Carscadden v. Territory of Alaska

HANEY, Circuit Judge.

Appeal is taken from a judgment dismissing with prejudice appellant’s claim to property escheated to the Territory of Alaska, after demurrer had beén sustained to the petition and appellant’s refusal to plead further.

One Sarah Carscadden, in 1903, was committed to an asylum for the insane. Her son, who is the appellant, left the Territory of Alaska in 1911, and has been absent therefrom since that time.

By § 1, Ch. 40, Alaska Session Laws 1921, it was declared that: “When any person shall die intestate, without heirs, leaving real or personal property in the Territory, the same shall escheat to and become the property of the territory.” By § 3, it was provided that: “Whenever the administrator of any estate shall find that his intestate left no heirs, or shall, after due search fail to find that his intestate left heirs, such facts shall be certified by the administrator to the probate court, and it shall then be the duty of the latter, as soon as the administrator’s final account is settled, to enter a decree adjudging that all the balance of the estate, whether real or personal property, has escheated to and become the property of the Territory.” See Compiled Laws of Alaska, 1933, §§ 2895, 2897. This controversy revolves around § 7 of the 1921 act, which provided in part: “Within ten years after the judgment in any proceeding had under this act, a person not a party or privy to such proceeding may file a petition in the District Court showing his claim or right to the property or the proceeds thereof, and that he had no knowledge of the proceeding' provided for in the foregoing sections. * * * All persons who fail to appear and file their petitions within the time limited by law are forever barred * * Other parts of the section, omitted from the above, provide other steps of procedure enabling the claimant to obtain the escheated property.

On July 13, 1926, Sarah Carscadden died in a sanitarium at Portland, Oregon, leaving personal property in the Territory of Alaska amounting to $2,278.83. An administrator of her estate was appointed in the territory, and on October 1, 1928, the probate court there made an order declaring that the property then in the estate, amounting to $1,921.88, had escheated to the territory, and such amount was paid to the proper territorial officer.

By the act approved May 3, 1933, effective August 1, 1933- (Ch. 95, Alaska Session Laws, 1933) the word “seven” was substituted for the word “ten” appearing in § 7 of the 1921 act, but the remainder of § 7 as quoted above remained unchanged. Compiled Laws, of Alaska, 1933, § 2901.

Appellant believed that the deceased was still living and confined to an asylum.for the insane, until notified of her death in August, 1935, and on February 5, 1936, first learned of the probate proceedings. On March 28, 1936, appellant filed against appellee his petition “In the District Court for the Territory of Alaska”, alleging the above facts. It was subsequently amended to include the allegation that appellant was not a “party or privy” to the mentioned probate proceedings.

It can be seen that the petition was filed within ten, but not seven, years after the date of the order declaring the escheat, and within two years, one month, and twenty-seven days after the effective date of the amendment made in 1933., Appellee’s demurrer to the amended petition, on the ground that such petition .was not filed within the time limited by Compiled Lav/s of Alaska, 1933, § 2901, was sustained. Appellant declined to plead further, and judgment of dismissal, with prejudice, was entered, from which this appeal is taken.

It has often happened that a statute of limitations in effect when a cause of action accrues, is, before suit is commenced on such cause of action, amended, and the time, within which such suit might be brought,'is shortened. Such amendment is valid as to existing causes' of action, if it leaves a reasonable time after its enactment within which suit on such causes of action may be brought,¹ but if not, it is invalid.²

To determine whether or not a subsequent statute is designed to affect causes of action then accrued, is the first question to be considered. Regarding that question it is said in Sohn v. Waterson, 84 U.S. 596, 17 Wall. 596, 599, 21 L.Ed. 737: “A statute of limitations may, undoubtedly, have effect upon actions which have already accrued as well as upon actions which accrue after its passage. Whether it does so or not will depend upon the language of the act, and the apparent intent of the legislature to be gathered therefrom. When a statute declares generally that no action, or no action of a certain class, shall be brought except within a certain limited time after it shall have accrued, the language of the statute would make it apply to past actions as well as to those arising in the future. But if an action accrued more than the limited time before the statute was passed a literal interpretation of the statute would have the effect of absolutely barring such action at once. It will be presumed that such was not the intent of the legislature. Such an intent would be unconstitutional. To avoid such a result, and to give the statute a construction that will enable it to stand, courts have given it a prospective operation. In doing this, three different modes have been adopted by different, courts. * >1= * ” three modes are set out in the opinion.

