Rassmussen v. United States, 197 U.S. 516 (1905)

MR. JUSTICE WHITE delivered the opinion of the Court.

The plaintiff in error was indicted for violating § 127 of the Alaska Code, prohibiting the keeping of a disreputable house, and punishing the offense by a fine or imprisonment in the county jail.

As stated in the bill of exceptions, when the case was called, the court announced "that the cause would be tried before a jury composed of six jurors," in accordance with section 171 of the Code for Alaska adopted by Congress, wherein, among other things, it was provided as follows (31 Stat. 321, 359): "That hereafter in trials for misdemeanors, six persons shall constitute a legal jury." To this announcement by the court an exception was duly preserved. A jury of six persons was then impaneled, when the objection was renewed and a demand made for a common law jury, which was refused, and an exception was again taken.

To a verdict and judgment of conviction this, writ is prosecuted directly to this Court, reliance for a reversal being had on the violation of the Constitution alleged to have resulted from the trial of the case by a jury of six persons, and upon other errors of law which, it is asserted, the court committed in the course of the trial.

At the threshold of the case lies the constitutional question whether Congress had power to deprive one accused in Alaska of a misdemeanor of trial by a common law jury -- that is to say, whether the provision of the act of Congress in question was repugnant to the Sixth Amendment to the Constitution of the United States.

At the bar, the government did not deny that offenses of the character of the one here prosecuted could only be tried by a common law jury if the Sixth Amendment governed. The government, moreover, did not dispute the obvious and fundamental truth that the Constitution of the United States is dominant where applicable. The validity of the provision in question is therefore sought to be sustained upon the proposition that the Sixth Amendment to the Constitution did not apply to Congress in legislating for Alaska. And this rests upon two contentions, which we proceed separately to consider.

1. Alaska was not incorporated into the United States, and therefore the Sixth Amendment did not control Congress in legislating for Alaska.

If the premise -- that is, the status of Alaska -- be conceded, the conclusion deduced from it is established by the previous rulings of this Court. In Dorr v. United States, 195 U.S. 138, the question was whether the Sixth Amendment was controlling upon Congress in legislating for the Philippine Islands. Applying the principles which caused a majority of the judges who concurred in Downes v. Bidwell, 182 U.S. 244, to think that the uniformity clause of the Constitution was inapplicable to Porto Rico, and following the ruling announced in Hawaii v. Mankichi, 190 U.S. 197, it was decided that, whilst, by the treaty with Spain, the Philippine Islands had come under the sovereignty of the United States and were subject to its control as a dependency or possession, those islands had not been incorporated into the United States as a part thereof, and therefore Congress, in legislating concerning them, was subject only to the provisions of the Constitution applicable to territory occupying that relation. The power to acquire territory without incorporating it into the United States as an integral part thereof, as we have said, was sustained upon the reasoning expounded in the opinion of three, if not of four, of the judges who concurred in the judgment in Downes v. Bidwell, that reasoning being in effect adopted in the Dorr case as the basis of the ruling there made, the Court saying (p. 143):

Until Congress shall see fit to incorporate territory ceded by treaty into the United States, we regard it as settled by that decision [Downes v. Bidwell] that the territory is to be governed under the power existing in Congress to make laws for such territories, and subject to such constitutional restrictions upon the powers of that body as are applicable to the situation.

And in view of the status of the Philippine Islands, it was decided that the Sixth Amendment was not applicable to those islands, and therefore Congress, when it legislated concerning them, was not controlled by the provisions of that amendment. It would serve no useful purpose to reexpress the reasons supporting this conclusion, and we content ourselves with quoting the summing up made by the court in the opinion in the Dorr case, as follows (p. 149):

We conclude that the power to govern territory, implied in the right to acquire it, and given to Congress in the Constitution in Article IV, § 3, to whatever other limitations it may be subject, the extent of which must be decided as questions arise, does not require that body to enact for ceded territory, not made a part of the United States by congressional action, a system of laws which shall include the right of trial by jury, and that the Constitution does not, without legislation and of its own force, carry such right to territory so situated.

We are brought, then, to determine whether Alaska has been incorporated into the United States as a part thereof, or is simply held, as the Philippine Islands are held, under the sovereignty of the United States as a possession or dependency.

