
    WARD McALLISTER, Jr., v. THE UNITED STATES.
    [No. 15288.
    Decided May 31, 1887.]
    
      On the Proofs.
    
    The judge of the district court of Alaska is suspended during a recess of the Senate, and another person commissioned to perform the duties of the office ad interim. Subsequently, and before the next session, he is removed, and a third person appointed, who is ultimately confirmed by the Senate. The salary of the office is not drawn by the first substitute, but remains in the Treasury. Alaska at the time has no territorial government, and is termed, in the act authorizing the appointment, a “ District,” and the claimant is commissioned as “ United States District judge for the District of Alaslca.”
    
    I. The “district judge” of Alaska has no legal rights different from those of other Territorial judges. Though termed in his commission “ United States district judge,” he is a civil officer, subject to suspension and removal at the pleasure of the appointing power, and not a United States judge, holding “during good behavior,” within the intent of the Constitution (Art. Ill, § 1).
    II. The organic act establishing a judicial system for the Territory of Alaska, Aet of May 17, 1884 (23 Stat. L., 24), is peculiar because of the peculiar circumstances which existed; but so far as the power and jurisdiction of its court is concerned, does not differ materially from the organic acts of the other Territories.
    
      The Reporters' statement of the case:
    The following are the principal facts found by the court:
    I. The claimant received a commission as follows:
    “ Chester A. Arthur, President of the United States of America, to all who shall see these presents, greeting:
    “Know ye that, reposing special trust and confidence in the wisdom, uprightness, andlearningof WardMcAllister,jr., of California, I have nominated and, by and with the advice and con sent of the Senate, do appoint him to be United States district judge for the District of Alaska, and do authorize and empower him to execute and fulfill the duties of that office according to the Constitution and laws of the said United States, and to have and to hold the said office, with all the powers, privileges, and emoluments to the same of right appertaining, unto him, the said Ward McAllister, jr., for the term of four years from the day of the date hereof, and until his successor shall be appointed and qualified, subject to the conditions prescribed by law.
    “ In testimony whereof I have caused these letters to be made patent and the seal of the United States tobe hereunto affixed.
    “Given under my hand, at the city of Washington, the fifth day of July, in the year of our Lord one thousand eight hundred and eighty-four, and of the Independence of the United States of America the one hundred and ninth.
    “ [l. s.] Chester A. Arthur.”
    II. The President took the following action:
    “Grover Cleveland, President of the United States of America, to all who shall see these jiresents, greeting:
    “ Know ye that, by virtue of the authority conferred upon the- President by section 1768 of the Revised Statutes of the United States, I do hereby suspend Ward McAllister, jr., of Alaska, from the office of United States district judge for the District of Alaska until the end of the next session of the Senate, and I hereby designate Edward J. Dawne, of Oregon, to perform the duties of such suspended officer in the mean time, he being a suitable person therefor, subject to all provisions of law applicable thereto.
    “ In testimony whereof I have caused these letters to be made patent and the seal of the United States to be hereunto affixed.
    “ Given under my hand, at the city of Washington, the twenty-first day of July, in the year of our Lord one thousand eight hundred and eighty-five, and of the Independence of the United States of America the one hundred and tenth.
    “ [l. s.] Grover Cleveland.”
    III. The President took the following action:
    “Grover Cleveland, President of the United States of America, to all who shall see these presents, greeting:
    “ Know ye that, by virtue of the authority conferred upon the President by section 1763 of the Revised Statutes of the United States, I do hereby suspend Edward J. Dawne, of Alaska, from the office of United States judge for the district of Alaska until the end of the next session of the Senate, and I hereby designate Lafayette Dawson, of Missouri, to perform the duties of such suspended officer in the mean time, he being a suitable person therefor, subject to all provisions of law applicable thereto.
    
