(dissenting).
I cannot concur in the decision that the Act of Congress conferring jurisdiction on the District Courts of the United States of suits between citizens of the District of Columbia and citizens of the several states is violative of constitutional provisions or transcends the power of Congress under the Constitution. The securing of justice for its people is one of the first duties of government. With respect to domestic matters this duty is discharged through the maintenance of domestic courts; where justice as against citizens of other countries is sought, the citizen is not left to the mercy of foreign courts but may call upon his country to protect him through its diplomatic service. Under the dual sovereignty of our federal union, the courts of each of *537the states furnish a foreign jurisdiction so far as the citizens of other states are concerned, for every°state court is agency of a quasi sovereign power to which citizens of the other states of the Union owe no allegiance and over which they have no control. The states, however, as members of the Union, are denied the power of independent nations to pursue justice in behalf of their citizens through diplomatic channels against citizens of other states; and, in lieu of this, the Constitution provides courts of the federal government, the government of all the people of the country, to administer justice in cases where citizens of different states are involved, so that neither party may be required to seek justice from the state of his adversary. This reasoning I understand to lie at the basis of the jurisdiction of the federal courts in diversity cases; and, while I do not think that the District of Columbia is a state within the diversity clause of Art. Ill of the Constitution, I cannot believe that the citizens of the capital city of the Republic have been left in such position by the Constitution that they cannot be afforded the protection with respect to this fundamental matter that is given all other citizens.2
It is well settled that the District of Columbia is not a state within the meaning of the Constitution; and, if the power of Congress to vest jurisdiction in the federal courts were limited to that which may be exercised under Art. Ill, I would think the legislation here involved to be beyond its power. It is equally well settled, however, that “Article 3 does not express the full authority of Congress to create courts”. Ex-parte Bakelite Corporation, 279 U.S. 438, 449, 49 S.Ct. 411, 412, 73 L.Ed. 789. Congress may vest judicial power in courts to hear litigation affecting citizens of the District of Columbia; and I see nothing in the Constitution to forbid such power being vested in the ordinary federal courts created under Art. III. It has been decided that Congress may vest in courts created under art. 1 sec. 8 the jurisdiction which it is authorized to confer under Art. III. O’Donoghue v. United States, 289 U.S. 516, 53 S.Ct. 740, 77 L.Ed. 1356. On the same principle it may vest in courts created under Art. Ill the judicial power, but of course not the non judicial power, which it is authorized to confer by Art. 1 sec. 8.
,No one would dispute, I think, the power of Congress to create courts to hear any litigation to which a citizen of the District of Columbia is a party. Such power is inherent in the full power of sovereignty exercised over the District, a power which combines that of the general government and the states. O’Donoghue v. United States, supra; Stoutenburgh v. Hennick, 129 U.S. 141, 147, 9 S.Ct. 256, 32 L.Ed. 637. It seems equally clear that Congress could authorize such courts to sit and their process to run anywhere in the country. If this can be done, I see no reason why Congress cannot combine the jurisdiction of such courts with that of the ordinary federal courts already created under Art III. Where the question of the validity of an act of Congress -is raised, the question is not under what provision of the Con*538stitution it has purported to act, but whether, when all provisions of the Constitution are considered, it has transcended the total of the powers granted it by the people. In this case I do not think it can be said that Congress has transcended its powers; and I say this without reference to the well settled doctrine that an act of Congress may not be declared unconstitutional unless its violation of constitutional provisions is established beyond reasonable doubt.
It is suggested that the power to create courts for citizens of the District is limited geographically to the District; but there is nothing in the Constitution from which any such limitation can be spelled out. It should be noted that the power of Congress is not merely to exercise exclusive legislation over the District, but also to make all laws necessary and proper to that end, which certainly would seem to authorize legislation necessary to secure a proper administration of justice for its citizens. See Art. I sec. 8(17) and (18). The power to legislate for the citizens of the District, as we have seen, is full legislative power, combining that possessed by Congress and a state legislature and, except for express limitations contained in the Constitution itself, analogous to the full power possessed by the Parliament of England. Certainly, if Congress is not limited by the territorial boundaries of the country in creating courts to provide a proper administration of justice for citizens resident or doing business in foreign countries, such as consular courts (In re Ross, 140 U.S. 453, 11 S.Ct. 897, 35 L.Ed. 581) or the United States Court for China (Ex parte Bakelite Corp., 279 U.S. 438, 451, 49 S.Ct. 411, 73 L.Ed. 789), there is no reason why it may not provide judicial facilities for citizens of the District of Columbia beyond the limits of the District, for the power to legislate for their protection in this regard is just as clearly given as the power to legislate for citizens of the country resident or trading abroad. That the protection is exercised in this rather than in a foreign country would seem to support rather than to negative the right to exercise it.
The fact that Congress may not confer on the District Courts jurisdiction of suits in which citizens of states are involved unless there is diversity of citizenship, furnishes no argument that the power does not exist with respect to suits involving citizens of the District; for the only authority in the former case to vest judicial power in the courts arises under the provision relating to diversity of citizenship, whereas in the latter case full power is-granted to legislate for citizens of the District. That the diversity clause is construed so as not to apply to citizens of the District is an added reason for construing the provisions of Art. I sec. 8 as authorizing legislation which would make the federal courts available to them; for it is not reasonable to suppose that the founders of our government intended that it be powerless to afford the protection of its own judiciary to citizens of its capital city.
More than a century ago Chief Justice Marshall pointed out what he thought was the extraordinary situation that, under the Judiciary Act, the District Courts of the United States, which were open to aliens and to citizens of every state in the Union, should be closed to citizens of the nation’s capital. Since then the capital has become a large and florishing city with citizens who trade and travel and do business throughout the Union. The right to invoke the jurisdiction of the only sovereignty to which they owe allegiance and to which they can look for protection has become an increasingly important one and has at length been recognized by Congress in the passage of legislation, which opens the federal courts to them on the same conditions that these courts are open to other citizens of the Republic. For the reasons which I have endeavored to set forth, I do-not think this salutary legislation beyond the power of Congress, when the provisions of Art. I sec. 8, as well as the Third Article of the Constitution, are considered.
The question involved is not a theoretical one, but one of great practical significance. To deny to a citizen of the District the right to resort to the federal courts, means that he must seek justice in a court of the state of his adversary, where he will find, in many of the states, that trial by jury has been stripped of many of its safeguards and the judge has been denied the common law powers necessary to the proper administration of justice. See article by Judge Merrill E. Otis, Journal of American Judicature Society, vol. 21, p. 105 et seq. To require a non resident to try his case in such a tribunal is not only to turn him over to the tender mercies of a local jury, without power in the presiding judge to counteract the appeals to prejudice of local counsel, it is also to deny to him the sort of trial by jury which as a citizen of the United States he is entitled to have in the federal courts. Herron v. Southern Pac. Ry. Co., 283 U.S. 91, 95, 51 S.Ct. 383, 75 L.Ed. 857; Patton v. United States, 281 U.S. 276, 288, 50 S.Ct. 253, 74 L.Ed. 854, 70 A.L.R. 263; Capital Traction Co. v. Hof, 174 U.S. 1, 13-16, 19 S.Ct. 580, 43 L.Ed. 873; United States v. Philadelphia &. R. R. Co., 123 U.S. 113, 114, 8 S.Ct. 77, 31 L.Ed. 138; United States v. Fourteen Packages of Pins, 1 Gilp. 235, 25 Fed.Cas. 1182, 1189, No. 15,151.