Concerning the test to be applied to determine whether, in a particular case acquired territory has been incorporated into and forms a part of the United States, we do not deem it necessary to review the general subject, again contenting ourselves by quoting a brief passage from the opinion in Dorr v. United States, summing up the reasons which controlled in determining that the Philippine Islands were not incorporated, viz., (p. 143):

If the treatymaking power could incorporate territory into the United States without congressional action, it is apparent that the treaty with Spain, ceding the Philippines to the United States, carefully refrained from so doing; for it is expressly provided that (Article IX) "the civil rights and political status of the native inhabitants of the territories hereby ceded to the United States shall be determined by the Congress." In this language it is clear that it was the intention of the framers of the treaty to reserve to Congress, so far as it could be constitutionally done, a free hand in dealing with these newly acquired possessions.

The legislation upon the subject shows that not only has Congress hitherto refrained from incorporating the Philippines into the United States, but in the act of 1902, providing for temporary civil government, 32 Stat. 691, there is express provision that section eighteen hundred and ninety-one of the Revised Statutes of 1878 shall not apply to the Philippine Islands.

This brings us to consider the treaty by which Alaska was acquired, and the action of Congress concerning that acquisition, for the purpose of ascertaining whether, within the criteria referred to in Downes v. Bidwell and adopted and applied in Dorr v. United States, Alaska was incorporated into the United States.

The treaty concerning Alaska, instead of exhibiting, as did the treaty respecting the Philippine Islands, the determination to reserve the question of the status of the acquired territory for ulterior action by Congress, manifested a contrary intention, since it is therein expressly declared, in Article 3, that:

The inhabitants of the ceded territory . . . shall be admitted to the enjoyment of all the rights, advantages, and immunities of citizens of the United States, and shall be maintained and protected in the free enjoyment of their liberty, property and religion.

This declaration, although somewhat changed in phraseology, is the equivalent, as pointed out in Downes v. Bidwell, of the formula, employed from the beginning to express the purpose to incorporate acquired territory into the United States -- especially in the absence of other provisions showing an intention to the contrary. And it was doubtless this fact, conjoined with the subsequent legislation of Congress, which led to the following statement concerning Alaska made in the opinion of three, if not four, of the judges who concurred in the judgment of affirmance in Downes v. Bidwell (p. 335):

Without referring in detail to the acquisition from Russia of Alaska, it suffices to say that that treaty also contained provisions for incorporation, and was acted upon exactly in accord with the practical construction applied in the case of the acquisition from Mexico, as just stated.

Presumably it was also a consideration of the character of the rights conferred by the treaty by which Alaska was acquired, and the legislation of Congress concerning that territory, to which we shall hereafter refer, which caused Mr. Justice Gray, in his concurring opinion in Downes v. Bidwell, to say (p. 345):

The cases now before the Court do not touch the authority of the United States over the territories, in the strict and technical sense, being those which lie within the United States, as bounded by the Atlantic and Pacific Oceans, the Dominion of Canada, and the Republic of Mexico, and the Territories of Alaska and Hawaii, but they relate to territory in the broader sense, acquired by the United States by war with a foreign state.

That Congress, shortly following the adoption of the treaty with Russia, clearly contemplated the incorporation of Alaska into the United States as a part thereof we think plainly results from the Act of July 20, 1868, concerning internal revenue taxation, c. 186, section 107, 15 Stat. 125, 167, and the Act of July 27, 1868, c. 273, extending the laws of the United States relating to customs, commerce, and navigation over Alaska, and establishing a collection district therein. 15 Stat. 240. And this is fortified by subsequent action of Congress, which it is unnecessary to refer to.