The first method is to construe the new statute as applicable only to causes of action arising after enactment of such statute.³ The objection to this rule is said to be that it leaves all causes of action, which arose prior to the enactment of the new statute, without any governing statute of limitations whatever “which, it is presumed, could not have been intended”. Sohn v. Waterson, 84 U.S. 596, 17 Wall. 596, 599, 21 L.Ed. 737.

The second method is to construe the new statute to include causes of action arising after enactment of the new statute and existing causes of action for which a reasonable time still remained under the new statute within which suit might be brought. The objection to this method is said to be that it “does not seem to be founded on any better principle than the former". Sohn v. Waterson, supra, 17 Wall. 600, 21 L.Ed. 737.

The third method is to construe the statute as including causes of action arising both prior and subsequent to the enactment of the statute, but as to the former, the time specified in the new statute is calculated from the effective date of such statute.⁴ This method was approved in Sohn v. Waterson, supra, and had previously been approved in Ross v. Duval, 38 U.S. 44, 13 Pet. 44, 62, 10 L.Ed. 51, and Lewis v. Lewis, 48 U.S. 776, 7 How. 776, 779, 12 L.Ed. 909. It has since been consistently followed.⁵

Appellee, relies on the cases in which it is stated the subsequent statute may apply to existing causes of action if there is a reasonable time left for commencing suit on such causes of action.⁶ These cases do not approve the second method of construction, and are not in point. They either consider statutes which expressly were applicable to existing causes of action, but which were given time within which suit might be brought, or they considered state statutes which had been so construed by the state court. In none of them was there_any question calling for construction, because the statute was clear, or had been so construed by the paramount authority of the state.

Here, notwithstanding appellant had a reasonable time under the new statute within which to bring his suit, the second method should not have been applied, because it was held objectionable in Sohn v. Waterson, supra. The third method is applicable and controlling, and therefore appellant had seven years from the effective date of the 1933 amendment to bring the instant action.

The foregoing conclusion is reached by using our independent judgment. Whether or not we may do so, is the paramount question to be decided.

In 1874, the Supreme Court of the Territory of Montana made a decision construing its code of practice. It appeared that the same question had “been decided differently by different State courts under precisely the same code of practice”. Upon appeal, the Supreme Court of the United States held that it “should, in this conflict o£ authority, adopt the ruling of the Supreme Court of Montana in the consideration of it”. Sweeney v. Lomme, 89 U.S. 208, 22 Wall. 208, 213, 22 L.Ed. 727. The doctrine⁷ grew until it was declared in Matos v. Hermanos, 300 U.S. 429, 432, 57 S.Ct. 529, 81 L.Ed. 728, that the federal courts must give “due deference” to the decisions of the territorial courts on local questions and sustain them unless the federal courts entertained “a sense of clear error committed”. At that time the doctrine of Swift v. Tyson, 41 U.S. 1, 16 Pet. 1, 10 L.Ed. 865, prevailed, and determination of whether a question was “general” or “local” evidently was to be determined by the rule announced in that case.

The first act of Congress relating to Alaska was the Act of July 27, 1868 (15 Stat. 240). It extended certain laws of the United States to the territory of Alaska, and provided that “any district court of the United States in California or Oregon, or * * * the district courts of Washington * * * shall have original jurisdiction, and may take cognizance of all cases arising under this act and the several laws hereby extended over the territory * * Section 7. No change in this respect was made by the Revised Statutes. See §§ 1954 — 1976.

