(dissenting).
I dissent.
After certain monies had been ordered escheated to the Territory of Alaska, the statute limiting the time for bringing action for the recovery of escheated money was shortened from ten to seven years. From the effective date of the amendment the claimant herein had over two years of the seven provided by the amendment within which to bring his action. He did not bring his action within this time but did bring it within the ten year period which was in force at the time of the escheating order. [See main opinion for additional facts.] The Alaskan court held that the statute had run against the action.
The majority have concluded that the trial court’s judgment, though not manifestly erroneous is nevertheless wrong. They believe it to be their duty to follow and apply the holding in Sohn v. Waterson, 17 Wall. 596, 84 U.S. 596, 21 L.Ed. 737, that of three separate methods of applying the statute in similar circumstances, the one which extends the time for the full period of the limitation from the date of the amendment is, or appears to be, the most reasonable. Accordingly, they apply this rule. The cited case, however, does not hold that it is manifestly erroneous to apply either of the other rules, but the opinion calls attention to the fact that the Supreme Court has not hesitated to follow the other rules where actions have arisen in states whose Supreme Courts have adopted them.
It should be kept in mind that the discussion here is relative to a local statute upon a local question which partakes of general legal principles in its application. Federal courts are given jurisdiction of actions arising from such statutes only because of diversity of citizenship of the parties, and when acting within such jurisdiction are in effect substituting for the state courts.
I believe the argument which follows, supplemented and sustained by authorities, as it will be, will clearly show that *529the majority theory of this court’s duty in the premises is erroneous and that the Sohn case, supra, does not control the disposition of this case.
The Supreme Court took occasion in the case of Waialua Agricultural Co. v. Christian, 305 U.S. 91, 108-110, 59 S.Ct. 21, 30, 83 L.Ed. 60, to define the principles to be applied by federal appellate courts in. reviewing decisions of the territorial courts. In that case this court was reversed for applying its “independent judgment” in the absence of manifest error, over the judgment of the Supreme Court of Hawaii. In reversing the decree of this court (Circuit Court of Appeals) and affirming the decree of the Hawaiian court, the Supreme Court recited historical data as to the development of Hawaiian law, which it declared gave present substance to the rule of the Supreme Court “that deference will be paid the understanding of territorial courts on matters of local concern [citing, Matos v. Hermanos, 300 U.S. 429, 430, 432 [57 S.Ct. 529, 81 L.Ed. 728]; Kealoha v. Castle, 210 U.S. 149, 154 [28 S.Ct. 684, 52 L.Ed. 998]; Lewers & Cooke v. Atcherly, 222 U.S. 285, 293 [32 S.Ct. 94, 56 L.Ed. 202]; Ewa Plantation Co. v. Wilder [9 Cir.] 289 F. 664, 669]”. The court went on to state that the legal principles involved in the case partook of general law, as well as of local law. It then declared, 305 U.S. at page 109, 59 S.Ct. at page 30, 83 L.Ed. 60, that: “We see no reason for not applying the rule as to local matters to these circumstances. While the 34th section of the Judiciary Act 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 possible interference. Cf. Swift v. Tyson, 16 Pet. 1, 10 L.Ed. 865; Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. [1188] 114 A.L.R. 1487; Lewers & Cooke v. Atcherley, 222 U.S. 285, 294, 32 S.Ct., 94, 95, 56 L.Ed. 202. It is true that under the appeal statute the lower court had complete power to reverse any rul*530ing of the territorial court on law or fact, Cf., Philippine Sugar Co. v. Philippine Islands, 247 U.S. 385, 390, 38 S.Ct. 513, 514, 62 L.Ed. 1177, but we are of the opinion that this power should be exercised only in cases of manifest error. * * * In so far as the decisions of the Supreme Court of Hawaii are in conformity with the Constitution and applicable statutes of the United States and are not manifestly, erroneous in their statement or application of governing principles, they are to be accepted as stating the law of the Territory. Unless there is clear departure from ordinary legal principles,’the preference of a federal court as to the correct rule of general or local law should not be imposed upon Hawaii.” [Emphasis supplied.]
In the instant case we find the Alaskan court applying a territorial statute where there are three applicable but inconsistent rules therefor. The court adopts one of them and it is not claimed that the one adopted is clearly, or at all erroneous. In the circumstances I conceive it to be our duty to proceed as the Supreme Court has announced this court should have proceeded in the Waialua case, for I believe that the decision of the Alaskan court stands upon the same basis in respect of the question under discussion as that of the Hawaiian court.
