66

In the opinion rendered by Justices White, Shiras, and McKenna and concurred in by Gray, in Downes v. Bidwell it is intimated that there may be unexpressed but inherent limitations upon the discretion of Congress in the establishment of governments for the Territories. After calling attention, in illustration of the plenitude of power of Congress in this respect, to the fact that Congress has estab lished in the District of Columbia "a local government totally devoid of local representation in the elective sense, administered solely by officers appointed by the President, Con gress, in which the District has no representative, in effect acting as the local legislature, the opinion nevertheless goes on to say: While, therefore, there is no express or implied limitation on Congress in exercising its power to create local governments for any or all of the Territories, by which that body is restrained from the widest latitude of discretion, it does not follow that there may not be inherent, although unexpressed, principles which are the basis of all free governments which cannot be with impunity transcended Chuch of Jesus Christ v. United States, 136 U. S. 1, 10 Sup. Ct. Rep. 792; 34 L. ed. 478]. But this does not suggest that every express limitation of the Constitution which is applicable has not force, but only signifies that even in cases where there is no direct command of the Constitution which applies, there may nevertheless be restrictions of so fundamental a nature that they cannot be transgressed, although not expressed in so many words in the Constitution."

It is difficult for the author to follow the reasoning of the Justices as set forth in these sentences. It would seem that there is some confusion of the authority of Congress to create governments for the Territory, and its power to legislate regarding the private civil rights of their inhabitants. The reference to the Mormon Church case shows this, for that case had nothing to do with the governing powers of Congress. These governing powers are absolute, without any express, implied, or "inherent" limitations.

7182 U. S. 244; 21 Sup. Ct. Rep. 770; 45 L. ed. 1088.

§ 161. Territorial Governments are Congressional Governments. The governments established in the Territories by Congress act as agencies of Congress, in the same sense that an administrative board acts as the agent of the law-making body that creates it. As such congressional agencies, the territorial governments are not considered to be parts of the General Government established or directly provided for by the Constitution. This point was early determined in American Insurance Co. v. Canter. In this case the point was raised that the territorial judges in Florida had been appointed for terms of but four years, whereas the Constitution provides that the judges of both the Supreme and inferior federal courts shall hold office during good behavior. In sustaining the validity of the territorial law in this matter, Marshall said: "These courts are not constitutional courts in which the judicial power conferred by the Constitution on the General Government can be deposited. They are incapable of receiving it. They are legislative courts, created in virtue of the general right of sovereignty which exists in the government, or in virtue of that clause which enables Congress to make all needful rules and regulations respecting the territory belonging to the United States. The jurisdiction with which they are invested is not a part of that judicial power which is defined in the third article of the Constitution, but was conferred by Congress in execution of those general powers which that body possesses over the Territories of the United States."

In Benner v. Porter the court say with reference to territorial governments: "They are legislative governments, and their courts legislative courts, Congress, in the exercise of its powers in the organization and government of the territories, combining the powers of both the federal and state authorities. There is but one system of government or of laws operating within their limits, as neither is subject to the constitutional provisions in respect to state and federal jurisdiction. They are not organized under the Constitution, nor subject to its complex distribution of the powers

81 Pet. 511; 7 L. ed. 242.

99 How. 235; 13 L. ed. 119.

of government, as the organic law; but are the creations, exclusively, of the legislative department, and subject to its supervision and control. Whether or not there are provisions in that instrument which extend to and act upon these territorial governments, it is not now material to examine." 10

In United States v. Pridgeon" it was held that the courts provided for the Territory of Oklahoma could be and had been authorized by Congress to sit as territorial courts to administer the laws of the Territory, and as courts of the United States to administer the laws of the United States.

In American Insurance Co. v. Canter12 and in Re Cooper13 it was held that the territorial courts may be granted admiralty jurisdiction. Also, though not "inferior" courts within the meaning of Section 1 of Article III of the Constitution, an ap peal may be granted from them to the Supreme Court. In United States v. Coe1 the court say: "As wherever the United States exercises the power of government, whether under specific grant, or through the dominion and sovereignty of plenary authority as over the Territories, that power includes the ultimate executive, legislative, and judicial power, it follows that the judicial action of all inferior courts established by Congress may in accordance with

10 In Clinton v. Englebrecht (13 Wall. 434; 20 L. ed. 659), the court say: "There is no Supreme Court of the United States, nor is there any district court of the United States in the sense of the Constitution, in the Territory of Utah. The judges are not appointed for the same terms, nor is the jurisdiction which they exercise part of the judicial power conferred by the Constitution of the General Government. The courts are the legislative courts of the Territories, created in virtue of that clause which authorizes Congress to make all needful rules and regulations respecting the Territories belonging to the United States."

To the same effect are the cases Hornbuckle v. Toombs, 18 Wall. 648, 21 L. ed. 966; Good v. Martin, 95 U. S. 90; 24 L. ed. 341; Reynolds v. United States, 98 U. S. 145; 25 L. ed. 244; The City of Panama, 101 U. S. 453; 25 L. ed. 1061; McAllister v. United States, 141 U. S. 174, 11 Sup. Ct. Rep. 949; 35 L. ed. 693; United States v. Pridgeon, 153 U. S. 48; 14 Sup. Ct. Rep. 746; 38 L. ed. 631, and United States v. Coe, 155 U. S. 76; 15 Sup. Ct. Rep 16: 39 L. ed. 76.

11 153 U. S. 48; 14 Sup. Ct. Rep. 746; 38 L. ed. 631.

121 Pet. 511; 7 L. ed. 242.

13 143 U. S. 472; 12 Sup. Ct. Rep. 453; 36 L. ed. 232.

14 155 U. S. 76; 15 Sup. Ct. Rep. 16; 39 L. ed. 76.

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 States' the court implies that is not de termined, 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,17 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 deelared the District of Columbia to be a part of the "United States" within the narrower constitutional meaning of the term, and as such Congress to be restrained when legislating for it, by the limitations applicáble generally to the United States as thus narrowly defined.3

2

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 legis‐ lature, 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.