The Act of May 17, 1884 (23 Stat. 24) authorized the appointment of four commissioners for the district of Alaska, who were authorized to “exercise all the duties and powers, civil and criminal, now conferred on justices of the peace under the general laws of the State of Oregon” and other duties and powers. Section 5. There was also created a district court for the district of Alaska “with the civil and criminal jurisdiction of district courts of the United States, and the civil and criminal jurisdiction of district courts of the United States exercising the jurisdiction of circuit courts, and such other jurisdiction, not inconsistent with this act, as may be established by law”. Section 3. It was provided that “appeal shall lie” to the district court from the judgments of the commissioners; that writs of error in criminal cases “shall issue” to the district court from the United States circuit court for the district of Oregon; and that the final judgments or decrees of the circuit and district court “may be reviewed” by the Supreme Court of the United States. Section 7.

Nothing in any of the provisions indicated any intention that any of the courts were not to exercise their independent judgment. However, the law of the district was declared to be “the general laws of the State of Oregon” insofar as applicable and not in conflict with the laws of the United States.

In M’Allister v. United States, 141 U.S. 174, 11 S.Ct. 949, 953, 35 L.Ed. 693, 1 Alaska Fed. 189, it was held that the district court in Alaska was not one “óf the courts of the United States” within the meaning of Rev.St. § 1768 which authorized the President to suspend any civil officer “except judges of the courts of the United States”. To the same effect: In re Cooper, 143 U.S. 472, 494, 12 S.Ct. 453, 36 L.Ed. 232, 1 Alaska Fed. 242.

The Act of March 3, 1891 (26 Stat. 826) created the United States Circuit Courts of Appeals empowering them “to review by appeal or by writ of error final decision in the district court and the existing circuit courts”. Section 6, 28 U.S.C.A. § 225. They were also given “jurisdiction, by writ of error or appeal, to review the judgments, orders, and decrees of the supreme courts of the several Territories * * Section 15. In Steamer Coquitlam v. United States, 163 U.S. 346, 16 S.Ct. 1117, 41 L.Ed. 184, 1 Alaska Fed. 457, it was held upon certificate from this court that there was no jurisdiction to review the final judgments or decrees of the Alaska court under § 6, because that section referred to “constitutional courts” and the district court of Alaska “was a legislative court”. Steamer Coquitlam v. United States, supra, 163 U.S. 351, 16 S.Ct. page 1119, 41 L.Ed. 184, 1 Alaska Fed. 457. However, it was held that § 15 of the act authorized review of such judgments and decrees because the district court of Alaska was “the court of last resort, within the limits of that territory” and was “in every substantial sense, the supreme court of that territory”. Steamer Coquitlam v. U. S., supra, 163 U.S. 352, 16 S.Ct. page 1119, 41 L.Ed. 184, 1 Alaska Fed. 457.

The Act of March 3, 1899 (30 Stat. 1253) which was an act to provide a code of criminal procedure in the District of Alaska, provided that the “common law of England as adopted and understood in the United States shall be in force in said District, except as modified by this Act”. Title I, § 218. It was further provided that “appeals and writs of error in criminal actions may be taken and prosecuted from the decisions and judgments of the district court for the District of Alaska to the Supreme Court of the United States, or to the circuit court of appeals for the ninth circuit” as there provided. Title II, § 202.

The Act of June 6, 1900 (31 Stat. 321) changed the judicial system. It established a district court of three divisions, “which shall be a court of general jurisdiction in civil, criminal, equity, and admiralty causes”. Title I, § 4; see also Title II, § 699. Provisions for appeals to the Supreme Court of the United States were made, and this court was specifically authorized “to review by writ of error or appeal the final judgments, orders, of the district court” as there provided. Title II, § 504. It was further provided : “The Attorney-General may, from time to time, make such rules and regulations, not in conflict with law, as he may deem necessary to insure the efficient administration of the law and to avoid conflicts of jurisdiction or of officials in the district.”

The Act of March 3, 1909 (35 Stat. 838) changed the court so that it consisted of four divisions with four judges. Section 2, 48 U.S.C.A. § 101.

The Act of August 24, 1912 (37 Stat. 512) established the Territory of Alaska with a local governing body. It was provided “that all the laws of the United States heretofore passed establishing the executive and judicial departments in Alaska shall continue in full force and effect until amended or repealed by Act of Congress; that except as herein provided all laws now in force in Alaska shall continue in full force and effect until altered, amended, or repealed by Congress or by the legislature * * * the legislature shall pass no law depriving the judges and officers of the district court of Alaska of any authority, jurisdiction, or function exercised by like judges or officers of district courts of the United States”. Section 3, 48 U.S. C.A. §§ 23, 80.

