U.S. v. Wong Kim Ark, 169 U.S. 649 (1898)]

"This court [the U.S. Supreme Court] has no authority to interpolate a limitation that is neither expressed nor implied. Our duty is to execute the law, not to make it."

[U.S. v. Wong Kim Ark, 169 U.S. 649 (1898)]

U.S. v. Bink, 74 F.Supp. 603, D.C.Or. (1947)

"It is contended that Congress has reversed this current by permitting the Supreme Court to legislate upon it. Congress could not confer, nor could the Supreme Court exercise the authority to ordain and establish ‘inferior federal courts‘ and fix the jurisdiction thereof which power*615 was given to Congress alone by the Constitution. Suffice it to say Congress gave the Supreme Court ‘power to prescribe * * * rules of pleading, practice, and procedure * * * in criminal cases in district courts of the United States. ‘ 18 U.S.C.A. § 687. Unless the transfer of jurisdiction from one court to another is governed by rules of pleading, practice and procedure, the statute was of no avail.FN41"

[U.S. v. Bink, 74 F.Supp. 603, D.C.Or. (1947)]

Vieth v. Jubelirer 541 U.S. 267, 277-278, 124 S.Ct. 1769, 1776 - 1777 (U.S.Pa.,2004)

"The judicial Power" created by Article III, § 1, of the Constitution is not whatever judges choose to do, see Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 487, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982); cf. Grupo Mexicano de Desarrollo, S.A. v. Alliance Bond Fund, Inc., 527 U.S. 308, 332-333, 119 S.Ct. 1961, 144 L.Ed.2d 319 (1999), or even whatever Congress chooses to assign them, see Lujan v. Defenders of Wildlife, 504 U.S. 555, 576-577, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992); Chicago & Southern Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103, 110-114, 68 S.Ct. 431, 92 L.Ed. 568 (1948). It is the power to act in the manner traditional for English and American courts. One of the most obvious limitations imposed by that requirement is that judicial action must be governed by standard, by rule. Laws promulgated by the Legislative Branch can be inconsistent, illogical, and ad hoc; law pronounced by the courts must be principled, rational, and based upon reasoned distinctions."

[Vieth v. Jubelirer, 541 U.S. 267, 277-278, 124 S.Ct. 1769, 1776 - 1777 (U.S.Pa.,2004)]

Federal Radio Commission v. General Electric Co., 281 U.S. 464, 50 S.Ct. 389 (U.S.,1930)

Referring to the provisions for patent appeals this court said in Butterworth v. U. S., 112 U. S. 50, 60, 5 S. Ct. 25, 28 L. Ed. 656, that the function of the court thereunder was not that of exercising ordinary jurisdiction at law or in equity, but of taking a step in the statutory proceeding under the patent laws in aid of the Patent Office. And in Postum Cereal Company v. California Fig Nut Company, 272 U. S. 693, 698, 47 S. Ct. 284, 285, 71 L. Ed. 478, which related to a provision for a like appeal in a trade-mark proceeding, this court held: ‘The decision of the Court of Appeals under section 9 of the act of 1905 ^FN2 is not a judicial judgment. It is a mere administrative decision. It is merely an instruction to the Commissioner of Patents by a court which is made part of the machinery of the Patent Office for administrative purposes.’ Another case in point is Keller v. Potomac Electric Power Co., 261 U. S. 428, 442-444, 43 S. Ct. 445, 67 L. Ed. 731, which involved a statutory proceeding in the courts of the District of Columbia to revise an order of a commission fixing the valuation of the property of a public utility for future rate-making purposes. There this court held that the function assigned to the courts of the District in the statutory proceeding was not judicial in the sense of the Constitution, but was legislative and advisory, because it was that of instructing and aiding the commission in the exertion of power which was essentially legislative.

FN2. Now section 89, title 15, U. S. Code (15 USCA s 89). This jurisdiction also was transferred to the Court of Customs and Patent Appeals by the act cited in note 1.

In the cases just cited, as also in others, it is recognized that the courts of the District of Columbia are not created under the judiciary article of the Constitution but are legislative courts, and therefore that Congress may invest them with jurisdiction of appeals and proceedings such as have been just described.

But this court cannot be invested with jurisdiction of that character, whether for purposes of review or otherwise. It was brought into being by the judiciary article of the Constitution, is invested with judicial power only, and can have no jurisdiction other than of cases and controversies falling within the classes enumerated in that article. It cannot give decisions which are merely advisory; nor can it exercise or participate in the exercise of functions which are essentially legislative or administrative. Keller v. Potomac Electric Power Co., supra, page 444, of 261 U. S., 43 S. Ct. 445, 67 L. Ed. 731, and cases cited; Postum Cereal Co. v. California Fig Nut Company, supra, pages 700-701 of 272 U. S. 47 S. Ct. 284, 71 L. Ed. 478; Liberty Warehouse Co. v. Grannis, 273 U. S. 70, 74, 47 S. 282, 71 L. Ed. 541; Willing v. Chicago Auditorium Association, 277 U. S. 274, 289, 48 S. Ct. 507, 72 L. Ed. 880; Ex parte Bakelite Corporation, 279 U. S. 438, 449, 49 S. Ct. 411, 73 L. Ed. 789.

