(concurring and dissenting).

I concur in the court’s sua sponte holding that the population of Guam is able to supply grand jurors to return an indictment and in the dismissal of the information for want of jurisdiction of the case in the absence of such grand jurors so acting. I also concur in the decision that the Guam district court should exercise its jurisdiction in the same way for violations of felonies created by the Guam legislature as for violations of federal felonies.

I dissent (A) from the court’s illegal act, in violation of the constitutional limitation of its authority, in giving an advisory opinion that the Guam district court has the jurisdiction to convict an accused man, indicted by Guam grand jurors, without a trial by Guam petit jurors, in a case in which this court holds the district court is without jurisdiction; though, strangely, it does not make the necessary order that the nfor-mation be dismissed as to the felony charge as it does in the case of Pugh v. United States; and

(B) Since it is the law of this case that the court has such power, I dissent from the court’s advisory opinion and on grounding its decision both as to the right to indictment and jury trial on an interpretation of the rules of criminal procedure instead of 48 U.S.C.A. § 1424 (a) expressly conferring on the Guam district court the same jurisdiction as in the district courts of the continental United States, with their lack of jurisdiction in felony cases (1) to consider them without indictment unless waived or (2) to render judgment without jury trial, unless waived.

A. The Court of Appeals violates the Constitution in giving an advisory opinion on the right to trial by jury in the Guam district court, an issue not before it.

This is an extraordinary decision. It decides first, as it must, that the instant case must be dismissed since the district court had no jurisdiction at all to con *773 sider the crime charged because there is no indictment charging Hatchett with committing it. The court then proceeds to create itself as an advisory body on the construction of criminal law of Guam and gives an opinion to the effect that Congress, having found that the population of Guam could supply grand jurors, nevertheless concluded it could not supply petit jurors and denied those accused of felonies the right of trial by jury.

Here Hatchett may never be indicted for the felony of involuntary manslaughter. A grand jury well could determine that he had done no more than that he operated a vehicle under the influence of liquor, a misdemeanor, and that he was operating one at an excessive speed, also a misdemeanor. That is to say, the issue of the right to jury trial which has not arisen in this case may never arise between the two parties, Guam and Hat-chett.

In holding that this court has such a right to render an advisory opinion, Judge Pope’s opinion is in direct conflict with his recent opinion in Benz v. Compania Naviera Hidalgo, S. A., 9 Cir., 205 F.2d 944, 946 , and with Waialua Agr. Co. v. Maneja, 9 Cir., 178 F.2d 603, 613 , 1 participated in by the concurring member of the court. These judges are described as showing a confusion of mind in contradictory opinions in this circuit, one of the several grounds upon which certiorari should be sought in such an important question of federal law in conflict with applicable decisions of this and the Supreme Court.

In the Benz case the court held [ 205 F.2d 946 ] :

citing the following from California v. San Pablo & Tulare R. R., 149 U.S. 308, 314 , 13 S.Ct. 876, 878 , 37 L.Ed. 747 ;

In the Waialua case, the court refused to give an advisory opinion on a certain stipulated contention because the record below failed to show that the contention was at issue on the pleadings. It returned the case to the trial court, stating, 178 F.2d at page 613 ,

As early as the case of United States v. Ferreira, 13 How. 40, 52 , at page 53, 14 L.Ed. 42 , the Supreme Court held that the exercise of such power by a constitutional court violates the Constitution. Recently, the Supreme Court in dismissing the case of St. Pierre v. United States, 319 U.S. 41 , at page 42, 63 S.Ct. 910 , at page 911, succinctly states the law as follows:

The question of Hatchett’s rights of trial by jury cannot be construed by this court because not in a case before it.

(B) The express provision of 48 U. S.C.A. 1424(a), the only section on jurisdiction in the Enabling Act of Guam, gives to its district court the same jurisdiction as the district courts of the United States, which is limited in the prosecution of those accused of felonies, not waiving their rights, to those indicted by grand juries and in their conviction to those tried by petit jurors.

The court’s opinion leads to the following absurd results. It states that though Congress gave Guam a bill of rights which does not mention the right of indictment by grand juries, the bill does not limit the jurisdiction of the district court, Congress having given that right to persons accused of felonies in its district courts. It gave to the Guam legislature the power to create jury trial for felonies in the other territorial courts. Yet it denied to those indicted for felonies by grand jurors in the district court the right to trial by petit jurors.

That is to say, Congress intended that one of the 15,000 military personnel indicted in a territorial court for second degree murder of a civilian while off a reservation, could be tried and sentenced to life imprisonment only by a jury, while in the district court one indicted for such murder is to be tried and sentenced for life without trial by jury!

This absurdity arises from determining the jurisdiction of the district court from a wrongful interpretation of the criminal rules instead of the express terms of the jurisdictional section 48 U. S.C.A. § 1424(a), which the rules merely implement.