United States Code, Title 28, § 225(a) as amended, 28 U.S.C.A. § 225(a), provides:

“The circuit courts of appeal shall have * * * jurisdiction to review by appeal final decisions — * * *

“Third. In the District Court for the District of Alaska, or any division thereof * * *

“Fourth. In the Supreme Courts of the Territory of Hawaii * *

With respect to the decisions of the Supreme Court of the Territory of Hawaii, the Supreme Court of the United States had given them due deference in Ballentyne v. Smith, 1907, 205 U.S. 285, 291, 27 S.Ct. 527, 51 L.Ed. 803, and in Kealoha v. Castle, 210 U.S. 149, 154, 28 S.Ct. 684, 52 L.Ed. 998. When jurisdiction of appeals from that territorial court was extended to this court, in 1915, we were, of course bound by those decisions. Hawaii County v. Halawa Plantation, Limited, 9 Cir., 1917, 239 F. 836, 839; In re Bishop’s Estate, 9 Cir., 250 F. 145, 147. The rule at that time, however, concerned only decisions on “local” questions, and the fact, that our power to “review” such decisions was not limited by anything in the statute, was not considered previous to Waialua Agricultural Co. v. Christian, 305 U.S. 91, 109, 59 S.Ct. 21, 30, 83 L.Ed. 60. The Supreme Court’s decision in that case laid down a rule which has the effect of limiting our power to “review” decisions of the territorial court on “general or local law” to “cases of manifest error”. That rule has the same effect as a legislative amendment.

The basis for that rule was stated to be: “While the 34th section of the Judiciary Act [28 U.S.C.A. § 725] is not applicable to territories, the arguments of policy in favor of having the state courts declare the law of the state are applicable to the question of whether or not territorial courts should declare the law of the territories with the least posv sible interference”. These arguments of policy, as set out in Erie R. Co. v. Tompkins, 304 U.S. 64, 74-77, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487, all resulted from, and were based on, the diversity of opinions between the federal courts and the state courts,. over which there was no single control. The control over the territorial court and the federal court, by Congress and this court, was apparently not considered a sufficient safeguard against conflicting decisions of the territorial court and the federal court. With respect to Alaska, the circumstance of a conflict between decisions of the territorial court and a federal court does not confront us, because there is only one court in Alaska. For these reasons, we see no basis⁸ for the application of a similar restriction of the statute with respect to the Alaska court.

The Act of May 24, 1935 (49 Stat. 289, 48 U.S.C.A. § 101a) amended 18 U.S.C.A. § 641 which provided for the discharge of indigent convicts by “any commissioner of the United States court in the district where he is imprisoned”. The amendment was that the “District Court of the Territory of Alaska shall be deemed a court of the United States * * * within the intent and meaning of this section”. We think that the amendment did not make such court a constitutional court, enabling us to exercise our independent judgment merely because of the amendment. Mookini v. United States, 303 U.S. 201, 205, 58 S.Ct. 543, 82 L.Ed. 748.

Appellee contends that the district court acts in a dual capacity (1) for administering local laws; and (2) for administering federal laws. While we agree with that statement, we think that actually the question is decided by the statutes conferring jurisdiction on this court to review the decisions of the district court. The Supreme Court of the United States has never declared the “manifest error” rule applicable to Alaska. The settled practice in this court has been to exercise an independent judgment with respect to both general and local questions, .probably because of the chance of conflicting decisions by the Alaska judges, without other remedy in the courts to avoid the conflict. In view of this settled practice we think we should continue to exercise our independent judgment with respect to appeals from the District Court of the Territory of Alaska, on all questions, whether federal, general or local, until required to “abdicate” from that practice by a statute or a decision of the Supreme Court of the United States to the contrary. Compare: White v. United States, 305 U.S. 281, 292, 59 S.Ct. 179, 83 L.Ed. 172.