The proceeding on the appeal from the commission's action is quite unlike the proceeding, under sections 1001(a) to 1004(b) of the Revenue Act of 1926, c. 27, 44 Stat., pt. 2, p. 109 (26 USCA ss 1224-1227), on a petition for the review of a decision of the Board of Tax Appeals; for, as this court heretofore has pointed out, such a petition

(a) brings before the reviewing court the United States or **391 its representative on the one hand and the interested taxpayer on the other,

(b) presents for consideration either the right of the United States to the payment of a tax claimed to be due from the taxpayer or his right to have refunded to him money which he has paid to satisfy a tax claimed to have been erroneously charged against him, and

(c) calls for a judicial and binding determination of the matter so presented-all of which makes the proceeding a case or controversy within the scope of the judicial power as defined in the judiciary article. Old Colony Trust Co. v. Commissioner of Internal Revenue, 279 U. S. 716, 724-727, 49 S. Ct. 499, 73 L. Ed. 918.

[Federal Radio Commission v. General Electric Co., 281 U.S. 464, 50 S.Ct. 389 (U.S.,1930)]

Glidden Co. v. Zdanok, 370 U.S. 530, 82 S.Ct. 1459 (U.S.App.D.C. 1962)

The Constitution nowhere makes reference to ‘legislative courts.’ The power given Congress in Art. I, s 8, cl. 9, ‘To constitute Tribunals inferior to the Supreme Court,’ plainly relates to the ‘inferior Courts' provided for in Art. III, s 1; it has never been relied on for establishment of any other tribunals.

*544 The concept of a legislative court derives from the opinion of Chief Justice Marshall in American Insurance Co. v. Canter, 1 Pet. 511, 7 L.Ed. 242, dealing with courts established in a territory. A cargo of cotton salvaged from a wreck off the coast of Florida had been purchased by Canter at a judicial sale ordered by a court at Key West invested by the territorial legislature with jurisdiction over cases of salvage. The insurers, to whom the property in the cargo had been abandoned by the owners, brought a libel for restitution, claiming in part that the prior decree was void because not rendered in a court created by Congress, as required for the exercise of admiralty jurisdiction under Article III. Chief Justice Marshall for the Court swept this objection aside by noting that the Superior Courts of Florida, which had been created by Congress, were staffed with judges appointed for only four years, and concluded that Article III did not apply in the territories:

‘These Courts, then, 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.’ 1 Pet., at 546.

By these arresting observations the Chief Justice certainly did not **1470 mean to imply that the case heard by the Key West court was not one of admiralty jurisdiction otherwise properly justiciable in a Federal District Court sitting in one of the States. Elsewhere in the opinion he distinctly referred to the provisions of Article III to show that it was such a case. 1 Pet., at 545. All the Chief Justice meant, and what the case has ever after been *545 taken to establish, is that in the territories cases and controversies falling within the enumeration of Article III may be heard and decided in courts constituted without regard to the limitations of that article;^FN13 courts, that is, having judges of limited tenure and entertaining business beyond the range of conventional cases and controversies.

FN13. Far from being ‘incapable of receiving’ federal-question jurisdiction, the territorial courts have long exercised a jurisdiction commensurate in this regard with that of the regular federal courts and have been subjected to the appellate jurisdiction of this Court precisely because they do so. Benner v. Porter, 9 How. 235, 243, 13 L.Ed. 119; Clinton v. Englebrecht, 13 Wall. 434, 447, 20 L.Ed. 659; Reynolds v. United States, 98 U.S. 145, 154, 25 L.Ed. 244; United States v. Coe, 155 U.S. 76, 86, 15 S.Ct. 16, 19, 39 L.Ed. 76; Balzac v. Porto Rico, 258 U.S. 298, 312-312, 42 S.Ct. 343, 348, 66 L.Ed. 627; International Longshoremen's & etc., Union v. Juneau Spruce Corp., 342 U.S. 237, 240-241, 72 S.Ct. 235, 237, 238, 96 L.Ed. 275; cf. Martin v. Hunter's Lessee, 1 Wheat. 304, 338, 4 L.Ed. 97; see Pope v. United States, 323 U.S. 1, 13-14, 65 S.Ct. 16, 23, 89 L.Ed. 3.

The reasons for this are not difficult to appreciate so long as the character of the early territories and some of the practical problems arising from their administration are kept in mind. The entire governmental responsibility in a territory where there was no state government to assume the burden of local regulation devolved upon the National Government. This meant that courts had to be established and staffed with sufficient judges to handle the general jurisdiction that elsewhere would have been exercised in large part by the courts of a State.^FN14 But when the territories began entering into statehood, as they soon did, the authority of the territorial courts over matters of state concern ceased; and in a time when the size of the federal judiciary was still relatively small, that left the National Government with a significant *546 number of territorial judges on its hands and no place to put them. When Florida was admitted as a State, for example, Congress replaced three territorial courts of general jurisdiction comprising five judges with one Federal District Court and one judge.^FN15

FN14. Under Barber v. Barber, 21 How. 582, 584, 16 L.Ed. 226, for example, the federal courts in the States were incompetent to render divorces; but in the territories, where the legislative power of the United States of necessity extended to all such local matters, the territorial courts took cognizance of them. Simms v. Simms, 175 U.S. 162, 167-168, 20 S.Ct. 58, 60, 44 L.Ed. 115; De la Rama v. De la Rama, 201 U.S. 303, 26 S.Ct. 485, 50 L.Ed. 765.

