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ent one upon the basis just stated, the argu- | 1173, Sup. Ct. Rep. p. 718): "In our opinion ment proceeds to insist that the 6th Amendment does not apply to the territory of Alaska, because § 1891 of the Revised Statutes only extends the Constitution to the organized territories, in which, it is urged, Alaska is not embraced.
the 7th 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, 43 L. ed. 873, 19 Sup. Ct. Rep. 580, no reference whatever being made to the statute of February 21, 1871, extending the provisions of the Constitution to the District of Columbia (16 Stat. at L. 419, chap. 62), it was declared (p. 5, L. ed. p. 874, Sup. Ct. Rep. p. 582): 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."
"It is beyond
And in Black v. Jackson, 177 U. S. 349, 44 L. ed. 801, 20 Sup. Ct. Rep. 648, speaking of a law of the territory of Oklahoma, it was said (p. 363, L. ed. p. 807, Sup. Ct. Rep. p. 653):
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 5th, 6th, and 7th 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 ref-law,' where the value in controversy exceeds erence 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, 41 L. ed. 1172, 17 Sup. Ct. Rep. 717; Thompson v. Utah, 170 U. S. 343, 42 L. ed. 1061, 18 Sup. Ct. Rep. 620; Capital Traction Co. v. Hof, 174 U. S. 1, 43 L. ed. 873, 19 Sup. Ct. Rep. 580; Black v. Jackson, 177 U. S. 349, 44 L. ed. 801, 20 Sup. Ct. Rep. 648.
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, L. ed. p.
"And it also fails to recognize the provisions of the 7th Amendment securing the right of trial by jury in 'suits at common
$20. 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, 13 L. ed. 761, 770; American Pub. Co. v. Fisher, 166 U. S. 464, 466, 41 L. ed. 1079, 1080, 17 Sup. Ct. Rep. 618; Springville v. Thomas, 166 U. S. 707, 41 L. ed. 1172, 17 Sup. Ct. Rep. 717. 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. at L. 81, 84, chap. 182, § 6,) 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 6th 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 | disclaimed by the four dissenting justices, set aside the verdict and grant a new trial. And it is so ordered.
Mr. Justice Brown, concurring:
I am disposed to concur in the conclusion of the court upon the ground that, by the treaty of cession with Russia, it was provided that "the inhabitants of the ceded territory shall be admitted to the enjoyment 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." I am inclined to think, though with some doubt, that those words include a right to a trial by a jury, as understood among us from the adoption of the Constitution. I certainly should not dissent if the case were put upon that ground.
The tenor of the opinion, however, is such that I should be doing an injustice to myself if I failed to express my views upon the doctrine of incorporation. My position regarding the applicability of the Constitution to newly acquired territory is contained in the opinion delivered by me in Downes v. Bidwell, 182 U. S. 244, 45 L. ed. 1088, 21 Sup. Ct. Rep. 770. It is simply that the Constitution does not apply to territories acquired by treaty until Congress has so declared, and that in the meantime, under its power to regulate the territories, it may deal with them regardless of the Constitution, except so far as concerns the natural rights of their inhabitants to life, liberty, and property.
A different view, however, was expressed in a concurring opinion by Mr. Justice White, to the effect that when Congress "incorporated" territory into the United States it resulted that in governing such territory "all the limitations of the Constitution which are applicable to Congress in exercising this authority necessarily limit its power on this subject. It follows, also, that every provision of the Constitution which is applicable to the territories is also controlling therein, and the determination of what particular provision of the Constitution is applicable, generally speaking, in all cases, involves an inquiry into the situation of the territory, and its relation to the United States." The question was thus briefly stated: "Had Porto Rico, at the time of the passage of the act in question, been incorporated into and become an integral part of the United States?" If it had, the inference was that the Constitution applied in all its force.
This, however, was not the opinion of the court; it was certainly not the opinion of the justice who announced the conclusion and judgment of the court; it was wholly
who held that the Constitution applied the moment the territory was ceded and became the property of the United States, and that no act of incorporation was necessary. It was simply the individual opinion of three members of the court. The point was not pressed upon our attention in the briefs or arguments of counsel in that case. It is but faintly suggested in the briefs in this case. It has never since that time received the indorsement of this court, and in my opinion is wholly unnecessary to the disposition of this case.