Exercising our independent judgment on the question presented herein, we hold that the court below misapplied the Alaska statute in question as above stated.

Reversed.

1 Koshkonong v. Burton, 104 U.S. 668, 26 L.Ed. 886; Vance v. Vance, 108 U.S. 514, 2 S.Ct. 854, 27 L.Ed. 808; Gilfillan v. Union Canal Co., 109 U.S. 401, 404, 3 S.Ct. 304, 27 L.Ed. 977; McGahey v. Virginia, 135 U.S. 662, 701, 705, 10 S.Ct. 972, 34 L.Ed. 304; Wheeler v. Jackson, 137 U.S. 245, 255, 11 S.Ct. 76, 34 L.Ed. 659; Turner v. New York, 168 U.S. 90, 94, 18 S.Ct. 38, 42 L.Ed. 392; Saranac Land, etc., Co. v. Comptroller of N. Y., 177 U.S. 318, 20 S.Ct. 642, 44 L.Ed. 786; Kentucky Union Co. v. Kentucky, 219 U.S. 140, 156, 31 S.Ct. 171, 55 L.Ed. 137; Canadian Northern Ry. Co. v. Eggen, 252 U.S. 553, 562, 40 S.Ct. 402, 64 L.Ed. 713.

2 Sturges v. Crowninshield, 17 U.S. 122, 4 Wheat. 122, 207, 4 L. Ed. 529; Edwards v. Kearzey, 96 U.S. 595, 603, 24 L.Ed. 793; Wilson v. Iseminger, 185 U.S. 55, 62, 22 S.Ct. 573, 46 L.Ed. 804; Ochoa v. Hernandez, 230 U.S. 139, 33 S.Ct 1033, 57 L.Ed. 1427.

3 An example of this method may b.e found in Murray v. Gibson, 56 U.S. 421, 15 How. 421, 14 L.Ed. 755, where a state court so construed the state statute. Compare: U. S. Fidelity Co. v. U. S., for Use of Strothers Wells Co., 209 U.S. 306, 28 S.Ct. 537, 52 L.Ed. 804.

4 The statute considered in Mitchell v. Clark, 110 U.S. 633,639, 4 S.Ct. 170, 312, 28 L.Ed. 279, expressly so provided.

5 Union Pac. R. R. v. Laramie Stock Yards, 231 U.S. 190, 34 S.Ct. 101, 58 L.Ed. 179; Union Pac. R. R. Co. v. Snow, 231 U.S. 204, 34 S.Ct. 104, 58 L.Ed. 184; Union Pac. R. R. Co. v. Sides, 231 U.S. 213, 34 S.Ct. 107, 58 L.Ed. 189; United States v. Morena, 245 U.S. 392, 38 S.Ct. 151, 62 L.Ed. 359. Compare: Chapman v. County of Douglas, 107 U.S. 348, 358, 2 S.Ct. 62, 27 L.Ed. 378.

6 See the cases in note 1.

7 In Northern Pacific Railroad v. Hambly, 154 U.S. 349, 361, 14 S. Ct. 983, 38 L.Ed. 1009, it was said that the territorial court’s decision was not obligatory.

8 Historical treatment of territories of the United States does not disclose an argument for or against the application of the “manifest error” rule to Alaska. See: Resolution of the Continental Congress on October 10, 1780 as mentioned in Ex parte Morgan, D.C.Ark., 20 F. 298, 304 and Bond, The Civilization Of The Old Northwest (1934), p. 7; Articles of Confederation, which contained no provision regarding territories generally; the ordinance of 1784, as stated in Clinton v. Englehbrecht, 80 U.S. 434, 13 Wall. 434, 441, 20 L.Ed. 659; the Northwest Ordinance of 1787; Art. IV, § 3 of the Constitution, U.S.C.A.; 1 Stat. 50, 123, 549; 2 Stat. 58, 245, 283. Langdell in The Status Of, Our New Territories (1899), 12 Harv.L.Rev. 365, 379, concludes that the federal courts have the duty of exercising judicial powers with respect -to territories. It has never been asserted that the general judicial power is limited to cases of “manifest error”.