All the court’s discussion of the obvious fact that the Constitution does not follow the flag in Guam is way by the mark. The contention was not seriously urged at the hearing. The single issue before us is, has Congress created in the Guam district court by the express language of 48 U.S.C.A. § 1424 (a) the constitutional limitation of jurisdiction to entertain the prosecution of persons accused of felonies only by indictment, unless waived, and to convict them by jury trial unless waived, as in the district courts of the United States and as it has created such limited jurisdiction in the district courts of Puerto Rico and the Virgin Islands.

The pertinent portions of 48 U.S.C.A. § 1424 (a) and 28 U.S.C. § 451 to which the former refers, expressly confer on the Guam district court the same jurisdiction as that of a continental district court of the United States in such a case as this of a federal felony. They are:

As early as Ex parte Wilson, 114 U.S. 417 , at page 429, 5 S.Ct. 935 , at page 941, 29 L.Ed. 89 , it was held that to proceed to try an accused for felony without an indictment was without the “jurisdiction” of district courts of the United States, stating:

Two years later in Ex parte Bain, 121 U.S. 1 , 7 S.Ct. 781, 788 , 30 L.Ed. 849 , where Bain was convicted on an indictment found invalid because amended by the court, it was held that “jurisdiction of the offense [a felony] is gone” because the case was not “properly presented by indictment.” Cf. Roche v. Evaporated Milk Ass’n, 319 U.S. 21, 24 , 63 S.Ct. 938 , 87 L.Ed. 1185 .

So also it is a question of jurisdiction whether a judgment of conviction can be had in a prosecution of an indictment, if there is a “failure to complete the court” by a jury. In Johnson v. Zerbst, 304 U.S. 458, 468-469 , 58 S.Ct. 1019, 1024 , 82 L.Ed. 1461 , the Court, in speaking of the right to counsel guaranteed by the Sixth Amendment, stated: “A court’s jurisdiction at the beginning of trial may be lost ‘in the course of the proceedings’ due to failure to complete the court — as the Sixth Amendment requires — by providing counsel for an accused who is unable to obtain counsel, who has not intelligently waived this constitutional guaranty, and whose life or liberty is at stake.”

Likewise in Callan v. Wilson, 127 U.S. 540 , 8 S.Ct. 1301, 1307 , 32 L.Ed. 223 , the Supreme Court stated:

Congress further indicáted that it conferred on the Guam district court, having jurisdiction of federal felonies, the same jurisdictional requirement of indictment by grand juries and trial by petit juries as in the continental courts, by applying to Guam 18 U.S.C., the Federal Code of Crimes and Criminal Procedure. With regard to juries that code provides for the acceptance and solicitation of a bribe in section 208 and for the offer of one in 206. Section 243 makes provision for exclusion of jurors on account of color. Section 1503 makes intimidation of jurors a crime. Section 5033 provides for the waiver of jury trial by juvenile delinquents. Section 3692 requires juries in contempt cases *776 of labor disputes and section 3691 in criminal contempt of court. Section 3432 requires in capital cases a copy of the indictment and a list of veniremen shall be furnished the accused. Section 3321 provides for the number of grand jurors and method of summoning them. Sections 3288 and 3289 provide for rein-dictment where a defective indictment was found before and after the expiration of the period of limitation.

The court’s opinion makes the same wrongful perversion of this jurisdictional provision of 1424(a) as in its opinion in Pugh v. United States, 9 Cir., 212 F.2d 764 . There the court’s opinion quotes the pertinent sentence of § 1424 (a): “The District Court of Guam shall have, in all causes arising under the laws of the United States, the jurisdiction of a district court of the United States as such court is defined in. section 451 of Title 28,” and states “we think the use of the word ‘jurisdiction’ in the language just quoted has no such connotation here [as it does for the district courts of the United States]. Plainly this refers to the jurisdiction of the subject matter. It states what cases the court may try.” (Emphasis supplied.)

That is to say, the court would amend this sentence of § 1424(a) by deleting the significant comma after the word “have” and inserting the word “jurisdiction” before the words “ ‘in all causes arising under the laws of the United States’ ” and, after deleting the second comma, by striking out all the succeeding words “ ‘the jurisdiction of a district court of the United States as such court is defined in section 451 of Title 28’ ”.

After such legerdemain so mauling the statute, the sentence would read:

Such an absurdity of statutory construction obviously violates the elementary principle that the words of a statute shall be construed to give them effect and not to make them nugatory. As stated by the Supreme Court in Washington Market Co. v. Hoffman, 101 U.S. 112, 115, 116 , 25 L.Ed. 782 , “We are not at liberty to construe any statute so as to deny effect to any part of its language. It is a cardinal rule of statutory construction that significance and effect shall, if possible, be accorded to every word. As early as in Bacon’s Abridgment, sect. 2, it was said that ‘a statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant.’ ” The same statement is repeated in Ex parte Public Nat. Bank of New York, 278 U.S. 101, 104 , 49 S.Ct. 43 , 73 L.Ed. 202 .