FN15. Benner v. Porter, 9 How. 235, 240, 244, 13 L.Ed. 119. For statutory techniques since developed to avoid the interregnal problems involved in that case, see Metlakatla Indian Community etc., v. Egan, 363 U.S. 555, 557-559, 80 S.Ct. 1321, 1322, 1323, 4 L.Ed.2d 1397; 1 Moore, Federal Practice (2d ed. 1961), 32-34.

At the same time as the absence of a federal structure in the territories produced problems not foreseen by the Framers of Article III, the realities of territorial government typically made it less urgent that judges there enjoy the independence from Congress and the President envisioned by that article. For the territories were not ruled immediately from Washington; in a day of poor roads and slow mails, it was unthinkable that they should be. Rather, Congress left municipal law to be developed largely by the territorial legislatures, within the framework of organic acts and subject to a retained power of **1471 veto.^FN16 The scope of self-government exercised under these delegations was nearly as broad as that enjoyed by the States, and the freedom of the territories to dispense with protections deemed inherent in a separation of governmental powers was as fully recognized.^FN17

FN16. See Clinton v. Englebrecht, 13 Wall. 434, 441-445, 20 L.Ed. 659; Hornbuckle v. Toombs, 18 Wall. 648, 655-656, 21 L.Ed. 966.

FN17. Compare Clinton v. Englebrecht, supra, 13 Wall., at 446, 447, with Dreyer v. Illinois, 187 U.S. 71, 83-84, 23 S.Ct. 28, 32, 47 L.Ed. 79.

Against this historical background, it is hardly surprising that Chief Justice Marshall decided as he did. It would have been doctrinaire in the extreme to deny the right of Congress to invest judges of its creation with authority to dispose of the judicial business of the territories. It would have been at least as dogmatic, having recognized the right, to fasten on those judges a guarantee *547 of tenure that Congress could not put to use and that the exigencies of the territories did not require. Marshall chose neither course; conscious as ever of his responsibility to see the Constitution work, he recognized a greater flexibility in Congress to deal with problems arising outside the normal context of a federal system.

The same confluence of practical considerations that dictated the result in Canter has governed the decision in later cases sanctioning the creation of other courts with judges of limited tenure. In United States v. Coe, 155 U.S. 76, 85-86, 15 S.Ct. 16, 19, 39 L.Ed. 76, for example, the Court sustained the authority of the Court of Private Land Claims to adjudicate claims under treaties to land in the territories, but left it expressly open whether such a course might be followed within the States. The Choctaw and Chickasaw Citizenship Court was similarly created to determine questions of tribal membership relevant to property claims within Indian territory under the exclusive control of the National Government. See Stephens v. Cherokee Nation, 174 U.S. 445, 19 S.Ct. 722, 43 L.Ed. 1041; Ex parte Joins, 191 U.S. 93, 24 S.Ct. 27, 48 L.Ed. 110; Wallace v. Adams, 204 U.S. 415, 27 S.Ct. 363, 51 L.Ed. 547. Upon like considerations, Article III has been viewed as inapplicable to courts created in unincorporated territories outside the mainland, Downes v. Bidwell, 182 U.S. 244, 266-267, 21 S.Ct. 770, 778, 779, 45 L.Ed. 1088; Balzac v. Porto Rico, 258 U.S. 298, 312-313, 42 S.Ct. 343, 348, 66 L.Ed. 627; cf. Dorr v. United States, 195 U.S. 138, 145, 149, 24 S.Ct. 808, 811, 813, 49 L.Ed. 128, and to the consular courts established by concessions from foreign countries, In re Ross, 140 U.S. 453, 464-465, 480, 11 S.Ct. 897, 900, 905, 35 L.Ed. 581.^FN18

FN18. See generally, as to each of these courts, 1 Moore, Federal Practice (2d ed. 1961), 40-44, 47-50.

The touchstone of decision in all these cases has been the need to exercise the jurisdiction then and there and for a transitory period. Whether constitutional limitations on the exercise of judicial power have been held inapplicable has depended on the particular local setting, *548 the practical necessities, and the possible alternatives. When the peculiar reasons justifying investiture of judges with limited tenure have not been present, the Canter holding has not been deemed controlling. O'Donoghue v. United States, 289 U.S. 516, 536-539, 53 S.Ct. 740, 745, 746.

Since the conditions obtaining in one territory have been assumed to exist in each, this Court has in the past entertained a presumption that even those territorial judges who have been extended statutory assurances of life tenure and undiminished compensation have been so favored as a matter of legislative grace and not of constitutional compulsion. **1472 McAllister v. United States, 141 U.S. 174, 186, 11 S.Ct. 949, 953, 35 L.Ed. 693.^FN19 By a parity of reasoning, however, the presumption should be reversed when Congress creates courts the continuing exercise of whose jurisdiction is unembarrassed by such practical difficulties. See Mookini v. United States, 303 U.S. 201, 205, 58 S.Ct. 543, 545, 82 L.Ed. 748. As the Bakelite and Williams opinions recognize, the Court of Claims and the Court of Customs and Patent Appeals were created to carry into effect powers enjoyed by the National Government over subject matter-roughly, payment of debts and collection of customs revenue-and not over localities. What those opinions fail to deal with is whether that distinction deprives American Insurance Co. v. Canter of controlling force.

[. . .]

