United States v. Starling

• Decision Date: 21 February 1959
• Docket Number: Civ. No. A-15159,3909,A-14734.,Cr. No. 3973
• Citation: 171 F. Supp. 47
• Parties: UNITED STATES of America, Plaintiff, v. Everett STARLING, Defendant. UNITED STATES of America, Plaintiff, v. Rolland THOMAS and Floyd Curnutt, Defendants. Thomas P. GRAHAM, Jr., Regional Director of the Nineteenth Region of the National Labor Relations Board, for and on behalf of the NATIONAL LABOR RELATIONS BOARD, Petitioner, v. UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, LOCAL UNION 1281, AFL-CIO, Respondent. Robert WOLFE, Margaret Wolfe, Ray G. Wolfe, Esther Wolfe, Warren Dice, Phyllis Dice, Kyle Gaylor and Bette Gaylor, partners d/b/a Wolfe's Department Store, Plaintiffs, v. MARYLAND CASUALTY COMPANY, a corporation, Defendant.
• Court: U.S. District Court — District of Alaska

171 F. Supp. 47

UNITED STATES of America, Plaintiff, v. Everett STARLING, Defendant.

UNITED STATES of America, Plaintiff, v. Rolland THOMAS and Floyd Curnutt, Defendants.

Thomas P. GRAHAM, Jr., Regional Director of the Nineteenth Region of the National Labor Relations Board, for and on behalf of the NATIONAL LABOR RELATIONS BOARD, Petitioner, v. UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, LOCAL UNION 1281, AFL-CIO, Respondent.

Robert WOLFE, Margaret Wolfe, Ray G. Wolfe, Esther Wolfe, Warren Dice, Phyllis Dice, Kyle Gaylor and Bette Gaylor, partners d/b/a Wolfe's Department Store, Plaintiffs, v. MARYLAND CASUALTY COMPANY, a corporation, Defendant.

Cr. Nos. 3973, 3909, Civ. Nos. A-15159, A-14734.

District Court, Alaska Third Division, Anchorage.

February 21, 1959.

Crim. Nos. 3973, 3909:

George F. Boney, Asst. U. S. Atty., Anchorage, Alaska, for plaintiff.

T. Stanton Wilson, Wilson & Wilson, Anchorage, Alaska, and Wendell P. Kay, Anchorage, Alaska, for defendant Starling.

Raymond E. Plummer and James J. Delaney, Plummer & Delaney, Anchorage, Alaska, for defendants Thomas and others.

Civ. No. A-15,159:

Charles M. Henderson, Atty., N. L. R. B., Seattle, Wash., George F. Boney, Asst. U. S. Atty., Anchorage, Alaska, for petitioner.

Gordon W. Hartlieb, Hartlieb, Groh & Rader, Anchorage, Alaska, for respondent.

Civ. No. A-14,734:

David H. Thorsness, Davis, Hughes & Thorsness, Anchorage, Alaska, for plaintiffs.

James J. Delaney, Plummer & Delaney, Anchorage, Alaska, for defendant.

McCARREY, District Judge.

These cases come before the court on a motion to dismiss based upon the grounds that since Alaska was admitted to the Union as a state on the 3d day of January 1959, by presidential proclamation, the United States District Court for the Territory of Alaska is now without federal jurisdiction over criminal and civil matters arising under the laws of the United States.

The court, on its own motion, ordered the above four cases consolidated for the sole purpose of deciding the jurisdiction question common to all of them.

Criminal No. 3973, United States of America v. Everett Starling, comes before the court on a grand jury indictment, as follows:

"That during the period from April, 1957, to April, 1958, at or near Elmendorf Air Force Base, near Anchorage, Third Judicial Division, District of Alaska, Everett Starling being then and there an employee of Branch 40 Exchange Service Station, an agency of the United States, and as a part of his employment being charged with the duty to act as cashier; further that as cashier it being the duty of said Everett Starling to receive monies earned in the course of the sale of gasoline and gasoline by-products and to account for said monies received; said Everett Starling did wilfully, unlawfully, and feloniously and with intent to defraud said Branch 40 Exchange Service Station, did embezzle said monies in the sum of approximately One Thousand Dollars ($1,000.00), the exact amount being unknown to the Grand Jury, said monies being the property of said Branch 40 Exchange Service Station."

This indictment was brought under section 641, title 18, U.S.C.A.

Criminal No. 3909, United States of America v. Rolland Thomas and Floyd Curnutt, comes before the court by way of information, in conformance with the law, and charges the defendants with the following crime:

"That on or about the 27th day of June, 1958 in Nushagak Bay, Third Judicial Division, District of Alaska, Rolland Thomas and Floyd Curnutt did engage unlawfully in salmon fishing with commercial gear in a closed area, to-wit: That the said Rolland Thomas and Floyd Curnutt did make a set and did fish with a drift gill net in Nushagak Bay outside of and southeast of a line between the white Coast and Geodetic Survey markers located near Nichols Hills and Etolin Point, respectively."

This information charges a violation of title 50, Code of Federal Regulations, section 104.2.