My own view is, and has been, that Congress in dealing with newly acquired territory is unfettered by the Constitution, unless it formally or by implication extends the Constitution to it; and that it may accept a cession of territory, institute a temporary government there, as it has done in a large number of instances, without thereby extending the Constitution over it. the general act (Rev. Stat. § 1891) Congress did declare that "the Constitution, and all laws of the United States which are not locally inapplicable, shall have the same force and effect within all the organized territories, and in every territory hereafter organized, as elsewhere within the United States." If the act of May 17, 1884, providing a civil government for Alaska (23 Stat. at L. 24, chap. 53), be regarded as organizing a territory there, it would follow that such territory at once fell within Rev. Stat. § 1891, and the Constitution was extended to it without further action. The first article declares that Alaska "shall constitute a civil and judicial district, the government of which shall be organized and administered as hereinafter provided." Had the opinion treated the territory as organized under this act, I should not have dissented from this view, since § 1891 would have applied to it.
Congress did undoubtedly provide a permanent civil government for Alaska by the act of June 6, 1900 (31 Stat. at L. 321, chap. 786), but it evidently did not regard the Constitution as extended to it by any previous act, since it provided in § 171 for trials of misdemeanors by a jury of six.
There are so many difficulties connected with the applicability of the Constitution that it has seemed to me that the only true test was whether Congress intended to apply it or not in the particular case. When is a territory incorporated so as to make the Constitution applicable in all its provisions? That some action on the part of Congress is necessary to extend the Constitution to the territories was settled in Downes v. Bidwell, but shall such action be direct, or may it be indirect by way of incorporation? May
While the government provided by this resolution was temporary in its character, and a mere continuance of existing laws, the act itself was as complete an incorporation of the islands as it was possible for language to make it. The resolution declared that "said cession" of the Republic of Ha
Congress, in organizing or incorporating a | to any existing treaty of the United States, territory, restrict the application of the shall remain in force until the Congress of Constitution to it, or must it give it all? the United States shall otherwise deterWhat is an organized as distinguished from mine." an incorporated territory? Does not the acceptance of a cession of territory and the appointment of a civil governor work an incorporation of the territory as territory of the United States? If the acceptance of territory as territory of the United States be not an incorporation, what language is necessary to effect that result? Apparently, ac-waii "is accepted, ratified, and confirmed, ceptance of the territory is insufficient in and that the said Hawaiian Islands and their the opinion of the court in this case, since dependencies be, and they are hereby, anthe result that Alaska is incorporated into nexed as a part of the territory of the the United States is reached, not through United States, and are subject to the sovthe treaty with Russia, or through the es-ereign dominion thereof." In view of this tablishment of a civil government there, but | language I do not see how it is possible to from the act of July 20, 1868, concerning in- escape the conclusion that there was a plain ternal revenue taxation, and the act of July incorporation by Congress of these islands, 27, 1868, extending the laws of the United and an extension of sovereignty over them. States relating to the customs, commerce, Notwithstanding this, however, we held that and navigation over Alaska, and establish- the conviction of one who, between the date ing a collection district there. Certain other of the Newlands resolution and the date of acts are cíted, notably the judiciary act of establishing a civil government, had been March 3, 1891, making it the duty of this tried on information and convicted by a court to assign the several territories of nonunanimous jury, was legal, though not the United States to particular circuits. in compliance with the 5th and 6th Amend- . But no mention is made either of the act ments to the Constitution, upon the ground of May 17, 1884, providing a civil govern- that the Constitution was not formally exment for Alaska, or the act of June 6, 1900, tended to them until the territory was ormaking further provision for a civil gov-ganized, June 14, 1900 (31 Stat. at L. 141, ernment and establishing a complete code of laws. These seem to me the vital acts upon the status of Alaska; yet they are completely ignored in the opinion of the court, and the fact of incorporation is sought to be established by what seem to me remote inferences from immaterial statutes. Indeed, I regard the whole theory of the extension of the Constitution by the incorporation of territory as a new depar-poration. The word appears to me simply ture in Federal jurisprudence, and that the true answer to the question whether the Constitution applies to a territory is to be found in the fact whether Congress has extended the Constitution to it or not.