To deny that Congress may create tribunals under Article III for the sole purpose of adjudicating matters that it might have reserved for legislative or executive decision would be to deprive it of the very choice that Mr. Justice Curtis insisted it enjoys. Of course possession of the choice, assuming it is coextensive with the range of matters confided to the courts,^FN24 subjects those courts to the continuous possibility that their entire jurisdiction may be withdrawn. See Williams v. United States, 289 U.S. 553, 580-581, 53 S.Ct. 751, 760, 77 L.Ed. 1372. But the threat thus facing their independence is not in kind or effect different from that sustained by all inferior federal courts. The great constitutional compromise that resulted in agreement upon Art. III, s 1, authorized but did not obligate Congress to create inferior federal courts. 1 Farrand, The Records of the Federal Convention (1911), 118, 124-125; The Federalist, No. 81 (Wright ed. 1961), at 509 (Hamilton). Once created, they passed almost a century without exercising any very significant jurisdiction. Warren, New Light on the History of the Federal Judiciary Act of 1789, 37 Harv.L.Rev. 49, 65-70 (1923); Frankfurter, Distribution of Judicial Power Between United States and State Courts, 13 Cornell L.Q. 499 (1928). Throughout this period and beyond it up to today, they remained constantly subject to jurisdictional curtailment. Turner v. Bank of North America, 4 Dall. 8, 10 note, 1 L.Ed. 718 (Chase, J.); *552 Cary v. Curtis, 3 How. 236, 245, 11 L.Ed. 576; Sheldon v. Sill, 8 How. 441, 449, 12 L.Ed. 1147; Kline v. Burke Construction Co., 260 U.S. 226, 233-234, 43 S.Ct. 79, 82, 67 L.Ed. 226. Even if it should be conceded that the Court of Claims or the Court of Customs and Patent Appeals is any more likely to be supplanted, we do not think the factor of constitutional significance.^FN25

FN24. But see note 21, supra.

FN25. See generally Hart and Wechsler, The Federal Courts and the Federal System (1953), 312-340, and more specifically, 370 U.S., pp. 567-568, 82 S.Ct., pp. 1481-1482, infra.

 What has been said should suffice to demonstrate that whether a tribunal is to be recognized as one created under Article III depends basically upon whether its establishing legislation complies with the limitations of that article; whether, in other words, its business is the federal business there specified and its judges and judgments are allowed the independence there expressly or impliedly made requisite. To ascertain whether the courts now under inquiry can meet those tests, we must turn to examine their history, the development of their functions, and their present characteristics.

[. . .]

"Long before Glidden v. Zdanok was filed, the Congress had declared the Court of Claims ‘to be a court established under article III of the Constitution of the United States.’ Act of July 28, 1953, s 1, 67 Stat. 226, 28 U.S.C.A. s 171. Not that this ipse dixit made the Court of Claims an Article III court, for it must be examined in light of the congressional power exercised and the jurisdiction enjoyed, together with the characteristics of its judges. But the 1953 Act did definitely establish the intent of the Congress, which prior to that time was not clear in light of the Williams holding 20 years earlier that it was not an Article III court."

[. . .]

The judicial functions exercised by Article III courts cannot be performed by Congress nor delegated to agencies under its supervision and control. ^FN6 The bill of *601 attainder is banned by Art. I, s 9. If there is to be punishment, courts (in the constitutional sense) must administer it. As we stated in United States v. Lovett, 328 U.S. 303, 317, 66 S.Ct. 1073, 1079, 90 L.Ed. 1252:

FN6. The limitations on Article III courts that distinguish them from Article I courts were stated by Chief Justice Vinson in National Mut. Insurance Co. v. Tidewater Transfer Co., 337 U.S. 582, 629-630, 69 S.Ct. 1173, 1201, 93 L.Ed. 1556, in words that have, I think, general acceptance, though on the precise issue he wrote in dissent:

‘In Keller v. Potomac Electric Power Co., 1923, 261 U.S. 428, 43 S.Ct. 445, 67 L.Ed. 731, 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 page 435, 43 S.Ct. 445, 67 L.Ed. 731. 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 Hayburn's Case, 1792, 2 Dall. 409, 410, 1 L.Ed. 436; United States v. Ferreira, 1851, 13 How. 40, note 52, 14 L.Ed. 42 and Gordon v. United States, 1864, 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 regular course of judicial procedure, Marbury v. Madison, 1803, 1 Cranch 137, 2 L.Ed. 60, the power to pronounce a judgment and carry it into effect between persons and parties who bring a case before it for decision, Muskrat v. United States, 1910, 219 U.S. 346, 31 S.Ct. 250, 55 L.Ed. 246; Gordon v. United States, supra, the absence of revisory or appellate power in any other branch of Government, Hayburn's Case, supra; United States v. Ferreira, supra, and the absence of administrative or legislative issues or controversies, Keller v. Potomac Electric Power Co., supra; Postum Cereal Co. v. California Fig Nut Co., 1927, 272 U.S. 693, 47 S.Ct. 284, 71 L.Ed. 478.'

‘Those who wrote our Constitution well knew the danger inherent in special legislative acts which take away the life, liberty, or property of particular named persons, because**1500 the legislature thinks them guilty of conduct which deserves punishment. They intended to safeguard the people of this country from punishment without trial by duly constituted courts.’