Civil No. A-15,159, Thomas P. Graham, Jr., Regional Director of the Nineteenth Region of the National Labor Relations Board, for and on behalf of the National Labor Relations Board v. United Brotherhood of Carpenters and Joiners of America, Local Union 1281, AFL-CIO, comes before the court upon a petition filed by Thomas P. Graham, Regional Director of the Nineteenth Region of the National Labor Relations Board, who seeks an injunction against the defendant, United Brotherhood of Carpenters and Joiners of America, Local Union 1281, AFL-CIO, under section 10(l) of the National Labor Relations Act, as amended. See 29 U.S.C.A. § 160(l).

Civil No. A-14,734, Robert Wolfe, Margaret Wolfe, Ray G. Wolfe, Esther Wolfe, Warren Dice, Phyllis Dice, Kyle Gaylor and Bette Gaylor, partners d/b/a Wolfe's Department Store v. Maryland Casualty Company, a corporation, comes before the court upon a complaint for declaratory judgment under the Federal Declaratory Judgment Act, which specifically applies to Alaska. 28 U.S.C.A. § 2201.

Congress established a district court for the District of Alaska with the jurisdiction of district courts of the United States, and with general jurisdiction in civil, criminal, equity and admiralty "causes", and divided the territory into four (4) divisions, "* * * which shall also be recording divisions." 48 U.S.C.A. § 101.

The judges who are appointed to preside over these courts are "appointed by the President, by and with the advice and consent of the Senate, and shall hold their respective offices for the term of four years and until their successors are appointed and qualified, unless sooner removed by the President for cause." 48 U.S.C.A. § 112.

It is patent that the present functioning courts in Alaska are legislative in character, established under article IV, sec. 3, of the United States Constitution, and not under article III, sec. 1 of the United States Constitution. See McAllister v. United States, 1891, 141 U.S. 174, 11 S.Ct. 949, 35 L.Ed. 693.

The proponents of the motions to dismiss for want of jurisdiction claim that section 18 of the Alaska Statehood Bill (Public Law 85-508, sec. 18, 85th Congress, July 7, 1958) is void on three grounds:

1. It is a violation of article 3, sec. 1, of the United States Constitution, which provides that federal judges in federal courts (at least in admitted states) shall hold office during good behavior.

2. It is a violation of the privileges and immunities clause of the United States Constitution, article 4, sec. 2, in that the citizens of all the other states in the Union enjoy the benefits of a federal judge with life tenure, a benefit which Alaska as a state is deprived of for a three-year transitional period.

3. It is a denial of due process of law under the fifth amendment, United States Constitution, for a person charged with a federal crime in an admitted state, or a civil action belonging in a federal court and begun in an admitted state, to be tried by a federal judge with anything less than life tenure. The reason for the lack of due process is that a federal judge of less than life tenure will not have the independence that a federal judge with life tenure has and, thus, his decisions might be influenced by other than legal considerations.

After many years of petitioning Congress for admission into the Union, Alaska was admitted on July 7, 1958, upon the condition that her electorate approve the Statehood Act as it was passed by Congress (Public Law 85-508, 85th Congress, H.R. 7999, July 7, 1958). Prior to her admission, Alaska held a constitutional convention in accordance with chapter 46, Session Laws of Alaska 1955. Under ordinance 2, section 24, article 15, of the Alaska constitution, which emerged from this convention and was adopted by the voters, Alaska sent two senators and a congressman to Washington under a plan called the Alaska-Tennessee Plan, in order to gain further recognition. On August 26, 1958, the voters, by a substantial majority, approved the Statehood Act and all its conditions.

It is to be noted (but without an attempt to individually set forth all of them) that Alaska was admitted into the Union upon certain conditions, some of which were specifically approved by the voters, and others which were not specifically approved. The boundaries of the State of Alaska and the national defense withdrawal provisions of the Statehood Bill are examples of conditions specifically approved. See section 8(b), Alaska Statehood Bill supra. Section 4 of the Statehood Bill relating to claims against the United States, jurisdiction of Indian lands, taxes on lands of the United States, section 6(e) pertaining to the retention of control of the Alaska fisheries for an indeterminate period in the Department of the Interior, section 6(h) pertaining to mineral leases, permits, etc., and section 18 of the Statehood Bill pertaining to the judiciary, are examples of conditions not specifically approved by the voters, 48 U.S.C.A. note preceding section 23.

Unlike Hawaii, the Territory of Alaska did not create and organize its own territorial court system prior to its admission into the Union. Therefore, the only court system functioning on Alaska's admittance into the Union, with the exception of municipal courts, was that of the United States District Court for the Territory of Alaska. This factor compelled Congress and the Territory of Alaska to provide for an orderly judicial system for both the federal government and the new State of Alaska during the period of transition. Otherwise, a hiatus would be existent. What would be more economical, logical and practical than to have these two sovereignties provide that the present existing court system would assume the temporary court functions. The constitution of Alaska, in this respect, provides as follows:

"Article XV

"Schedule Of Transitional Measures

"To provide an orderly transition from a territorial to a state form of government, it is declared and ordained:

"Section 1. Continuance of laws.

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