JURISDICTION OVER FEDERAL
AREAS
WITHIN THE STATES
REPORT OF THE
INTERDEPARTMENTAL
COMMITTEE
FOR THE STUDY OF
JURISDICTION OVER FEDERAL
AREAS
WITHIN THE STATES
PART II
A Text of the Law of Legislative
Jurisdiction
Submitted to the Attorney General and
transmitted to the President
June 1957
Reprinted by Constitutional
Research Associates
P.O. Box 550
So. Holland, Illinois
06473
INTERDEPARTMENTAL COMMITTEE FOR
THE STUDY OF
JURISDICTION OVER FEDERAL AREAS WITHIN THE STATES
PERRY
W. MORTON, Assistant Attorney General, Chairman
ROBERT
DECHERT,[1] General Counsel, Department of Defense, Vice
Chairman
HENRY
H. PIKE,[2] Associate General Counsel, General Services
Administration, Secretary
ARTHUR
B. FOCKE, Legal Adviser, Bureau of the Budget
ELMER
F. BENNETT,[3] Solicitor, Department of the Interior
ROBERT
L. FARRINGTON, General Counsel, Department of Agriculture
PARKE
M. BANTA, General Counsel, Department of Health, Education, and
Welfare
GUY H.
BIRDSALL,[4] General Counsel, Veterans' Administration
Staff Director
EDWARD S. LAZOWSKA, Department
of Justice
Principal Assistants, Part
II
ROBERT W. GEWEKE, Department of
Justice
HAROLD HAM, Department of
Agriculture
Principal Staff, Part
II
BERNARD M. NEWBURG, Department of
the Interior
THOMAS A. PACE, Department of
Justice
CHARLES S. SULLIVAN, Department of Justice
HERMAN WOLKINSON, Department of
Justice
Staff
Department
of Justice:
HELEN BUCKLEY, Tax Division
CALVIN W. DERRENGER, Office of Deputy
Attorney General
ALICE MILLER, Internal Security Division
CLARE LUND, Lands Division
ALICE B. BRIGHT, Lands Division
[1] Succeeded MANSFIELD D. SPRAGUE On
February 28, 1957, who had
succeeded
Wilber M. Brucker on October 13, 1955.
[2] Succeeded MAXWELL H. ELLIOTT on
August 27, 1956.
[3] Succeeded J. REUEL ARMSTRONG on May
3, 1957.
[4] Succeeded EDWARD E. ODOM on May 9,
1956.
II
III
STAFF
Department
of Defense:
GEORGE D. HEISSER
FRED FIALKOW
JOHN DAILEY, JR.
BASIL S. NORRIS
HORACE B. ROBERTSON, JR.
FRANCIS J. McSHALLEY
MARY L. GARDNER
General
Services Administration:
FRANCIS J. McSHALLEY
MARY L. GARDNER
Veterans'
Administration: R.B. WHITE
Department
of Health, Education, and Welfare: HELEN BOWMAN
LETTER OF ACKNOWLEDGMENT
THE WHITE
HOUSE
Washington, July 8,
1957
DEAR MR. ATTORNEY GENERAL: I have taken note
of the final report
(Part
II) which you transmitted to me, rendered by the
Interdepartmental
Committee for the Study of Jurisdiction over Federal
Areas
within the States. It is my
understanding that the report is to
be
published and distributed, for the purpose of making available to
Federal
administrators of real property, Federal and State
legislators,
the legal profession, and others, this text of the law of
legislative
jurisdiction in these areas.
In view of the fact that the work of the
Committee is completed, and
since
other departments and agencies of the Government now have clear
direction
for turning this work into permanent gains in improved
Federal-Study
of Jurisdiction over Federal Areas within the States is
hereby
dissolved.
Chairman Perry W. Morton and the members of
this Committee have my
congratulations
and sincere appreciation of their service to our
country
in bringing to light the facts and law in this much neglected
field. This monumental work, culminating three
years of exhaustive
effort,
lays an excellent foundation for allocating to the States some
of the
functions which under our Federal-State system should properly
be
performed by State governments.
Sincerely,
THE HONORABLE
HERBERT BROWNELL, JR.,
The Attorney
General,
Washington, D.C.
