United States v. Marrone

• Decision Date: 09 April 1959
• Docket Number: Crim. No. 4031,4033.
• Parties: UNITED STATES of America, Plaintiff, v. Frank MARRONE, Defendant. UNITED STATES of America, Plaintiff, v. Truman EMBERG, Defendant.
• Court: U.S. District Court — District of Alaska

172 F. Supp. 368

UNITED STATES of America, Plaintiff, v. Frank MARRONE, Defendant.

UNITED STATES of America, Plaintiff, v. Truman EMBERG, Defendant.

Crim. Nos. 4031, 4033.

District Court, Alaska, Third Division, Anchorage.

April 9, 1959.

George N. Hayes, Asst. U. S. Atty., Anchorage, Alaska, for plaintiff.

Wendell P. Kay, Anchorage, Alaska, for defendant Marrone.

Seaborn J. Buckalew, Jr., Anchorage, Alaska, for defendant Emberg.

McCARREY, District Judge.

By order of the Court, these two cases have been consolidated for argument.

The defendants filed a motion for continuance "* * * upon the ground that this Court has no jurisdiction to try the offense with which he is charged, this court being a Territorial court abolished by the admission of Alaska to Statehood." The question to be determined by the Court is whether the defendants should be granted a continuance until the question of the jurisdiction of the District Court for the Territory of Alaska over state matters is determined by an appellate tribunal.

Both the defendants were indicted for crimes against the Territory of Alaska by the grand jury on November 7, 1958, prior to Alaska's admission into the Union. Their trials before the District Court for the Territory of Alaska were set for April 15 and April 13, 1959, respectively.

The defendants base their argument in support of their motions to continue upon their interpretation of Section 17, Article XV, of the Alaska Constitution, which reads as follows:

"Section 17. Transfer of court jurisdiction. Until the courts provided for in Article IV are organized, the courts, their jurisdiction, and the judicial system shall remain as constituted on the date of admission unless otherwise provided by law. When the state courts are organized, new actions shall be commenced and filed therein, and all causes, other than those under the jurisdiction of the United States, pending in the courts existing on the date of admission, shall be transferred to the proper state court as though commenced, filed, or lodged in those courts in the first instance, except as otherwise provided by law."

In this section, the State of Alaska accepted the then established judicial system of the Territory of Alaska, including the appellate court, the United States Court of Appeals for the Ninth Circuit, for the transitional period while the state court system was being established. Section 18 of Public Law 85-508, the Alaska Statehood Bill, 48 U.S.C.A. preceding section 23, was Congress's acceptance. This section continues the District Court for the Territory of Alaska and the Commissioners Courts for an interim period, but note that it does not specifically continue the appellate jurisdiction of the United States Court of Appeals for the Ninth Circuit.

Counsel for the defendants further state that Sections 1291, 1292 and 1294 of Title 28 U.S.C.A. no longer confer appellate jurisdiction on the United States Court of Appeals for the Ninth Circuit from matters originating in the Alaska territorial courts as was the system before statehood, for the reason that the District Court for the Territory of Alaska is not a "district court of the United States," and all references to the District Court for the Territory of Alaska contained in the above sections of Title 28 U.S.C.A., were stricken on the admission of Alaska into the Union by the terms of Section 12 of the Alaska Statehood Bill, supra. Therefore, they conclude that Alaska's court system does not remain as constituted on the date of Alaska's admission to the Union, and thus Alaska was not granted what it bargained for in the way of a court system as provided in Section 17, Article XV, of its Constitution. The defendants claim that this lack of an appellate tribunal violates the Privileges and Immunities clause of the United States Constitution, Article 4, Section 2, because the citizens of all the other states in the Union enjoy the right of appeal in all state and federal matters. It is interesting to note that the United States Department of Justice takes a similar position in two Fairbanks cases. See Deere v. U. S. and Kosters v. U. S.

I am of the opinion that there is a simple answer to this problem and that is that the United States Court of Appeals for the Ninth Circuit never lost its appellate jurisdiction over the present United States District Court in Alaska in either state or federal matters. Certainly Congress did not intend to leave Alaska without an appellate tribunal. No the thought makes reason stare. Thus, I find that Section 12 of the Alaska Statehood Bill, supra, does not go into effect until the President, by proclamation, terminates the present federal courts in Alaska. See United States v. Starling, D.C.Alaska, 171 F.Supp. 47.