chap. 339, § 5). This case shows the impossibility of applying the doctrine of incorporation without an accurate definition of the term. Hitherto we have been content to divide our territories into the organized and unorganized; but now we are asked to introduce a new classification of "incorporated" territories, without attempting to define what shall be deemed an incor
to introduce a new element of confusion, and to be of no practical value. Rev. Stat. § 1891, declaring that the Constitution shall have force and effect within all the organized territories and in every territory hereThat the mere act of incorporating ter- after organized, seems to meet the requireritory into the United States does not of its ments of every case, and to be operative own force carry the Constitution there, re- wherever Congress does not in the organigardless of the wishes of Congress, is evi-zation restrict the application of the Condent from the case of Hawaii v. Mankichi, stitution in some particular. 190 U. S. 197, 47 L. ed. 1016, 23 Sup. Ct. In Dorr v. United States, 195 U. S. 138, Rep. 787, wherein it was held that, notwith-24 Sup. Ct. Rep. 808, 49 L. ed. 128, the standing the island had been annexed to the question was presented, as stated by Mr. United States "as a part of the territory of Justice Day, whether, "in the absence of the United States, and subject to the sova statute of Congress expressly conferereign dominion thereof," yet it was possible for Congress to declare that "the municipal legislation of the Hawaiian Islands, not enacted for the fulfilment of the treaties so extinguished, and not inconsistent with this joint resolution, nor contrary to the Constitution of the United States, nor
ring the right, trial by jury is a necessary incident of judicial procedure in the Philippine Islands, where demand for trial by that method has been made by the accused and denied by the courts established in the islands." In discussing the case it was said that not only has Congress hitherto
refrained from incorporating the Philippine | without any formal action on the part of Islands into the United States, but in the Congress in recognition or enforcement of act of 1902, providing for temporary civil the treaty, and whether Congress wished government (32 Stat. at L. 691, chap. 1369) such a result or not, the inhabitants of that there was an express provision that Rev. territory became at once entitled to the beneStat. § 1891, should not apply to the Phil- fit of all the guaranties found in the Conippine Islands. This is the section giving stitution of the United States for the proforce and effect to the Constitution of the tection of life, liberty, and property. United States, not locally inapplicable, After such ratification no person charged within the organized territories. The case with the commission of a crime against the simply holds that, as Congress did not ex- United States in that territory could be letend the right of trial by jury to the Phil-gally tried therefor, otherwise than by what ippine Islands, and had not so incorporated this court has adjudged to be the jury of them as to make the provision apply by implication, the right did not exist. The cases of The Coquitlam, 163 U. S. 346, 41 L. ed. 184, 16 Sup. Ct. Rep. 1117, and Binns v. United States, 194 U. S. 486, 48 L. ed. 1087, 24 Sup. Ct. Rep. 816, are too obviously inapplicable to require comment. I do not dissent from the conclusion of the court in this case, but I do dissent from the proposition that Congress may not deal with territories as it pleases, until it has seen fit to extend the provisions of the Constitution to them, which, once done, in my view, is irrevocable. I regret that the disputed doctrine of incorporation should have been made the mainstay of the opinion of the court, when the case might so easily have been disposed of upon grounds which would have evoked no utterance of disapproval.
Mr. Justice Harlan, concurring:
My views in reference to what are called the Insular Questions have been fully expressed in the opinions filed by me in Downes v. Bidwell, 182 U. S. 244, 375, 45 L. ed. 1088, 1140, 21 Sup. Ct. Rep. 770; Hawaii v. Mankichi, 190 U. S. 197, 226, 47 L. ed. 1016, 1026, 23 Sup. Ct. Rep. 787; Dorr v. United States, 195 U. S. 138, 154, 24 Sup. Ct. Rep. 808, 49 L. ed. 128. I adhere to what has been said in those opinions, and do not care to restate here the grounds upon which I proceeded in for
The constitutional requirement that "the trial of all crimes, except in cases of impeachment, shall be by jury," means, as this court has adjudged, a trial by the historical, common-law jury of twelve persons, and applies to all crimes against the United States committed in any territory, however acquired, over which, for purposes of government, the United States has sovereign dominion.
No tribunal or person can exercise authority involving life or liberty, in any territory of the United States, organized or unorganized, except in harmony with the Constitution.
Congress cannot suspend the operation of the Constitution in any territory after it has come under the sovereign authority of the United States, nor by any affirmative enactment, or by mere nonaction, can Congress prevent the Constitution from being the supreme law for any peoples subject to the jurisdiction of the United States.
The power conferred upon Congress to make needful rules and regulations respecting the territories of the United States does not authorize Congress to make any rule or regulation inconsistent with the Constitution or violative of any right secured by that instrument.
The proposition that a people subject to the full authority of the United States for purposes of government may, under any circumstances, or for any period of time, long or short, be governed as Congress pleases to ordain, without regard to the Constitution, is, in my judgment, inconsistent with the whole theory of our insti tutions.
