subject to the sovereign dominion thereof." In view of this language I do not see how it is possible to escape the conclusion that there was a plain incorporation by Congress of these islands and an extension of sovereignty over them. Notwithstanding this, however, we held that the conviction of one, who between the date of the Newlands resolution and the date of establishing a civil government, had been tried on information and convicted by a non-unanimous jury, was legal, though not in compliance with the Fifth and Sixth Amendments to the Constitution, upon the ground that the Constitution was not formally extended to them until the Territory was organized, June 14, 1900. 31 Stat. 141, sec. 5. This case shows the impossibility of applying the doctrine of incorporation without an accurate definition of the term. Hitherto we have been content to divide our Territories into the organized and unorganized; but now we are asked to introduce a new classification of "incorporated" Territories without attempting to define what shall be deemed an incorporation. The word appears to me simply to introduce a new element of confusion and to be of no practical value. Rev. Stat. sec. 1891, declaring that the Constitution shall have force and effect within all the organized Territories and in every Territory hereafter organized, seems to meet the requirements of every case, and to be operative wherever Congress does not in the organization restrict the application of the Constitution in some particular.

In Dorr v. United States, 195 U. S. 138, the question was presented, as stated by Mr. Justice Day, whether, "in the absence of a statute of Congress, expressly conferring the right, trial by jury is a necessary incident of judicial procedure in the Philippine Islands, where demand for trial by that method has been made by the accused and denied by the courts established in the islands." In discussing the case it was said that not only has Congress hitherto refrained from incorporating the Philippine Islands into the United States, but in the act of 1902, providing for temporary civil government, 32 Stat. 691, there was an express provision that Rev. Stat. sec. 1891

should not apply to the Philippine Islands. This is the section giving force and effect to the Constitution of the United States, not locally inapplicable, within the organized Territories. The case simply holds that as Congress did not extend the right of trial by jury to the Philippine Islands, and had not so incorporated them as to make the provision apply by implication, the right did not exist. The cases of Steamer Coquitlam, 163 U. S. 346, and Binns v. United States, 194 U. S. 486, are too obviously inapplicable to require comment.

I do not dissent from the conclusion of the court in this case, but I do dissent from the proposition that Congress may not deal with Territories as it pleases, until it has seen fit to extend the provisions of the Constitution to them, which, once done, in my view, is irrevocable. I regret that the disputed doctrine of incorporation should have been made the mainstay of the opinion of the court, when the case might so easily have been disposed of upon grounds which would have evoked no utterance of disapproval.

KNAPP v. LAKE SHORE AND MICHIGAN SOUTHERN RAILWAY COMPANY.

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF OHIO.

No. 251. Argued February 28, 1905.-Decided April 10, 1905.

The Circuit Court of the United States has no original jurisdiction to issue a writ of mandamus at the instance of the Interstate Commerce Commission against a railroad company to compel it to make a report of the matters and things specified in § 20 of the act of Congress to regulate

commerce.

THE facts are stated in the opinion.

197 U. S.

Argument for Plaintiffs in. Error.

Mr. Assistant Attorney General McReynolds and Mr. L. A. Shaver, Solicitor for the Interstate Commerce Commission, for plaintiffs in error:

Under the act of March 3, 1887, 24 Stat. 552, which defined the jurisdiction of Circuit Courts of the United States, and other similar acts passed prior thereto, a Circuit Court has jurisdiction of an original proceeding seeking relief by manda

mus.

While this proposition is undoubtedly out of harmony with the opinions of this court in a number of cases arising under the judiciary act of 1789, 1 Stat. 73, and the act of 1875, 18 Stat. 470, the question has not been directly passed upon by this court in any case arising since the act of March 3, 1887 defined the jurisdiction of United States courts. That act repealed all laws and parts of laws in conflict with its provisions. McIntire v. Wood, 7 Cranch, 504; McClung v. Silliman, 6 Wheat. 598; Bath County v. Amy, 13 Wall. 245; Graham v. Norton, 15 Wall. 427; County of Greene v. Daniel, 102 U. S. 187, 195; United States v. Schurz, 102 U. S. 378, 393; Davenport v. County of Dodge, 105 U. S. 237; Louisiana v. Jumel, 107 U. S. 711, 727; Smith v. Bourbon County, 127 U. S. 105, 112; High on Ex. Leg. Rem. § 589; Mystic Milling Co. v. Chicago, M. & St. P. Railway Co. et al., 132 Fed. Rep. 289. As to the reasons why the courts should have jurisdiction to issue mandamus see dissent of Bradley, J., in Rosenbaum v. Bauer, 120 U. S. 459.