The only construction of the sentence which gives effect to the jurisdictional provision of 48 U.S.C.A. § 1424 (a) is that the District Court of Guam has the same jurisdiction with respect to grand and petit juries as the district courts of the United States in all causes arising under the laws of the United States. Indeed, this is so clear from the text that we have no reason to consider the Committee reports, for, as stated in Helver-ing v. City Bank Farmers Trust Co., 296 U.S. 85, 89 , 56 S.Ct. 70, 72 , 80 L.Ed. 62 :

Also, in Browder v. United States, 312 U.S. 335, 338 , 61 S.Ct. 599, 601 , 85 L.Ed. 862 , the Court said:

However, when we 'examine the Senate report on the bill creating the District Court of Guam, we find its purpose was to give the litigants in that court the same “rights” of “American law and legal procedure” as they have in the United States District Court for the Northern District of California. That is *777 to say, that court could obtain its jurisdiction to prosecute one accused of a felony only by indictment, unless waived, and to convict him by jury trial unless waived.

In the original draft of the Organic Act (see H.R. 7273, 81st Cong., 2d Sess., as introduced on Feb. 13, 1950), no provision was made for a district court. Instead, Section 22 vested the judicial authority of Guam in one supreme court and in such inferior courts as may be established under the laws of Guam. The problem of enforcement of the laws of the United States, as opposed to the laws of Guam, was taken care of in Sec. 24 of the proposed bill by extending the jurisdiction of the United States District Court for the Northern District of California to include Guam, and providing for special terms of that court to be held in Guam.

Later the bill was amended to establish a district court in Guam. The reason for this change is given on page 4 of Senate Report No. 2109, cited supra:

We thus see that the considered alternative for Guam of the United States Court for the Northern District of California was the United States District Court of Hawaii where, again, jurisdiction of a felony could be obtained only by indictment and conviction after jury trial unless both were waived.

It is significant that the court’s opinion ignores this legislative history though vigorously pressed on it in Hatchett’s briefs and at the hearing.

Since the Guam district court had jurisdiction requiring jury trials, Rule 23 (a) of the Federal Rules of Criminal Procedure should be applied to it as it is applied in the continental courts. It reads:

The cases not “required to be tried by jury” are those in which jury has been waived, those in proceedings for petty offenses before United States Commissioners under Crim. Rule 54(b)(4) and those in five other classes of cases stated in Crim. Rule 54(b)(5). In all other cases it is required.

We should take judicial notice of the following facts before Congress in enacting § 1424(a). Apart from the businessmen and the 15,000 military, the original inhabitants, the Guamanians, are capable of producing trial jurors as well as grand jurors.

Beginning in 1900 and continuing for the succeeding fifty-four years, save in the Japanese occupancy, they have been compelled by the military authorities to send their children to English-speaking schools from the age of 7 to 12. They are people, excepting the few aged, speaking in English and literate in English and taught in the schools the elements of American ideals. Since 1935 they have been governed by the common *778 law as developed in the California Civil and Criminal Codes, then made the law of Guam. It is clear that if they are not now able to supply jurors for the jury system, they never will be.

Contrast this with the conferring of the grand and petit juries on the Puerto Ricans in 1900 where, according to the 1929 edition of the Encyclopedia Britannica, page 263, “In 1899, out of a reported total but 15% could read or write. The total number in all schools at that time was 22,265, or about 2% of the population.” Nevertheless, the Commission appointed by the President under 48 U.S.C.A. § 1421c(b) to determine the federal statutes applicable to Guam in 1950 which should remain applicable stated that Guam’s status is comparable to that of Puerto Rico and the Virgin Islands,” and “If the Congress has extended a statute to Puerto Rico and the Virgin Islands, the Commission considered that act to be presumptively appropriate for application to Guam.”

. Seven other circuits agree.

(1) (D.C. Cir.) Acheson v. Droesse, 90 U.S.App.D.C. 143 , 197 F.2d 574, 576-577 ;

(2) Cover v. Schwartz, 2 Cir., 133 F.2d 541, 546-547 , certiorari denied 339 U.S. 748 , 63 S.Ct. 1158 , 87 L.Ed. 1703 ;

(3) Root Refining Co. v. Universal Oil Products Co., 3 Cir., 169 F.2d 514, 521 , certiorari denied Universal Oil Products Co. v. William Whitman Co., Inc. 335 U. S. 912 , 69 S.Ct. 481 , 93 L.Ed. 444 ;

(6) O’Brien v. Fackenthal, 6 Cir., 284 F. 850 ;

(7) Winsor v. Daumit, 7 Cir., 185 F.2d 41, 43-44 ;

(8) Chicago Great Western Ry. Co. v. Beecher, 8 Cir., 150 F.2d 394, 398 , cer-tiorari denied 326 U.S. 781 , 66 S.Ct. 339 , 90 L.Ed. 473 ;

(10) Paradise Land & Livestock Co. v. Federal Land Bank of Berkeley, 10 Cir., 147 F.2d 594, 596 , certiorari denied 326 U.S. 717 , 66 S.Ct. 21 , 90 L.Ed. 424 .