The particular question arising in the present case is whether that section of the act of Congress of June 6th, 1900, chap. 786 [31 Stat. at L. 321], relating to Alaska, which provides "that hereafter in trials for misdemeanors six persons shall constitute If the Constitution does not become the a legal jury," is consistent with the Consti- supreme law in a territory acquired by tution of the United States. I content my-treaty, and whose inhabitants are under the self in this case with stating only the general reasons for the conclusion which I have reached on that question.
Immediately upon the ratification in 1867 of the treaty by which Alaska was acquired from Russia, that territory, as I think, came under the complete sovereign jurisdiction and authority of the United States, and,
dominion of the United States, until Congress, in some distinct form, shall have expressed its will to that effect, it would necessarily follow that, by positive enactment, or simply by nonaction, Congress, under the theory of "incorporation," and although a mere creature of the Constitution, could forever withhold from the inhabitants of
such territory the benefit of the guaranties | vated railroad structure in front of his of life, liberty, and property as set forth in premises, unless compensated for the imthe Constitution. I cannot assent to any pairment of his easements of light, air, and such doctrine. I cannot agree that the access, which judgment was entered pursupremacy of the Constitution depends up- suant to the mandate of the Court of Ap on the will of Congress. peals of that State, which reversed a judg ment of the Appellate Division of the Supreme Court, First Department, affirming a decree in favor of plaintiff, entered at a special term held in and for the County of New York. Reversed and remanded for further proceedings.
As these are my views upon the underlying questions presented by the record, I cannot concur in all the reasoning in the opinion of the court. But I entirely concur in the judgment holding the act of Congress in question to be void. I do so, not upon the ground that Alaska had been previously "incorporated" into the United States by the legislation of Congress, but upon the ground that the right of the accused to a trial by the jury of the Constitution became complete immediately upon the acquisition of Alaska by treaty, and before any legislation upon the subject by Congress,—indeed, without any power in Congress to add to or impair or destroy that right.
An owner of real property abutting on a street
in New York city, who derived his title from the grantor to the city, in trust for a public highway, of the strip of land constituting the street, and acquired such title when the state courts had decided that one so situated had a contract right to easements of light, air, and access, which could not be taken from him without compensation by the construction of an elevated railroad in the adjoining street, is protected against impairment of his easements of light and air by the substitution by a railroad company, at the subsequent command of the state, as expressed in N. Y. Laws 1892, chap. 339, of an elevated structure in lieu of its surface or partly depressed roadbed, which occupied the street at the time of his purchase, and cut off his access to the street. [Per Justices McKenna, Harlan, Brewer, and Day.
Mr. Justice Brown concurs in the result.]
See same case below in Appellate Division of Supreme Court, 60 App. Div. 621, 69 N. Y. Supp. 910, and Court of Appeals, 173 N. Y. 549, 66 N. E. 558.
Statement by Mr. Justice McKenna:
Plaintiff sues to enjoin the use of a certain elevated railroad structure on Park avenue, in the city of New York, `in front of his premises, unless upon payment of the fee value of certain easements of light, air, and access, and other rights appurtenant to his premises. He also prays damages for injury sustained from the year 1890 to time of trial.
From the evidence in the case the supreme court found that the plaintiff had been, since 1888, the owner of a lot of land on the northwesterly corner of Park avenue and 115th street, on which he, in 1891, erected a five-story brick building, and that there were appurtenant to said lot and building "certain easements of light, air, and access in and over said Park avenue, in front of said premises." The defendant, The New York & Harlem Railroad Company, is and was during all the times mentioned herein the owner of a railroad and railroad structures in Park avenue, in front of such premises, and the New York Central & Hudson River Railroad Company is the lessee of said railroad structures under a lease dated April 1, 1873, for a term of four hundred and one years; that said railroad, prior to 1872, was operated on two tracks laid upon the surface of said avenue and along the center thereof, in front of said premises.
In pursuance of chapter 72 of the Laws railroad in front of said premises, between of 1872 certain changes were made in the the years 1872 and 1874, whereby the number of tracks was increased from two to four, and were laid along the center of the avenue, and at the south line of said premises were at the surface, and at the north line of said premises were laid in a trench about 52 feet below the surface. In front of said premises the railroad was bounded on both sides by masonry walls about 3 feet high above the surface, and cut off access across said avenue immediately in front of said premises.