Moreover, when an Article III court of law acts, there is a precise procedure that must be followed:

‘An accused in court must be tried by an impartial jury, has a right to be represented by counsel, he must be clearly informed of the charge against him, the law which he is charged with violating must have been passed before he committed the act charged, he must be confronted by the witnesses against him, he must not be compelled to incriminate himself, he cannot twice be put in jeopardy for the same offense, and even after conviction no cruel and unusual punishment can be inflicted upon him.’ Id., 317-318, 66 S.Ct. at 1080.

[Glidden Co. v. Zdanok, 370 U.S. 530, 82 S.Ct. 1459 (U.S.App.D.C. 1962)]

Freytag v. C.I.R. 501 U.S. 868, 889, 111 S.Ct. 2631, 2644 (U.S.,1991)

Petitioners, however, underestimate the importance of this Court's time-honored reading of the Constitution as giving Congress wide discretion to assign the task of adjudication in cases arising under federal law to legislative tribunals. See, e.g., American Insurance Co. v. Canter, 1 Pet. 511, 546, 7 L.Ed. 242 (1828) (the judicial power of the United States is not limited to the judicial power defined under Article III and may be exercised by legislative courts); Williams v. United States, 289 U.S. 553, 565-567, 53 S.Ct. 751, 754-755, 77 L.Ed. 1372 (1933) (same).

[Freytag v. C.I.R., 501 U.S. 868, 889, 111 S.Ct. 2631, 2644 (U.S.,1991)]

Ex parte Wilson 140 U.S. 575, *578-579, 11 S.Ct. 870,**872 (U.S.1891)

We may here, in passing, notice that the distinction between district courts when sitting as courts of the territory, and when sitting as courts of the United States was fully developed and explained in the case of Ex parte Gon-sha-yee supra; that by section 629, Rev. St., the circuit courts of the United States are given jurisdiction of crimes and offenses cognizable under the authority of the United States; and that by the act organizing the territory of New Mexico, of September 9, 1850,

(9 St. 446,) and the subsequent act of February 24, 1863, (12 St. 664,) organizing the territory of Arizona, the district courts of the latter territory were given the same jurisdiction in all cases arising under the constitution and laws of the United States as is vested in the circuit and district courts of the United States. It follows that as the circuit courts of the United States have jurisdiction over the crime of murder committed within any fort, arsenal, or other place within the exclusive jurisdiction of the United States, so prior to 1885 the district courts of a territory had jurisdiction over the crime of murder committed by any person other than an Indian upon an Indian reservation within its territorial limits, and that such jurisdiction has not been taken away by the legislation of that year. The first contention of petitioner, therefore, cannot be sustained.

[Ex parte Wilson, 140 U.S. 575, 578-579, 11 S.Ct. 870, 872 (U.S.1891)]

Article I and Article III Tribunals-Wikipedia

U.S. v. Union Pac. R. Co., 98 U.S. 569 (1878)

The question for decision is, therefore, squarely presented to us, as it was to the Circuit Court, whether, by the aid of that statute, and within the limits of the power it intended to confer, this bill can be sustained under the general principles of equity jurisprudence.

We say by the aid of that statute, because it is conceded on all sides that without it the bill cannot stand. The service of compulsory process on a party residing without the limits of the district of Connecticut who is not found within them, is expressly forbidden by the general statute defining the jurisdiction of the circuit courts. Parties and subjects of complaint having no proper connection with each other are grouped *602 together in this bill, and they, by the accepted canons of equity, pleading, render it multifarious. This, and other matters of like character, which are proper causes of demurrer, are fatal to it, unless the difficulty be cured by the statute.

When we recur to its provisions, which are said to authorize these and other departures from the general rules of equity procedure, counsel for the appellees insist that it is unconstitutional, not only in the particulars just alluded to, but that it is absolutely void as affecting the substantial rights of defendants in regard to matters beyond the power of Congress.

If this be true, we need inquire no further into the frame of the bill, and we therefore proceed, on the threshold, to consider the objections to the validity of the statute.

The Constitution declares (art. 3, sect. 2) that the judicial power shall extend to all cases in law and equity arising under the Constitution, the laws of the United States, and the treaties made, or which shall be made, under their authority; and to controversies to which the United States shall be a party.

**26 The matters in regard to which the statute authorizes a suit to be brought are very largely those arising under the act which chartered the Union Pacific Railroad Company, conferred on it certain rights and benefits, and imposed on it certain obligations. It is in reference to these rights and obligations that the suit is to be brought. It is also be be brought by the United States, which is, therefore, necessarily the party complainant. Whether, therefore, this suit is authorized by the statute or not, it is very clear that the general subject on which Congress legislated is within the judicial power as defined by the Constitution.

The same article declares, in sect. 1, that this ‘power shall be vested in one supreme court and in such inferior courts as the Congress may, from time to time, ordain.’

The discretion, therefore, of Congress as to the number, the character, the territorial limits of the courts among which it shall distribute this judicial power, is unrestricted except as to the Supreme Court. On that court the same article of the Constitution confers a very limited original jurisdiction,-namely, ‘in all cases affecting ambassadors, other public ministers, and consuls, and cases in which a State shall be a party,’-and an *603 appellate jurisdiction in all the other cases to which this judicial power extends, with such exceptions and under such regulations as the Congress shall make.

There is in this same section a limitation as to the place of trial of all crimes, which it declares shall (except in cases of impeachment) be held in the State where they shall have been committed, if committed within any State.