I am of the opinion that even if Section 12 of the Alaska Statehood Bill, supra, was effective immediately upon the admission of Alaska into the Union, Sections 1291, 1292, and 1294 of Title 28 U.S.C.A., still provided for appeals from the present Alaska courts to the United States Court of Appeals for the Ninth Circuit.

The defendants contend that the removal by Section 12 of the Statehood Act of the references to appeal, to the United States Court of Appeals for the Ninth Circuit, of causes arising in the United States District Court for the Territory of Alaska, from Sections 1291, 1292, and 1294, supra, precludes appeals from this court because it is not a "district court of the United States." While not referred to at the hearing, I have never been moved or impressed with the theory relating to the jurisdiction of the territorial courts based on the "Magic Words" doctrine. They have "* * * become as sounding brass, or a tinkling cymbal."

Judge Dimond, a distinguished jurist of this court, relied on this doctrine in at least two cases to reach a decision. See Reese v. Fultz, 1951, 96 F.Supp. 449, 13 Alaska 227, and United States v. Bell, 1952, 108 F.Supp. 777, 14 Alaska 142. Judge Denman of the United States Court of Appeals for the Ninth Circuit also relied on this doctrine in his holding that the Norris-LaGuardia Act, 29 U.S. C.A. § 101 et seq., did not apply in the Hawaiian Federal Courts. In that case there was also strong legislative history to support his conclusion. See International Longshoreman's and Warehouseman's Union v. Wirtz, 9 Cir., 1948, 170 F.2d 183. The difference between the approach of Judge Dimond and this Court is that this Court presumes a federal statute referring to "District Courts of the United States" to include the District Court for the Territory of Alaska until it is shown by the preponderance of the evidence that this was not the intent of Congress. Judge Folta used this approach in regard to the "magic words," "district court of the United States," found in Section 303(b) of the Taft Hartley Act, 29 U.S.C.A. § 187(b). See Juneau Spruce Corp. v. International Longshoremen's Warehousemen's Union, 1949, 83 F.Supp. 224, 225, 226, 12 Alaska 260, 265:

"`The Board shall have power to petition any circuit court of appeals of the United States (including the United States Court of Appeals for the District of Columbia), or if all the circuit courts of appeals to which application may be made are in vacation, any district court of the United States (including the District Court of the United States for the District of Columbia), within any circuit or district, respectively, wherein the unfair labor practice in question occurred or wherein such person resides or transacts business * * *.'

"Under the construction urged by the defendants the Board would be deprived of any forum in which to enforce its orders, so far as the Territory of Alaska is concerned, if the Court of Appeals for the 9th Circuit were in vacation. And a similar result would follow if the Board should proceed under Section 10(j). But that is not all. Provision is made in Section 11(2) for the enforcement of the process of `any district court of the United States or the United States courts of any Territory or possession, or the District Court of the United States for the District of Columbia'. But in Section 302(e), empowering the district courts of the United States and the United States courts of the territories and possessions to enjoin violations of the act, the District of Columbia is omitted, so that, literally construed, violations of the act may be enjoined everywhere, including the possessions, where it is clear under Section 2(6) that the act has no application whatever, except in the District of Columbia. It is thus apparent that, if defendants' view of the law is correct, the courts are empowered under Sections 11(2) and 302(e) to enforce their orders by subpoena and injunction in the possessions, where the substantive provisions of the act have no application, but not by injunction in the District of Columbia where obviously such provisions are in force and effect.

"It would seem, therefore, that if such consequences are to be avoided the statute must be given such a construction as will be reasonable and consistent with its provisions. That it was not the intent of Congress to limit jurisdiction to the constitutional courts seems reasonably clear, and indeed authority for this view is not wanting. Thus in United States v. Brotherhood of Locomotive Engineers, D.C., 79 F. Supp. 485, and United States v. International Union, United Mine Workers, D.C., 77 F.Supp. 563, injunctions were issued by Judge Goldsborough of the District Court of the United States for the District of Columbia under a provision of Section 208(a) granting such power to `any district court of the United States'. Manifestly, if defendants' view is correct, that Court was without power to act in these cases. But the decision which in my opinion is decisive of this controversy is Federal Trade Commission v. Klesner, 274 U.S. 145, 47 S.Ct. 557, 71 L.Ed. 972, in which the term `circuit court of appeals of the United States' in the Federal Trade

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