As I read the main opinion, the refusal of the majority to apply the rule of the Waialua case is based upon the idea that such rule is one of policy designed to prevent diversity of decision between two independent sets of courts in the same territorial jurisdiction, and that such a policy is not applicable in the instant case, “because there is only one court in Alaska”.1 This conception not only ignores the *531fact that this court’s appellate jurisdiction is practically the same as to both Alaskan and Hawaiian courts, but entirely misses the fundamental statecraft of the Waialua opinion.
The student who cares to delve into more historical fact surrounding the first federal judiciary act than is recited in the case of Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487, or in the Waialua case, supra, will find Warren’s “New Light on the History of the Federal Judiciary Act of 1789”, (37 *532Harvard Law Review, 49, November, 1923) reflecting the fear of leaders and the populace in general that appellate courts removed from the seat of the cause of action might lay too heavy a hand upon the administration of justice. They feared that democracy would lose its vitality by appellate judicial overlordship, and such fear had a profound influence in shaping § 34 of the Judiciary Act, which Act, it may be noted, was the No. 1 Bill of the first session of the United States Senate. The section of the Act referred to is as follows: “The laws of the several states, except where , the constitution, treaties or statutes of the United States shall otherwise require or provide-, shall be regarded as rules of decision in trials at common law in the courts of the United States in cases where they apply.” 1 Stat. 92.
The case of Swift v. Tyson,2 16 Pet. 1, 41 U.S. 1, 10 L.Ed. 865, by limiting the word “laws” as used in the Act to “statutes or positive, fixed or ancient local usage”, assisted by subsequent judicial extension, acted to free the federal courts from much of the local common law, and this caused great confusion as to the proper limitation of federal courts’ power in respect of state matters subject to their adjudication. Thus in non-federal matters the citizen of any state was subject not only to the statute and .decision law of his own state, but at the same time was largely subject to such interpretation of state law as might be declared by a federal judiciary that framed its decisions upon general principles most acceptable to itself. Black & White Taxicab & T. Co. v. Brown & Yellow Taxicab & T. Co., 276 U.S. 518, 48 S.Ct. 404, 72 L.Ed. 681, 57 A.L.R. 426.
However, the Supreme Court in the case of Erie R. Co. w. Tompkins, supra, renounced the theory upon which the case of Swift v. Tyson, supra, rested, saying (304 U.S. *533page 79, 58 S.Ct. page 823, 82 L.Ed. 1188, 114 A.L.R. 1487) that the fallacy underlying the rule there declared, “ * * * rests upon the assumption that there is ‘a transcendental body of law outside of any particular State but obligatory within it unless and until changed by statute.’ ” and (304 U.S. page 78, 58 S.Ct. page 822, 82 L.Ed. 1188, 111 A.L.R. 1487), that, “* * * whether the law of the state shall be declared by its Legislature in a statute or by its highest court in a decision is not a matter of federal concern. There is no federal general common law.” [Italics supplied.]
Thus we have seen that the fundamental error of Swift v. Tyson, supra, was the assumption that there was a national common law applicable by federal courts in state matters which was a separate body of law from the common law applicable by the state courts. And we have also seen the renunciation of such doctrine through Erie R. Co. v. Tompkins, supra, and the supremacy established for state court application of the common law.
It is my conviction that the Waialua case is a natural sequence of the case of Erie R. Co. v. Tompkins, supra and constitutes a practical application of the fundamental democratic principle of our system of self-government. The avoidance of diversity of opinion between two concurrent court systems is but a secondary though commendable “policy”.3
The principle of the case of Erie R. Co. v. Tompkins, supra, which I have just adverted to seems to me to have equal force whether the review in a federal appellate court is of a decision of a territorial court upon a territorial ques*534tion or whether it is of a decision of a federal court upon a state question. It furnishes a reason, or a “policy”, for yielding the utmost deference to the opinion of a territorial court as to the law of such governmental entity. It gives good reason and a logical basis for deferring to the opinion of the constituted local court in the absence of manifest error, rather than the exercising of an independent judgment by a “foreign” court influenced and controlled by'unknowable factors.