Article 6 of the amendments also provides 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.’ These provisions, which relate solely to the place of the trial for criminal offences, do not affect the general proposition. We say, therefore, that, with the exception of the Supreme Court, the authority of Congress, in creating courts and conferring on them all or much or little of the judicial power of the United States, is unlimited by the Constitution.

Congress has, under this authority, created the district courts, the circuit courts, and the Court of Claims, and vested each of them with a defined portion of the judicial power found in the Constitution. It has also regulated the appellate jurisdiction of the Supreme Court.

The jurisdiction of the Supreme Court and the Court of Claims is not confined by geographical boundaries. Each of them, having by the law of its organization jurisdiction of the subject-matter of a suit, and of the parties thereto, can, sitting at Washington, exercise its power by appropriate process, served anywhere within the limits of the territory over which the Federal government exercises dominion.

**27 It would have been competent for Congress to organize a judicial system analogous to that of England and of some of the States of the Union, and confer all original jurisdiction on a court or courts which should possess the judicial power with which that body thought proper, within the Constitution, to invest them, with authority to exercise that jurisdiction throughout the limits of the Federal government. This has been done in reference to the Court of Claims. It has now jurisdiction only of cases in which the United States is defendant. It is just as *604 clearly within the power of Congress to give it exclusive jurisdiction of all actions in which the United States is plaintiff. Such an extension of its jurisdiction would include all that the statute under consideration has granted to the Circuit Court.

It is true that Congress has declared that no person shall be sued in a circuit court of the United States who does not reside within the district for which the court was established, or who is not found there. But a citizen residing in Oregon may be sued in Maine, if found there, so that process can be served on him. There is, therefore, nothing in the Constitution which forbids Congress to enact that, as to a class of cases or a case of special character, a circuit court-any circuit court-in which the suit may be brought, shall, by process served anywhere in the United States, have the power to bring before it all the parties necessary to its decision.

Whether parties shall be compelled to answer in a court of the United States wherever they may be served, or shall only be bound to appear when found within the district where the suit has been brought, is merely a matter of legislative discretion, which ought to be governed by considerations of conveyience, expense, &c., but which, when exercised by Congress, is controlling on the courts.

So, also, the doctrine of multifariousness; whether relating to improperly combining persons or grievances in the bill, it is simply a rule of pleading adopted by courts of equity. It has been found convenient in the administration of justice, and promotive of that end, that parties who have no proper connection with each other shall not be compelled to litigate together in the same suit, and that matters wholly distinct from and having no relation to each other, and requiring defences equally unconnected, shall not be alleged and determined in one suit. The rule itself, however, is a very accommodating one, and by no means inflexible. Such as it is, however, it may be modified, limited, and controlled by the same power which creates the court and confers its jurisdiction. The Constitution imposes no restraint in this respect upon the power of Congress. Sect. 921 of the Revised Statutes, which has been the law for fifty years, declares that when causes of like nature or relating to the same question are pending, the court may consolidate *605 them, or make such other orders as are necessary to avoid costs and delay. It is every-day practice, under this rule, to do what the statute authorizes to be done in the case before us.

**28 But it is argued that the statute confers a special jurisdiction to try a single case, and is intended to grant the complainant new and substantial rights, at the expense and by a corresponding invasion of those of the defendants.

It does not create a new or special tribunal. Any circuit court of the United States where the bill might be filed was, by the act, invested with the jurisdiction to try the case. Nor was new power conferred on the court beyond those which we have regarded as affecting the mode of procedure. It seems to us that any circuit court, sitting as a court of equity, which could by its process have lawfully obtained jurisdiction of the parties, and considered in one suit all the matters mentioned in the statute, could have done this before the act as well as afterwards.

But if this be otherwise, we are aware of no constitutional objection to the power of the legislative body to confer on an existing court a special jurisdiction to try a specific matter which in its nature is of judicial cognizance.

The principal defendant in this suit, the one around which all the contest is ranged, is a corporation created by an act which reserved the right of Congress to repeal or modify the charter. To this corporation Congress made a loan of $27,000,000, and a donation of lands of a value probably equal to the loan.

The statute-books of the States are full of acts directing the law officers to proceed against corporations, such as banks, insurance companies, and others, in order to have a decree declaring their charters forfeited. Special statutes are also common, ordering suits against such corporations when they have become insolvent, to wind up their business affairs, and to distribute their assets, and prescribing with minuteness the course of procedure which shall be followed and the court in which the suit shall be brought.

This court said, in the case of The Bank of Columbia v. Okely (4 Wheat. 235), in speaking of a summary proceeding given by the charter of that bank for the collection of its debts: ‘It is the remedy, and not the right, and as such we have no doubt *606 of its being subject to the will of Congress. The forms of administering justice, and the duties and powers of courts as incident to the exercise of a branch of sovereign power, must ever be subject to legislative will, and the power over them is unalienable, so as to bind subsequent legislatures.’ And in Young v. The Bank of Alexandria (4 Cranch, 397), Mr. Chief Justice Marshall says: ‘There is a difference between those rights on which the validity of the transactions of the corporation depends, which must adhere to those transactions everywhere, and those peculiar remedies which may be bestowed on it. The first are of general obligation; the last, from their nature, can only be exercised in those courts which the power making the grant can regulate.’ See also The Commonwealth v. The Delaware & Hudson Canal Co. et al., 43 Pa. St. 227; State of Maryland v. Northern Central Railroad Co., 18 Md. 193; Colby v. Dennis, 36 Me. 1; Gowan v. Penobscot Railroad Co., 44 id. 140.

