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the Constitution be subjected to the appellate jurisdiction of the supreme judicial tribunal of the government. There has never been any question in regard to this as applied to territorial courts, and no reason can be perceived for applying a different rule to the adjudications of the court of private land claims over property in the Territories."

Whether or not the courts of the District of Columbia are "inferior" federal courts within the meaning of Section 1 of Article III of the Constitution has never been squarely settled. In James v. United States15 the court implies that is not determined, but does not in that case find it necessary to pass upon the point.

With reference to the District of Columbia it will be pointed out16 that Congress may not delegate to the local governing body legislative powers, but only authority to issue local municipal ordinances. This limitation does not apply with reference to the Territories; for whereas with regard to the District it is provided that Congress shall exercise exclusive legislation in all cases whatsoever, with regard to the Territories it is provided simply that Congress shall have the power "to dispose of and make all needful rules and regulation." There has thus been no question but that, under this grant of authority, Congress may provide for the establishment in the Territories of legislatures exercising full law-making powers, subject of course to the provisions of the Constitution and to subsisting or subsequent acts of Congress. Thus, for example, in Leitensdorfer v. Webb," with reference to the establishment of courts, the court declare: "It was, undoubtedly, within the competency of Congress either to define directly, by their own act, the jurisdiction of the courts created by them or to delegate the authority requisite for that purpose to the territorial governments."

15 202 U. S. 401; 26 Sup. Ct. Rep. 685; 50 L. ed. 1079.

16 Chapter XXVI.

17 20 How. 176; 15 L. ed. 891.

CHAPTER XXVI.

THE DISTRICT OF COLUMBIA.

§ 162. The Government of the District of Columbia.

The constitutional status of the district used as the seat of the Federal Government is almost the same as that of the Territories. Clause 17 of Section VIII of Article I of the Constitution empowers Congress "to exercise exclusive legislation in all cases whatsoever over such district (not exceeding- ten miles square) as may by cession of particular States, and the acceptance of Congress, become the seat of the Government of the United States."

In Loughborough v. Blake' Marshall declared the District of Columbia to be a part of the "United States" within the narrower constitutional meaning of the term,2 and as such Congress to be restrained when legislating for it, by the limitations applicable generally to the United States as thus narrowly defined.3

In Loughborough v. Blake the question was as to the power of Congress under a general law to levy and collect a direct tax in the District of Columbia. In denial of this power it was argued that while Congress might, when acting simply as a local legislature, levy and collect such a tax for local purposes, in the same manner that the legislature of a State might do, it might not do so under its general taxing power, for the reason that the Constitution provides that "Representatives and direct taxes shall be ap

15 Wh. 317; 5 L. ed. 98.

2 See, post, the discussion of the term in the Insular Cases.

3 This dictum of Marshall's was later held by the Supreme Court in Downes v. Bidwell (182 U. S. 244; 21 Sup. Ct. Rep. 770; 45 L. ed. 1088) to be an erroneous one; but these limitations upon the legislative power of Congress, though thus not immediately applicable have been by statute (16 Stat. at L. 42, act of July 21, 1871) extended over the District. Justice Brown, however, held that the District was entitled to these rights by reason of the fact that it was once a part of a State entitled to them, and that these rights having once attached, they were not, and could not, by cession of the District to the United States, be taken away.

45 Wh. 317; 5 L. ed. 98.

portioned among the States which may be included within the Union, according to their respective numbers." To this, however, Marshall replied: "The object of this regulation is, we think, to furnish a standard by which taxes are to be apportioned, not to exempt from their operation any part of our country. Had the intention been to exempt from taxation those who were not represented in Congress, that intention would have been expressed in direct terms." The grant to Congress of the “ power to levy and collect taxes, duties, imposts and excises," is, Marshall declared, a general grant without limitation as to place. "If this could be doubted," he continues, "the doubt is removed by the subsequent words which modify the grant. These words are 'but all duties, imposts and excises shall be uniform throughout the United States.' It will not be contended that the modification of the power extends to places to which the power itself does not extend. The power, then, to levy and collect duties, imposts, and excises, may be exercised and must be exercised throughout the United States. Does this term designate the whole, or any particular portion of the American empire? Certainly this question can admit of but one answer. It is the name given to our great republic, which is composed of States and Territories. The District of Columbia, or the Territory west of the Missouri is not less within the United States than Maryland or Pennsylvania; and it is not less necessary, on the principle of our Constitution, that uniformity in the imposition of imposts, duties, and excises, should be observed in the one than in the other."