Indeed, both before and since the decision in Downes v. Bidwell, the status of Alaska as an incorporated territory was and has been recognized by the action and decisions of this Court. By the sixth section of the Judiciary Act of March 3, 1891, 26 Stat. 826, it was made the duty of this Court to assign the several territories of the United States to particular circuits, and in execution of this law this Court, by an order promulgated May 11, 1891, assigned the Territory of Alaska to the Ninth Judicial Circuit. Steamer Coquitlam v. United States, 163 U.S. 346. That case was a suit in admiralty, brought by the United States in the District Court of Alaska for the forfeiture of the steamer Coquitlam because of a violation of the revenue laws of the United States. From a decree rendered in favor of the United States, an appeal was prosecuted to the Circuit Court of Appeals for the Ninth Circuit. The United States challenged the jurisdiction of the circuit court of appeals upon the grounds: (1) that the District Court of Alaska was not a district court within the meaning of the sixth section of the Judiciary Act of 1891, and was not a district court belonging to the Ninth Circuit; (2) that the District Court of Alaska was not the supreme court of a territory within the meaning of the order of this Court. The circuit court of appeals certified the question of jurisdiction. After fully reviewing the legislation of Congress relating to Alaska and stating the general appellate power of the circuit courts of appeal over judgments and decrees of the district and circuit courts, it was decided that, under the authority granted to the circuit courts of appeal by the fifteenth section of the Judiciary Act of March 3, 1891, to review judgments of the Supreme Court of any territory assigned to such circuit by this Court, the Circuit Court of Appeals of the Ninth Circuit possessed appellate jurisdiction over the cause. In the course of the opinion, it was declared (p. 352):

Alaska is one of the territories of the United States. It was so designated in that order [referring to the order of this Court assigning to the Ninth Circuit], and has always been so regarded. And the court established by the act of 1884 is the court of last resort within the limits of that territory. It is therefore in every substantial sense the supreme court of that territory.

In Binns v. United States, 194 U.S. 486, the question was this: the penal code for Alaska imposed certain license taxes. The plaintiff in error was convicted for not paying such a tax, and the case was brought to this Court on the contention that the act of Congress levying the tax was repugnant to the clause of the Constitution requiring uniformity throughout the United States, as licenses of the character complained of were imposed only in Alaska. After referring to the statements concerning Alaska contained in the concurring opinions in Downes v. Bidwell, the one written by Mr. Justice Gray and the other by MR. JUSTICE WHITE, and after approvingly citing the passage from the Coquitlam case above referred to, the Court declared it to be settled that Alaska had been undoubtedly incorporated into the United States, and hence conceded that the license complained of was invalid if levied by Congress under the general grant in the Constitution of the power of taxation. The legislation in question was, however, sustained on the exceptional ground that Congress had therein merely exerted its authority as a local legislature for Alaska.

It follows, then, from the text of the treaty by which Alaska was acquired, from the action of Congress thereunder, and the reiterated decisions of this Court that the proposition that Alaska is not incorporated into and a part of the United States is devoid of merit, and therefore the doctrine settled as to unincorporated territory is inapposite, and lends no support to the contention that Congress, in legislating for Alaska, had authority to violate the express commands of the Sixth Amendment.

This brings us to the second proposition, which is --

2. That even if Alaska was incorporated into the United States, as it was not an organized territory, therefore the provisions of the Sixth Amendment were not controlling on Congress when legislating for Alaska.

We do not stop to demonstrate from original considerations the unsoundness of this contention and its irreconcilable conflict with the essential principles upon which our constitutional system of government rests. Nor do we think it is required to point out the inconsistency which would arise between various provisions of the Constitution if the proposition was admitted, or the extreme extension, on the one hand, and the undue limitation on the other, of the powers of Congress which would be occasioned by conceding it. This is said because, in our opinion, the unsoundness of the proposition is conclusively established by a long line of decisions. Webster v. Reid, 11 How. 437; Reynolds v. United States, 98 U.S. 154; Callan v. Wilson, 127 U.S. 540; American Publishing Co. v. Fisher, 166 U.S. 464; Springville v. Thomas, 166 U.S. 707; Thompson v. Utah, 170 U.S. 345; Capital Traction Co. v. Hof, 174 U.S. 1; Black v. Jackson, 177 U.S. 349.