This court should not be bound by the decisions prior to the act of 1887 but should hold that under that act the Circuit Court has authority to entertain any proceeding seeking remedy by mandamus. Hartman v. Greenhow, 102 U. S. 672; Ames v. Kansas, 111 U. S. 449, 459.

Congress has power to authorize a Circuit Court to issue a mandamus in an original proceeding. Kendall v. United States, 12 Peters, 522, 617; United States v. Schurz, 102 U. S. 378; Merrill on Mandamus, § 217; High on Ex. Leg. Rem. $ 589.

Argument for Plaintiffs in Error.

197 U. S.

If no other statute conferred upon a Circuit Court jurisdiction of an original proceeding for a mandamus such jurisdiction was given in cases where the writ is necessary to enforce orders of the Interstate Commerce Commission by the act to regulate commerce, approved February 4, 1887, and the amendments thereto. See $20 and § 12 as amended March 2, 1889, and February 10, 1891.

Mandamus is the only adequate remedy known to the law by which a common carrier can be forced to report. Common carriers have assumed public functions and the duties imposed upon them by statute may properly be enforced by mandamus. Merrill on Mandamus, § 1325; Mobile and Ohio R. R. Co. v. Wisdom, 5 Heiskell (Tenn.), 125.

The purpose of the act to secure Federal supervision of interstate commerce can only be made reasonably effective by resort to Federal courts, and Congress did not intend the Commission to rely upon state courts to secure enforcement of its orders if, indeed, such courts have power to entertain applications therefor.

As to whether the criminal prosecutions provided for by the act were intended to secure compliance with those sections wherein no specific remedy was given it is well settled that a remedy by mandamus is not defeated by the existence of a punitive statute. Merrill on Mandamus, § 53; High Ex. Leg. Rem. $$ 18, 20. The purpose of Congress was to secure proper information for the use of the Commission and the public. The effective way of carrying out such purpose is not by means of a criminal prosecution. Mandamus is the only instrumentality which can be safely relied upon to produce the desired result.

In nearly all original proceedings seeking writs of mandamus to compel carriers to file annual reports presented to the Federal courts in the year 1897 the carriers complied with the orders before they were heard and the suits were dismissed. I. C. C. v. Chicago, K. & S. R. R. Co., 81 Fed. Rep. 783; 1. C. C. v. Seaboard Ry. Co., 82 Fed. Rep. 563, 566; S. C., 85

197 U. S.

Argument for Defendant in Error.

Fed. Rep. 955. In none of the cases so instituted was the jurisdiction of the court to entertain the proceeding called in question.

Mr. George C. Greene for defendant in error:

A Circuit Court of the United States has no jurisdiction, under the general statute defining its jurisdiction, to issue a writ of mandamus as an original proceeding, nor at all except when necessary to the exercise of its jurisdiction. Rev. Stat. §716; McIntire v. Wood, 7 Cranch, 504; Bath Co. v. Avery, 13 Wall. 244; United States v. Kendall, 12 Peters, 608.

Jurisdiction has not been conferred upon the Circuit Court by the act to regulate commerce to issue the writ of mandamus applied for in this case.

The method of procurement of information by the Commission is clearly defined in § 12 and it confers no authority upon the Commission to require or compel a carrier to expend its time, labor and money in preparing and laying before the Commission reports, statements, tables or computations upon subjects upon which the Commission may deem it necessary to have information. Under that section it may only obtain such information by examination of witnesses and inspection of books and documents or depositions taken as is provided. in that section.

Section 12 confers no jurisdiction upon any court. It merely declares the duty of district attorneys. It requires them to institute in the proper court all necessary proceedings for the enforcement of the act. The "necessary proceedings" intended were such proceedings as were authorized and in accordance with existing law, and they were to be instituted in the proper courts; i. e., courts having jurisdiction to entertain them. Section 16 of the act has no application to this case.

This case is not an application to the Circuit Court sitting in equity. Nor is it an application by the Commission or person interested in the order. It is a suit at law in which the United States is party plaintiff.