      “ In testimony whereof I have caused these letters to be made patent and the seal of the United States to be hereunto affixed.
    “ Given under my hand, at the city of Washington, the third day of December, in the year of our Lord one thousand eight hundred and eighty-five, and of the Independence of the United States of America the one hundred and tenth.
    “ [l. s.] Grover Cleveland.”
    IY. The President issued the following commission:
    “ Grover Cleveland, President of the United States of America,, to all who shall see these presents, greeting:
    “ Know ye that, reposing special trust and confidence in the wisdom, uprightness, and learning of Lafayette Dawson, of Missouri, I have nominated, and, by and with the advice and consent of the Senate, do appoint him to be United States judge for the District of Alaska, and do authorize and empower him to execute and fulfill the duties of that office according to the-Constitution and laws of the said United States, and to have and to hold the said office, with all the powers, privileges, and emoluments to the same of right appertaining, unto him, the said Lafayette Dawson, for the term of four years from the day of the date hereof, and until his successor shall be appointed and qualified, subject to the conditions prescribed by law.
    “In testimony whereof I have caused these letters to be made patent and the seal of the United States to be hereunto affixed.
    “ Given under my hand, at the city of Washington, the second day of August, in the year of our Lord one thousand eight hundred and eighty-six, and of the Independence of the United States of America the one hundred and eleventh.
    “ [l. s.] Grover Cleveland.”
    Y, Claimant received the salary of United States district, judge for the district of Alaska up to and including August-28, 1885.
    YI. Claimant, without resistance, vacated the office of United States district judge for the District of Alaska on the 28th day of August, 1885, and subsequently thereto has not performed any of the duties nor exercised any of the functions of said office.
    YII. From and after the 28th day of August, 1885, the duties and powers of United States district judge for the District of Alaska were performed first by Edward J. Dawne and after-wards by Lafayette Dawson, and the salary attached to said office has not been paid to claimant since August 28,1885. The salary appropriated for the judge of the District of Alaska for the period between August 29,1885, and March 12,1886, inclusive, has not been paid to any one, but remains in the Treasury to the credit of the proper appropriation. Mr. Dawson has received his compensation since the latter date.
    VIII. Claimant has not instituted proceedings of any kind or character other than this action to determine his right or title to the office of United States district judge for the District of Alaska since August 28,1885.
    
      Mr. John 8. Blair and Mr. Joseph K. MeGamnion for the claimant:
    The Act of May 17,1884 (23 Stat. L., 24), fixes the term of the district judgeship of Alaska at four years. The President, in appointing him to office for that period, was not exercising his constitutional power of appointment, but one expressly conferred upon him by statute. The express grant in section 9 (23 Stat. L., 27) indicates that Congress did not regard the general power of appointing ‘‘ all other officers of the United States ” by and with the advice and consent of the Senate, conferred by section 2, Article II, of the Constitution, as extending to offices created by that act. And in this was recognized the oft-repeated decision of the Supreme Court, that the po wer to make needful rules and regulations respecting the territory or other property of the United States was plenary.
    The President deriving his appointing power from the statute, as in the case of Perkins (116 U. S. R., 483), it was competent for Congress to fix the term of office, and having made no provision for removal or suspension, claimant was not subject to removal even by the President and Senate combined, until the expiration of his term. (See, also, Marhury v. Madison, 1 Cranch, 153, ex parte Sennen, 13 Pet., 359.)
    But is section 1768, Revised Statutes (act of March 2,1867), in pari materia with the act of May 17,1884, and is the fixation in the later act subject to the provisions of the former %
    
    The history of this act is no small part of the history of the United States; so far as reference to the debates of both houses is permitted it will show that the one thought in the mind of Congress was the curtailment of a power asserted by the President to have been conferred upon him by the Constitution; and, as proof that the Fortieth Congress did not deem the act of 1867 applicable to territorial offices, we find the act of July 25,1868 (15 Stat., 178), in sections 2, 3, 9,10, providing expressly that the governor, secretary, attorneys, judges, and marshal of Wyoming should hold their offices for four years unless sooner removed by the President, by and with the advice and consent of the Senate.
    If the acts of March 2, 1867, July 25,1868, April 5,1869, and May 17,1881, be considered together, they establish that, Congress having fixed the term of office of the officers at Alaska at four years, and conferred no authority either upon the President alone or upon the President in conjunction with the Senate to remove, and Judge McAllister having been appointed by a purely statutory authority to an office created by statute, he holds the office for the term fixed by the statute and is entitled to the compensation so fixed, and that the words in section 1768, Bevised Statutes, “the President is authorized to suspend any civil officer appointed by and with the advice and consent of the Senate,” were used solely in reference to the constitutional exercise of the power of appointment and • removal, and although general enough in the letter to include the claimant, were not so intended.
    If the language of section 1768 is to be held broad enough to include officers appointed by statutory authority as well as constitutional officers, the exception in that section is equally broad. If the enactment of that section deals with officers, whether constitutional or' otherwise, the exception, all other things being equal, should include not only United States courts existing' under the Constitution, but also those created by organic acts. It has uniformly been held by the Supreme Court that the courts organized by the legislatures of the Territories and those created in the Territories by the organic acts of Congress are not United States courts in the constitutional sense. We do not contend that they are, but we insist that a court created bjr an act of Congress, the judge of which is appointed by the President, his tenure fixed by Congress, authorized to try offenses in violation of the statutes of the United States, to entertain suits wherein the United States are plaintiffs, whose judge receives his salary from the Treasury of the United States, whose judgments are subject to review by the Supreme Court, and whose convictions are sub.ject to the pardoning power of the President, is a “ court of the ■ United States,” and keeping in view the general scope of section 1768, contended for by the Attorney-General, is within the exception.
    It is not a United States court in the constitutional sense, but is' one in the sense that Congress could legislate as to the salary and tenure of its judge, and could reserve him from the operation of general words which would otherwise include him.
    If this court of Alaska was clothed with less judicial power than the constitutional courts, the term “United States ” might be inapt. But the additional power to try cases between citizens of the same State, the amplification of jurisdiction, does not detract from its claim to be so called.
    While the decisions are uniform that courts within the Territories, whether created directly by Congress or by a legislature thereunto authorized by Congress, are not the “inferior •courts ” which by the Constitution Congress is authorized to establish, it is clear that while the organic act in each case transfers to the local legislature more or less power of regulation, of practice, jurisdiction, &c., there is reserved to Congress certain legislative power in the way of compensating the judges from the public Treasury, fixing their tenure of office, diminishing or increasing their number, and providing for the disposition of their records. It is apparent that a court created by Congress, enforcing its laws, may be a court of the United States without being a constitutional one, and that within the domain which by the organic acts has been relegated to the legislatures, general legislation concerning courts of the United ■States would not apply to them, while legislation within the ■reserved powers would iuclude them as well as the constitutional courts. The nature of the legislation and the standpoint from which it is taken would determine the sense in which the words “United States courts” or “courts of the United States” were used.
    If it be assumed that Congress meant in section 1768 to include Territorial officers in the power of suspension, there are sufficient reasons which might have influenced Congress in excepting judges of the courts within the Territories from suspension and removal during their term of office, and these •cannot be better stated than by reading from the dissenting opinion, of Mr. Justice McLean in the case of United States v. Guthrie, 17 Howard, 284.
    In conclusion, it is contended that if “ the courts of the United States,” in section 1708, is to be limited to those created under the Constitution, then, by parity of reason, the words “ any civil officer appointed by the President by and with the advice and consent of the Senate,” in the same section, means any officer so appointed by the President in the exercise of his constitutional powers. One spirit must have animated the whole section.
    