The argument by which the decisive force of the cases just cited is sought to be escaped is that, as when the cases were decided there was legislation of Congress extending the Constitution to the District of Columbia or to the particular territory to which a case may have related, therefore the decisions must be taken to have proceeded alone upon the statutes, and not upon the inherent application of the provisions of the Fifth, Sixth and Seventh Amendments to the District of Columbia or to an incorporated territory. And, upon the assumption that the cases are distinguishable from the present one upon the basis just stated, the argument proceeds to insist that the Sixth Amendment does not apply to the Territory of Alaska, because section 1891 of the Revised Statutes only extends the Constitution to the organized territories, in which, it is urged, Alaska is not embraced.

Whilst the premise as to the existence of legislation declaring the extension of the Constitution to the territories with which the cases were respectively concerned is well founded, the conclusion drawn from that fact is not justified. Without attempting to examine in detail the opinions in the various cases, in our judgment, it clearly results from them that they substantially rested upon the proposition that, where territory was a part of the United States, the inhabitants thereof were entitled to the guaranties of the Fifth, Sixth, and Seventh Amendments, and that the act or acts of Congress purporting to extend the Constitution were considered as declaratory merely of a result which existed independently by the inherent operation of the Constitution. It is true that, in some of the opinions, both the application of the Constitution and the statutory provisions declaring such application were referred to, but in others no reference to such statutes was made, and the cases proceeded upon a line of reasoning leaving room for no other view than that the conclusion of the Court was rested upon the self-operative application of the Constitution. Springville v. Thomas, 166 U.S. 707; Thompson v. Utah, 170 U.S. 343; Capital Traction Co. v. Hof, 174 U.S. 1; Black v. Jackson, 177 U.S. 349.

And this result of the cases will be made clear by a brief reference to some of the opinions. In Thompson v. Utah, considering a law of the State of Utah, which provided that a jury in a criminal cause should consist of only eight persons, the statute was held to be ex post facto and void in its application to felonies committed before the territory became a state,

because, in respect of such crimes, the Constitution of the United States gave the accused at the time of the commission of his offense the right to be tried by a jury of twelve persons, and made it impossible to deprive him of his liberty except by the unanimous verdict of such a jury.

In Springville v. Thomas, it was contended that the Territorial Legislature of Utah was empowered by Congress, in the organic act of the territory, to dispense with unanimity of the jurors in rendering a verdict in a civil case. The Court said (p. 708):

In our opinion, the Seventh Amendment secured unanimity in finding a verdict as an essential feature of trial by jury in common law cases, and the act of Congress could not impart the power to change the constitutional rule, and could not be treated as attempting to do so.

Again, in Capital Traction Co. v. Hof, 174 U.S. 1, no reference whatever being made to the statute of February 21, 1871, extending the provisions of the Constitution to the District of Columbia (15 Stat. 419), it was declared (p. 5):

It is beyond doubt at the present day that the provisions of the Constitution of the United States securing the right of trial by jury, whether in civil or criminal cases, are applicable to the District of Columbia.

And in Black v. Jackson, 177 U.S. 349, speaking of a law of the Territory of Oklahoma, it was said (p. 363):

And it also fails to recognize the provisions of the Seventh Amendment securing the right of trial by jury in "suits at common law" where the value in controversy exceeds twenty dollars. That amendment, so far as it secures the right of trial by jury, applies to judicial proceedings in the territories of the United States. Webster v. Reid, 11 How. 437, 460; American Publishing Co. v. Fisher, 166 U.S. 464, 466; Springville v. Thomas, 166 U.S. 707. So that a court of a territory authorized, as Oklahoma was, to pass laws not inconsistent with the Constitution of the United States, 26 Stat. 81, 84, c. 182, could not proceed in a "common law" action as if it were a suit in equity, and determine by mandatory injunction rights for the protection or enforcement of which there was a plain and adequate remedy at law according to the established distinctions between law and equity.

As it conclusively results from the foregoing considerations that the Sixth Amendment to the Constitution was applicable to Alaska, and as of course, being applicable, it was controlling upon Congress in legislating for Alaska, it follows that the provision of the act of Congress under consideration, depriving persons accused of a misdemeanor in Alaska of a right to trial by a common law jury, was repugnant to the Constitution and void. Having disposed of the constitutional question, we deem it unnecessary to review the other alleged errors.

The judgment must therefore be reversed, and the case remanded, with directions to set aside the verdict and grant a new trial.

And it is so ordered.