ERROR TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT
White, McKenna, Holmes, Day, Hughes, Van Devanter, Lamar, Pitney, McReynolds
MR. JUSTICE HUGHES, after making the foregoing statement, delivered the opinion of the court.
The motion to dismiss must be denied. It sufficiently appears from the amended bill that jurisdiction did not depend solely upon the citizenship of the respective
parties but that the controversy involved, with other questions, the construction of the act of Congress prescribing the authority of the territorial legislature. In this view, the decision of the Circuit Court of Appeals is not final. Vicksburg v. Henson, 231 U.S. 259, 267.
The plaintiff in error contends that the land in question did not escheat to the County of King, Territory of Washington, for the reasons (1) that the Territory was not a sovereign, but a municipal corporation, (2) that the organic law of the Territory conveyed to it no property rights of the United States, (3) that the act of the territorial legislature providing for escheat to counties was forbidden by the organic law, (4) that this legislative act was invalid because its title was not broad enough to cover the subject-matter, and (5) that there was never any office found.
There is, of course, no dispute as to the sovereignty of the United States over the Territory of Washington or as to the consequent control of Congress. As an organized political division, the Territory possessed only the powers which Congress had conferred and hence the territorial legislature could not provide for escheat unless such provision was within the granted authority. Sere v. Pitot, 6 Cranch, 332, 337; American Ins. Co. v. Canter, 1 Pet. 511, 543; National Bank v. Yankton County, 101 U.S. 129, 133. The Organic Act (March 2, 1853; 10 Stat. 172, 175; see Rev. Stat; §§ 1851, 1924) provided as follows:
"SEC. 6. . . . That the Legislative power of the Territory shall extend to all rightful subjects of legislation not inconsistent with the Constitution and laws of the United States. But no law shall be passed interfering with the primary disposal of the soil; no tax shall be imposed upon the property of the United States; nor shall the lands or other property of non-residents be taxed higher than the lands or other property of residents. All the
laws passed by the Legislative Assembly shall be submitted to the Congress of the United States, and, if disapproved, shall be null and of no effect: Provided, That nothing in this act shall be construed to give power to incorporate a bank or any institution with banking powers, or to borrow money in the name of the Territory, or to pledge the faith of the people of the same for any loan whatever, directly or indirectly. No charter granting any privileges of making, issuing, or putting into circulation any notes or bills in the likeness of bank-notes, or any bonds, scrip, drafts, bills of exchange, or obligations, or granting any other banking powers or privileges, shall be passed by the Legislative Assembly; nor shall the establishment of any branch or agency of any such corporation, derived from other authority, be allowed in said Territory; nor shall said Legislative Assembly authorize the issue of any obligation, scrip, or evidence of debt, by said Territory, in any mode or manner whatever, except certificates for service to said Territory. And all such laws, or any law or laws inconsistent with the provisions of this act, shall be utterly null and void. And all taxes shall be equal and uniform; and no distinctions shall be made in the assessments between different kinds of property, but the assessments shall be according to the value thereof. To avoid improper influences, which may result from intermixing in one and the same act such things as have no proper relation to each other, every law shall embrace but one object, and that shall be expressed in the title."
This manifestly was not a grant of the property of the United States, but it was an authority which extended to "all rightful subjects" of legislation save as it was limited by the essential requirement of conformity to the Constitution and laws of the United States and by the restrictions imposed. The prohibition against interference "with the primary disposal ...