      Mr. Assistant Attorney-General Howard for the defendants.
   Davis, J.,

delivered the opinion of the court:

Claimant was appointed judge of the District of Alaska, took the oath of office, and entered upon Lis duties$ later he was suspended by the President, and another person was designated to perform the duties of the office, who in his turn, and before the meeting of the Senate, was also suspended, and a third x>er-son was designated, who in due course was confirmed and commissioned in claimant’s inace. The political status of Alaska ■is peculiar in its nature, the District being without alegislature or government other than that i>rescribed in the act axipearing on the 24th page of the 23d volume of the Statutes at Large.

We have already decided (Howard's Case, ante, p. —) that a judge of a Territorial court is n.ot a judge of a United States-court within the meaning of the third article of the Constitution, but is a civil officer, whose office exists by virtue of the constitutional provision empowering Congress “to make all needful rules and regulations respecting the territory” belonging to the United States ; and therefore the incumbent of the office is subject to the will of the National Legislature, and his tenure and pay are governed by statute law as it may exist or be amended.

The district judge of Alaska has no different legal rights than has a judge of a Territory. Alaska is called a “ District ” and Arizona a “Territory,” but over both have the Congress jurisdiction by virtue of the same constitutional provision. The peculiar circumstances which exist as to Alaska, required legislation for its government somewhat different from that provided for the Territories, hut nothing is found in the organic act tending to show on the part of Congress an intention or a desire to give the judge to be there appointed any rights superior to those possessed by other judges holding office by virtue of statues authorized by section 3 of the fourth article of the Constitution. The act creates'a civil and judicial district ; it creates a district court, having the civil and criminal j urisdiction of district courts of the United States, exercising the j urisdiction of circuit courts, and having also such other jurisdiction not inconsistent with the act as may be established by law. The judge was to be appointed for the term of four years, “ and until his successor is appointed and qualified.”

' The jurisdiction of district courts in Washington Territory was the same as that vested in the circuit and district courts of the United States (10 Stat. L., 176); in New Mexico “ the Constitution and all laws of the United States which are not locally inapplicable have the same force and effect as elsewhere in the United.States” (9 Stat. L., 452), and the district courts in the Territory have the same jurisdiction in cases arising under the Constitution and laws of the United States as is vested in the circuit and district courts of the United, States (ibid., 450). The same jurisdiction was given the courts of Utah (ibid., 456), of Colorado (12 Stat. L., 175), Dakota (ibid., 242), Idaho (ibid., 812), Montana (13 Stat. L., 89), and Wyoming (15 Stat. L., 181). The tenure of the judges in the Territories is fixed “ at four years and until their successors are appointed and qualified” (Rev. Stat., § 1864), being the same as that of the judge in Alaska.

It will be seen that in so far as judicial power is concerned, the provisions of the organicact relating to theDistrictof Alaska do notvary in principle from the laws of the United States governing the Territories.

The case must follow the decision in that of Howard, and the petition is dismissed.  