**29 Statutes of this character, if not so common as to be called ordinary legislation, are yet frequent enough to justify us in saying that they are well-recognized acts of legislative power uniformly sustained by the courts.

It may be said, and probably with truth, that such statutes, when they have been held to be valid by the courts, do not infringe the substantial rights of property or of contract of the parties affected, but are intended to supply defects of power in the courts, or to give them improved methods of procedure in dealing with existing rights.

This leads to an inquiry indispensable to a sound decision of the case before us; namely, does this statute, by its true construction, do any thing more than this?

We might rest this branch of the case upon the concession of counsel for appellants, made both in their brief and in the oral argument, but we proceed to examine the proposition for ourselves.

The first suggestion of the legal mind on this inquiry is, that it will not be presumed, unless the language of the statute imperatively requires it, that Congress, by a retrospective law, intended to create new rights in one party to the suit at the expense, or by an invasion of the rights, of other parties; or, *607 where no right of action founded on past transactions existed, that Congress intended to create it.

The United States was to be sole complainant in a suit in equity, and though there may be other defendants, the Union Pacific Railroad Company is the only one named in the act. The relief to be granted is the collection and payment of moneys and the restoration of property, or its value, ‘either to said railroad corporation or to the United States, whichever shall in equity be entitled thereto.’ The decree, therefore, can only be made on the ground of some relief to which the United States or the company is entitled by the general principles of equity jurisprudence. It is no objection to granting such relief that the company is a defendant, for by the flexibility of chancery practice a person whose interests in the subject of litigation are on the same side with the complainant may be made a defendant. The corporation could also in such a suit file a cross-bill against the complainant, and, by virtue of this statute, against any co-defendant of whom it could rightfully claim the relief which the statute authorizes.

But whatever be the relief asked, it could only, by the express terms of the act, be granted to that party who was in equity thereunto entitled. It is very plain that there was here no new right established. No new cause of equitable relief. No new rule for determining what were the rights of the parties. That was to be decided by the principles of equity; not new principles of equity, but the existing principles of equitable jurisprudence.

But the statute very specifically defines the matters which may be embraced in this suit as foundations for relief, and classifies them under a very few heads, by declaring who besides the corporation may be sued. They are persons who have received,--
[. . .]

The proposition is that the United States, as the grantor of the franchises of the company, the author of its charter, and the donor of lands, rights, and privileges of immense value, and as parens patriae, is a trustee, invested with power to enforce the proper use of the property and franchises granted for the benefit of the public.

The legislative power of Congress over this subject has already been considered, and need not be further alluded to. The trust here relied on is one which is supposed to grow out of the relations of the corporation to the government, which, without any aid from legislation, are cognizable in the ordinary courts of equity.

It must be confessed that, with every desire to find some clear and well-defined statement of the foundation for relief under this head of jurisdiction, and after a very careful examination of the authorities cited, the nature of this claim of right remains exceedingly vague. Nearly all the cases- we may almost venture to say all of them-fall under two heads:--

1. Where municipal, charitable, religious, or eleemosynary corporations, public in their character, had abused their franchises, perverted the purpose of their organization, or misappropriated their funds, and as they, from the nature of their corporate functions, were more or less under government supervision, the Attorney-General proceeded against them to obtain correction of the abuse; or,

2. Where private corporations, chartered for definite and limited purposes, had exceeded their powers, and were restrained *618 or enjoined in the same manner from the further violation of the limitation to which their powers were subject.

The doctrine in this respect is well condensed in the opinion in The People v. Ingersoll, recently decided by the Court of Appeals of New York. 58 N. Y. 1. ‘If,’ says the court, ‘the property of a corporation be illegally interfered with by corporation officers and agents or others, the remedy is by action at the suit of the corporation, and not of the Attorney-General. Decisions are cited from the reports of this country and of this State, entitled to consideration and respect, affirming to some extent the doctrine of the English courts, and applying it to like cases as they have arisen here. But in none has the doctrine been extended beyond the principles of the English cases; and, aside from the jurisdiction of courts of equity over trusts of property for public uses and over the trustees, either corporate or official, the courts have only interfered at the instance of the Attorney-General to prevent and prohibit some official wrong by municipal corporations or public officers, and the exercise of usurped or the abuse of actual powers.’ p. 16.

**37 To bring the present case within the rule governing the exercise of the equity powers of the court, it is strongly urged that the company belongs to the class first described.

The duties imposed upon it by the law of its creation, the loan of money and the donation of lands made to it by the United States, its obligation to carry for the government, and the great purpose of Congress in opening a highway for public use and the postal service between the widely separated States of the Union, are relied on as establishing this proposition.

But in answer to this it must be said that, after all, it is but a railroad company, with the ordinary powers of such corporations. Under its contract with the government, the latter has taken good care of itself; and its rights may be judicially enforced without the aid of this trust relation. They may be aided by the general legislative powers of Congress, and by those reserved in the charter, which we have specifically quoted.

The statute which conferred the benefits on this company, the loan of money, the grant of lands, and the right of way, did the same for other corporations already in existence under State or territorial charters. Has the United States the right *619 to assert a trust in the Federal government which would authorize a suit like this by the Attorney-General against the Kansas Pacific Railway Company, the Central Pacific Railroad Company, and other companies in a similar position?

