of Alaska, the Judicial Council shall forthwith meet and
submit to the Governor the names of the persons nominated as
justices of the supreme court and appeals from the District Court
of the District of Alaska may be made to the State Supreme
Court."
Because the Ninth Circuit had ruled against its appellate
jurisdiction over the interim court on June 16, 1959, six days
before this action was commenced,
Parker v. McCarrey, 268
F.2d 907, it is urged that this provision, preserving appeals from
the District Court to the Supreme Court of the State until the
creation of that court, requires the conclusion that, at least
after July 29, when the Justices
Page 363 U. S. 560
were appointed, appellate review was sufficiently guaranteed to
make the Supreme Court, and not the District Court, the highest
court of Alaska in which a decision in the instant case could be
rendered.
The question thus raised is not free from doubt. Viewing the
cases as of August 6, when the notices of appeal were filed, it is
fairly arguable that the preservation effected by Alaska Laws 1959,
c. 151, § 1, of the right to appeal to the Supreme Court of Alaska
constituted the interim court as a lower court of Alaska within the
intent of 28 U.S.C. § 1257, to await the completion of the State's
adjudicatory process as a prerequisite to adjudication here. Yet,
were the promise of an appeal, however indefinitely postponed, to
be taken as sufficient to bar our jurisdiction under § 1257, its
equally obvious purpose to allow substantial constitutional
questions to be timely brought here as of right would be
frustrated. Although these cases were decided below on July 2,
1959, the date set by Alaska statute for full organization of the
state courts was not until January 3, 1962, Alaska Laws 1959, c.
50, §§ 31 and 32(4). If no other fact were present, a potential
delay of two and one-half years before the organization of a court
to hear the preserved appeal would, in itself, counsel a
construction against denial of our jurisdiction. Here, however, two
additional facts must be weighed: (1) the Justices of the Supreme
Court were actually appointed on July 29, in pursuance of a
direction to accelerate the organization of the court; and (2) the
effective promulgation of the rules of the court (accomplished on
October 5, 1959) and appointment of a clerk were in their hands.
Alaska Laws 1959, c. 50, § 32(3). While, in light of these facts,
the question is exceedingly nice, we do not think that the
assurance of a timely appeal to a court not yet functioning was
sufficiently definite when the appeals were here filed to
constitute a bar to our jurisdiction under § 1257(2).
Page 363 U. S. 561
The interim court sustained the validity of the Alaska statute
banning fishing with traps, Alaska Laws 1959, c. 17, as amended by
Alaska Laws 1959, c. 95, against the claim of overriding federal
law under the Supremacy Clause, Const. art. 6, cl. 2. The claim was
based on an asserted conflict between the statute and regulations
of the Secretary of the Interior, 24 Fed.Reg. 2053-71, prohibiting
trap fishing in Alaskan waters generally, but excepting the
appellants, thereby granting them in effect a license to fish with
traps. The authority under which the Secretary purported to act is
the Act of 1924, 43 Stat. 464, as amended 48 U.S.C. §§ 221,
222.
A question not free from doubt, to put it at its lowest, thus
raised under the Supremacy Clause, is however entangled with
questions of construction of Alaskan state statutes, as well as of
the Alaska Statehood Act,
supra. Also in issue is the
effect of provisions of a compact between Alaska and the United
States which, it is urged, reserved exclusive regulatory powers
over Indian fishing rights to the United States, 72 Stat. 339, and
which, so construed, is assertedly unconstitutional because of its
failure to accord to Alaska participation in the Union on an "equal
footing" with the other States. The latter contention raises
related questions of federal power under the Commerce Clause, Art.
I, § 8. While we have before us questions of federal law that are
the concern of this Court, their consideration implicates
antecedent questions of local law turning in part on appreciation
of local economic and social considerations pertinent to the scope
of the so-called police power reserved to the State, upon which it
would be patently desirable to have the enlightenment which the now
fully formed Alaska Supreme Court presumably could furnish.
The original Act prohibiting traps was amended by Alaska Laws
1959, c. 95, § 1, so as to provide that it should not be construed
inconsistently with the compact, and if
Page 363 U. S. 562
the Alaska court determines as a matter of statutory
construction that the compact was designed to leave with the United
States, as to Indian fishing, the power it exercises under the
White Act, a constitutional question now appearing on the horizon
might disappear. Moreover, since questions are raised regarding the
status of these two Indian communities in relation to the authority
of the Secretary of the Interior, enlightenment drawn on the spot
by the Alaska Supreme Court may be material to any ultimate
determination of federal questions by this Court. Finally, since
the ultimate challenge to this legislation is that it must yield to
superior federal authority, an authoritative pronouncement by the
Supreme Court of Alaska with regard to the justifications of this
legislation under the so-called police power would have important
bearing on the question of the scope of the powers reserved to the
State.
Accordingly, consistently with the policies embodied in § 1257,
and in view of the peculiar facts of these cases, we refrain at
this stage from deciding the issues presented on the merits of
these appeals so as to afford the Alaska Supreme Court the
opportunity to rule on questions open to it for decision. We assume
that that court has jurisdiction in these cases. However, since it
alone can authoritatively decide such a question, we shall hold the
cases on our docket. After the Alaska Supreme Court's decision,
there may be further proceedings on these appeals; and if it
assumes jurisdiction, further appeals may be taken from its
judgments.
Cf. Lassiter v. Northampton County Board of
Elections, 360 U. S. 45.
Because of the nature of the asserted claim of federal right and
the irreparable nature of the injury which may flow from the
enforcement of these Alaska criminal statutes prior to a final
determination of the merits, we continue the stays granted by MR.
JUSTICE BRENNAN on July 11, 1959, until the final disposition of
the cases.
Page 363 U. S. 563
Having been advised that appeals in these cases are pending in
the Alaska Supreme Court, we direct appellants to pursue those
appeals for disposition not inconsistent with this opinion.
It is so ordered.
THE CHIEF JUSTICE, MR. JUSTICE BLACK and MR. JUSTICE DOUGLAS
dissent from remitting the parties to the Alaska Supreme Court, as
they are of the view that the controlling questions are federal
ones whose resolution is for this Court.
* Together with No. 327,
Organized Village of Kake et al. v.
Egan, Governor of Alaska, also on appeal from the same
Court.