Marshall, however, goes on to argue that while the general grant of power to lay and collect taxes is a general one and, therefore, authorizes Congress to include the District and Territories, within the operation of a general direct tax (in which case it must be apportioned in such District and Territories according to their respective populations) it does not follow that such areas must be included within the operation of such laws. "If . . . a direct tax be laid at all, it must be laid on every State conformably to the rule provided in the Constitution. Congress has clearly no power to exempt any State from its due share of the burden. But

this regulation is expressly confined to the States, and creates no necessity for extending the tax to the District or Territories."

In Hepburn v. Ellzey it was held by Marshall in a very brief opinion that a resident of the District of Columbia could not maintain an action in a federal circuit court on the ground that he was a citizen of another State, for the reason that the District is not a State. The Chief Justice said:

"On the part of the plaintiffs it has been urged that Columbia is a distinct political society; and is, therefore, 'a state' according to the definition of writers on general law.

"This is true. But as the act of Congress obviously uses the word 'state' in reference to that term as used in the constitution, it becomes necessary to inquire whether Columbia is a state in the sense of that instrument. The result of that examination is a conviction that the members of the American confederacy only are the states contemplated in the constitution.

"The house of representatives is to be composed of members chosen by the people of the several states; and each state shall have at least one representative.

"The senate of the United States shall be composed of two senators from each state.

"Each state shall appoint for the election of the executive, a number of electors equal to its whole number of senators and representatives.

"These clauses show that the word state is used in the constitution as designating a member of the union, and excludes from the term the signification attached to it by writers on the law of nations. When the same term which has been used plainly in this limited sense 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.

"Other passages from the constitution have been cited by the plaintiffs to show that the terin state is sometimes used in its more enlarged sense. But on examining the passages quoted, they do not prove what was to be shown by them.

52 Cr. 445; 2 L. ed. 332.

"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."

7

The District of Columbia though not a "State" in the sense in which that word is used in the constitutional clause which gives to the federal courts jurisdiction in suits between citizens of different States, it is declared in DeGeofroy v. Riggs, to be a State within the meaning of a treaty granting certain rights to aliens within the "States of the Union." That the District is a part of the United States internationally viewed was declared in Loughborough v. Blake, and this dictum has never been questioned.

But with reference to the form of government to be given the District, the authority of Congress is as absolute as we have seen it to be with regard to the Territories. "The Congress of the United States being empowered by the Constitution to exercise exclusive jurisdiction in all cases whatever,' over the seat of the National Government, has the entire control over the District of Columbia for every purpose of government, national or local. It may exercise within the District all legislative powers that the legislature of a State might exercise within a State."8

The Constitution provides that Congress shall "exercise exclusive legislation in all cases whatsoever" over such district as should, by cession of particular States, become the seat of government. To the author it would seem that the intent of those who framed this provision was that by it Congress should be granted authority exclusive of the State or States by which the district might be ceded. Congress has, however, since the beginning, acted upon the assumption that by this provision it is intended 6 Hepburn v. Ellzey, 2 Cr. 445; 2 L. ed. 332; Hooe v. Jamieson, 166 U. S. 395; 17 Sup. Ct. Rep. 596; 41 L. ed. 1049.

7133 U. S. 258; 10 Sup. Ct. Rep. 295; 33 L. ed. 642.

8 Capital Traction Co. v. Hof, 174 U. S. 1; 19 Sup. Ct. Rep. 580; 43 L. ed.

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