If the United States is a trustee, there must be cestuis que trust. There cannot be the one without the other, and the trustee cannot be a trustee for himself alone. A trust does not exist when the legal right and the use are in the same party, and there are no ulterior trusts.

Who are the cestuis que trust for whose benefit this suit is brought? If they be the defrauded stockholders, we have already shown that they are capable of asserting their own rights; that no provision is made for securing them in this suit should it be successful, and that the statute indicates no such purpose.

If the trust concerned relates to the rights of the public in the use of the road, no wrong is alleged capable of redress in this suit, or which requires such a suit for redress.

Railroad Company v. Peniston (18 Wall. 5) shows that the company is not a mere creature of the United States, but that while it owes duties to the government, the performance of which may, in a proper case, be enforced, it is still a private corporation, the same as other railroad companies, and, like them, subject to the laws of taxation and the other laws of the States in which the road lies, so far as they do not destroy its usefulness as an instrument for government purposes.

We are not prepared to say that there are no trusts which the United States may not enforce in a court of equity against this company. When such a trust is shown, it will be time enough to recognize it. But we are of opinion that there is none set forth in this bill which, under the statute authorizing the present suit, can be enforced in the Circuit Court.

**38 There are many matters alleged in the bill in this case, and many points ably presented in argument, which have received our careful attention, but of which we can take no special notice in this opinion. We have devoted so much space to the more important matters, that we can only say that, under the view which we take of the scope of the enabling statute, they furnish no ground for relief in this suit.

*620 The liberal manner in which the government has aided this company in money and lands is much urged upon us as a reason why the rights of the United States should be liberally construed. This matter is fully considered in the opinion of the court already cited, in United States v. Union Pacific Railroad Co. (supra), in which it is shown that it was a wise liberality for which the government has received all the advantages for which it bargained, and more than it expected. In the feeble infancy of this child of its creation, when its life and usefulness were very uncertain, the government, fully alive to its importance, did all that it could to strengthen, support, and sustain it. Since it has grown to a vigorous manhood, it may not have displayed the gratitude which so much care called for. If this be so, it is but another instance of the absence of human affections which is said to characterize all corporations. It must, however, be admitted that it has fulfilled the purpose of its creation and realized the hopes which were then cherished, and that the government has found it a useful agent, enabling it to save vast sums of money in the transportation of troops, mails, and supplies, and in the use of the telegraph.

A court of justice is called on to inquire not into the balance of benefits and favors on each side of this controversy, but into the rights of the parties as established by law, as found in their contracts, as recognized by the settled principles of equity, and to decide accordingly. Governed by this rule, and by the intention of the legislature in passing the act under which this suit is brought, we concur with the Circuit Court in holding that no case for relief is made by the bill.
[U.S. v. Union Pac. R. Co., 98 U.S. 569 (1878)]

Northern Pipeline v. Marathon Pipeline, 458 U.S. 50 (1982)

“The distinction between public rights and private rights has not been definitively explained in our precedents.FN22 Nor is it necessary to do so in the present cases, for it suffices to observe that a matter of public rights must at a minimum arise “between the government and others.” Ex parte Bakelite Corp., supra, at 451, 49 S.Ct., at 413.  FN23 In contrast, “the liability of one individual to another under the law as defined,” Crowell v. Benson, supra, at 51, 52 S.Ct., at 292, is a matter of private rights. Our precedents clearly establish that only controversies in the former category may be removed from Art. III courts and delegated to legislative courts or administrative agencies for their determination. See Atlas Roofing Co. v. Occupational Safety and Health Review Comm'n, 430 U.S. 442, 450, n. 7, 97 S.Ct. 1261, 1266, n. 7, 51 L.Ed.2d 464 (1977); Crowell v. Benson, supra, 285 U.S., at 50-51, 52 S.Ct., at 292.   See also Katz, Federal Legislative Courts, 43 Harv.L.Rev. 894, 917-918 (1930). FN24 Private-rights disputes, on the other hand, lie at the core of the historically recognized judicial power.”

[Northern Pipeline Const. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 102 S.Ct. 2858 (1983)]

Williams v. U.S., 289 U.S. 553 (1933)

“Levin v. United States (C.C.A.) 128 F. 826, 830, 831. In that case, Judge Sanborn, in a very carefully drawn opinion, pointed out that Congress cannot vest any portion of the judicial power granted by section 1 and defined by section 2 of the third article of the Constitution in courts not ordained and established by itself; that the judicial power there granted and defined necessarily extended only to the trial of the classes of cases named in section 2; but that these sections neither expressly nor impliedly prohibited Congress from conferring judicial power upon other courts. ‘Thus,’ he says, ‘the authority granted *567 to territorial courts to hear and determine controversies arising in the territories of the United States is judicial power. But it is not a part of that judicial power granted by section 1, and defined by section 2, of article 3 of the Constitution. Nevertheless, under the constitutional grant to Congress of power to ‘make all needful rules and regulations respecting the territory * * * belonging to the United States' (article 4, s 3), that body may create territorial courts not contemplated or authorized by article 3 of the Constitution, and may confer upon them plenary judicial power, because the establishment of such courts and the bestowal of such authority constitute appropriate means by which to exercise the congressional power to make needful rules respecting the territory belonging to the United States.”

[Williams v. U.S., 289 U.S. 553, 53 S.Ct. 751, (1933)]

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