Richard A. Woodring v. United States

304 F.2d 308

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 24, 1962
• Docket: 17094
• Status: Published

Opinions

CHAMBERS, Circuit Judge.

Someone is guilty of “holding up” the Airport Road Branch of the Alaska National Bank of Fairbanks on the afternoon of January 12, 1959, and escaping with about fourteen thousand dollars in cash. Woodring, under one indictment has been found guilty of several offenses in connection with that occurrence. The direct evidence was weak of Wood-ring’s guilt, but there was probably enough circumstantial evidence to support the jury verdict. However, we do not reach that question because of our view of the threshold jurisdictional question.

The executive proclamation ¹ pursuant to the Enabling Act ² of July 7, 1968, establishing Alaska as the 49th State of the Union, was issued and effective January 3, 1959, nine days before the robbery.

By Section 18 ³ of the Enabling Act, the old federal territorial court and its four divisions were continued for a period of three years subject to earlier termination on conditions. Deeming the conditions met, the President on February 20,1960, by proclamation,⁴ terminated the federal territorial court, a year, one month and 17 days after statehood.

The trouble here starts with Woodring being indicted- in the territorial district court, fourth division, on March 11, 1969, two months and eight days after statehood. And, there he entered his pleas. Then he was tried in the United States District Court for the District of Alaska in June, 1960. Doggedly Wood-ring has resisted at all pertinent times the jurisdiction of the United States District Court for the District of Alaska to try him.

We hold that the judgment must be reversed on the narrow ground that the Enabling Act did not provide for the transfer of cases such as this to the United States District Court for the District of Alaska. Section 15, as pertinent, reads as follows:

“All causes pending or determined in the District Court for the Territory of Alaska at the time of the admission of Alaska as a State which are of such nature as to be within the jurisdiction of a district, court of the United States shall bé trans* ferred to the United States District Court for the District of Alaska for final disposition and enforcement in the same manner as is now provided by law with reference to the judgments and decrees in existing United States district courts. All other causes pending or determined in the District Court for the Territory of Alaska at the time of the admission of Alaska as a State shall be transferred to the appropriate State Court of Alaska. * * * ”

While courts of general jurisdiction normally have the powers they ought to have, still the rule of “the inclusion of one excludes the other" would have to search long to find a better place to be applicable. Provision was made only for transfer of causes to the United States District Court for the District of Alaska which were pending on the date of admission (January 3, 1969).⁵ To have this Section 16 carry over to federal criminal cases filed after January 3, 1969, in the Territorial Court, in our view would hand-make language which is not there. To put the language there would be a case of doing what one would have done if he had had the thought to do it at the critical time.

Our opinion is fortified by our reading of Benner v. Porter, 9 How. 235, 13 L.Ed. 119, and Forsyth v. United States, 9 How. 571, 13 L.Ed. 262. While the decisions stand on a number of grounds, we note the importance attached by the Supreme Court to the lack of transfer provision in the Enabling Act for the admission of Florida on March 3, 1845, 5 Stat. at L. 542, and the federal statute establishing the United States District Court for the District of Florida March 3, 1845, 5 Stat. at L. 788. See the Benner opinion at page 245 and the Forsyth case at page 577. (Congress did not authorize the continuance of the Florida territorial court when statehood was granted and the Benner case held it was not continued by implication.)

In holding as we do, we appreciate that we must probably let a guilty man go; that we leave unresolved many questions and, perhaps, create new ones. But we cannot render an advisory opinion. Questions which we do not reach include:

1. Suppose Woodring had never objected to the jurisdiction of the new United States District Court for the District of Alaska. That is, did the court have naked power to act — if unchallenged ?

2. Suppose this were a civil case instead of a criminal case with the same dates involved. What would we do ?

3. Was there a United States District Court for the District of Alaska in existence without a judge or other staff from January 3, 1959, to the date Judge Walter H. Hodge qualified on February 19,1960, as the first constitutional United States District Judge for the District of Alaska ?

4. What about essentially federal criminal or civil cases that may have been tried or otherwise disposed of by the interim court, the territorial court continued as aforesaid, between January 3, 1959, and February 20,1960?

As in Parker v. McCarrey, we find that the last minute addition of Section 18 of the Enabling Act did not search far enough back through the act to correct inconsistencies. It would be easy enough to criticize the draftsman of the amendment almost three years later after calm thought, but he may have done very well in the exigency of the moment with which he was faced in 1958.

However, we do point out that here was a case where the solution was easily at hand on February 20, 1960. Although the opinion in Parker v. McCarrey, 9 Cir., 268 F.2d 907, did not reach in any way the Woodring problem, still trouble was forecast in the briefs presented in that case. The obvious course on February 20, 1960, was to play safe and re-indict Woodring and others similarly situated.

Judgment reversed.

1 . Proclamation No. 3269, 24 F.R. 81.

2 . Public Law 85-508, 72 Stat. 339, 48 U.S.C.A. preceding section 21.

3 . Section 18 provided as follows:

“Jurisdiction of District Court; termination date. The provisions of the preceding sections with respect to the termination of the jurisdiction of the District Court for the Territory of Alaska, the continuation of suits, the succession of courts, and the satisfaction of rights of litigants in suits before such courts, shall not be effective until three years after the effective date of this Act, unless the President, by Executive order, shall sooner proclaim that the United States District Court for the District of Alaska, established in accordance with the provisions of this Act, is prepared to assume the functions imiro-ed upon it. During such period of three years or until such Executive order is issued, the United States District Court for the Territory of Alaska shall continue to function as heretofore. The tenure of the judges, the United States attorneys, marshals, and other officers of the United States District Court for the Territory of Alaska shall terminate at such time as that court shall cease to function as provided in this section.”

4 . Executive order No. 10,867, 25 F.R. 1584.

5 . The presiding judge of the Fourth Division of the United States District Court for the Territory (then State) of Alaska on February 19, 1960, apparently as one of his last acts, and with considerable acuteness of the statutes and proclamations involved, issued a general transfer order, as an “attempted compliance” with Public Law 85-508, and “particularly” with respect to “Section 15 thereof” in pertinent part as follows:

“IT IS HEREBY ORDERED that all causes pending or determined in the above-entitled courts for the Second and Fourth Judicial Divisions at the time of the admission of Alaska as a State, * * * which, at the time of said admission of Alaska as a State, to-wit, at one minute past noon on the third day of January, 1959, at the City of Washington, District of Columbia, were of such nature as to then be within the jurisdiction of a district court of the United States, for which purposes the above-entitled Court is not to be so construed or considered, are hereby transferred to the United States District Court for the District of Alaska; * * *

“IT IS FURTHER ORDERED that the above and foregoing Order take effect at one minute prior to the issuance hereafter of that Executive Order provided for in Section 18 of Public Law 85-508.”

Thus, it may be seen that no effort was made to transfer cases started after January 3, 1960. Apparently, he read the Enabling Act as this court does.