Another case referred to by the Supreme Court in the Waialua case [Lewers & Cooke v. Atcherly, 222 U.S. 285, 32 S.Ct. 94, 56 L.Ed. 202] further evidences the “arguments of policy” which influenced the Supreme Court in the Waialua case. In the cited case the U. S. Supreme Court accepted the rule of the Supreme Court of the Ter■ritory of Hawaii both as to a procedural matter and as to a matter of substance. As to the latter determination, it was said (222 U.S. page 294, 32 S.Ct. page 95, 56 L.Ed. 202) : “On this point also there is every reason for attributing great weight to the decision of the court on the spot. It concerns the powers of another earlier local tribunal, and involves obscure local history concerning a time when the forms of our law were just beginning to superimpose themselves upon the customs of the islanders.” [Emphasis supplied.] Thus we find the Supreme Court in the Waialua case harking back to its earlier expressions as to the wisdom of accepting local declarations of the law of a territory — a principle that logically demands extension to all matters of non-federal law once the premise declared in Erie R. Co. v. Tompkins, supra, that “there is no federal general common law” is accepted.
What influence the colorful history of Alaska through its several dramatic periods has had upon the common law of that autonomous territory is not ours, as an appellate court, to say. It is not ours to require the adoption by Alaska’s local courts of a certain ruling because we prefer *535it, for. such preference may fail to take the local influence into account.
To my mind it is clear that the principle laid down in the Waialua case is applicable to the Territory of Alaska as well as to the Territory of Hawaii and that it is our duty to so apply it. Since the decision of the trial court in the instant case, in the full light of the circumstances, does not constitute a clear departure from ordinary legal principles, our preference as to the rule to be applied should not be imposed upon Alaska. The judgment of the District Court should be affirmed.
There are four judicial districts in Alaska, each of which is presided over by a district judge, and these courts have original jurisdiction over both local and federal matters. There is no Supreme Court in Alaska over these District Courts. There are in Hawaii, territorial trial courts with local jurisdiction, and a Supreme Court over them, and also a District Court with similar jurisdiction as continental United States District Courts. The United States Circuit Court of Appeals for the Ninth Judicial Circuit has *531appellate jurisdiction over the Supreme Court and over the District Court.
Although the statute under consideration in the Coquitlam case, cited in the main opinion, (163 U.S. 346, 16 S.Ct. 1117, 41 L.Ed. 184) was different from the- one governing the instant case, I think the reasoning used by the Supreme Court in that case is good in our case. That is, that the District Courts of Alaska are not only in fact the courts of last resort in the territory, hut are the supreme courts of the territory for the purposes of appeal.
The present applicable statute [28 U.S.C.A. § 225] is as follows:
“(a) Review of final decisions. The circuit courts of appeal shall have appellate jurisdiction to review by appeal final decisions—
“First. In the district courts, in all eases save-where a direct review of the decision may be had in the Supreme Court under section 345 of this title.
“Second. In the United States District Courts for Hawaii and for Puerto Rico, in all cases.
“Third. In the District Court for the District of Alaska, or any division thereof, and in the District Court of the Virgin Islands, in all cases; and in the United States District Court for the District of the Canal Zone in the cases and modes prescribed in sections 61 and 62, title 7, Canal Zone Code (48 Stat. 1122).
“Fourth. In the Supreme Courts of the Territory of Hawaii and of Puerto Rico, in all cases, civil or criminal, wherein the Constitution or a statute or treaty of the United States or any authority exercised thereunder is involved; in all other civil eases wherein the value in controversy, exclusive of interests and costs, exceeds 85,000, and in all habeas corpus proceedings.
“Fifth. In the United States Court for China, in all cases. As amended Jan. 31, 1928, c. 14, § 1, 45 Stat. 54; May 31, 1935, c. 160, 49 Stat. 313; June 20, 1938, c. 526, 52 Stat. 779. * * * ”
I can see no merit whatever in the theory that our court [United States Circuit Court of Appeals for the Ninth Judicial Circuit] is in effect the Supreme Court of Alaska for territorial local matters, - — a conclusion that must follow from the majority opinion.
For criticism and comment as to Swift v. Tyson, supra, see Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487, and exhaustive notes thereto.
The historical data of the Waialua case would be purposeless under the construction given it by the majority opinion. I do not perceive that such historical recital has any bearing on the question of the advisability of preventing a conflict between two sets of courts. I think it also well worth noting, that nowhere in the Waialua ease is reference made to any other court of the Territory of Hawaii than the Supreme Court thereof — a peculiar circumstance indeed if the opinion is to be interpreted as resting on the existence; of two independent and conflicting courts in that Territory.