IV
Preface
The Interdepartmental Committee for the
Study of Jurisdiction over
Federal
Areas within the States was formed on December 15, 1954, on
the
recommendation of the Attorney General approved by the President
and the
Cabinet. The basic purpose for which
the Committee was
founded
was to find means for resolving the problems arising out of
jurisdiction
status of Federal lands. Addressing
itself to this
purpose,
the Committee, with assistance from all Federal agencies
interested
in the problems (a total of 33 agencies), from State
Attorneys
General, and from numerous other sources, prepared a report
entitled
Jurisdiction over Federal Areas within the States--Part I,
The
Facts and Committee Recommendations.1
This report, approved by
the
President on April 27, 1956, set out the findings of the Committee
and
recommended changes in Federal and State law, and in Federal
agencies'
practices, designed to eliminate existing problems arising
out of
legislative jurisdiction. It included
two appendices.
The
Committee's research involved a general survey of the
jurisdictional
status of all federally owned real property in the 48
States,
and a detailed survey of the status of individual such
properties
in the State of Virginia, Kansas, and California. These
three
named States were selected as containing Federal real properties
representative
of such properties in all the States. Information was
procured
concerning the practices and problems related to legislative
jurisdiction
of the 23 Federal agencies controlling real property, and
of the
advantages and disadvantages of the several legislative
jurisdiction
statuses for the various purposes for which federally
owned
land is used. This information is
reflected and ana-
VII
VIII
PREFACE
lyzed
in the several chapters of part I of the report, and is
summarized
in appendix A of the same part.
The Committee's study included a review of
the policies, practices,
and
problems of the 48 States related to legislative jurisdiction.
Information
concerning these matters similarly is reflected and
analyzed
in various portions of part I of the report, with chapter V
of the
part being entirely devoted to the laws and problems of States
related
to legislative jurisdiction. Also, the
texts of State (and
Federal)
constitutional provisions and statutes related to
jurisdiction
in effect as of December 31, 1955, are gathered in
appendix
B of part I.
The major conclusions of the Committee, set
out in part I of the
report,
which, of cause, are applicable only to the 48 States to which
the
Committee's study extended, and do not apply to present
Territories
or the District of Columbia, are to the effect that in the
usual
case the Federal Government should not receive or retain any of
the
States' legislative jurisdiction within federally owned areas,
that in
some special cases (where general law enforcement by Federal
authorities
is indicated) the Federal Government should receive or
retain
legislative jurisdiction only concurrently with the States, and
that in
any case the Federal Government should not receive or retain
any of
the States' legislative jurisdiction with respect to taxation,
marriage,
divorce, descent and distribution of property, and a variety
of
other matters, specified in the report, which are ordinarily the
subject
of State control.
The conclusions reached by the Committee
were, of course, made only
after
an appraisal of the facts adduced during the study in the light
of
applicable law, including the great body of decisions handed down
by
courts and opinions rendered by governmental legal officers,
Federal
and State, interpretative of situations affected by
legislative
jurisdiction.
Recommendations made by the Committee, based
on the conclusions
indicated
above and on certain subsidiary findings, now constitute the
policy
of the Executive branch of the Federal Government, and are
being
implemented by Federal agen-
IX
cies to
the extent possible under existing law.
However, full
implementation
of these recommendations must await the enactment of
certain
suggested Federal and State legislation.
In the course of its study the Committee
ascertained the existence
of a
serious lack of legal bibliography on the subject-matter of its
interest. With the concurrence of the Attorney General
of the United
States
and the encouragement of the President, it has proceeded with
the publication
of this part II of its report, a compilation of the
court
decisions and legal opinions it weighed in the course of its
study
of the subject of legislative jurisdiction.
CONTENTS
Page
COMMITTEE
AND STAFF MEMBERSHIP................................. II
PRESIDENT'S
LETTER OF ACKNOWLEDGMENT........................... IV
ATTORNEY
GENERAL'S LETTER OF TRANSMITTAL....................... V
COMMITTEE'S
LETTER OF SUBMISSION............................... VI
PREFACE........................................................ VII
CASES
CITED.................................................... XIX
CHAPTER
I
OUTLINE
OF LEGISLATIVE JURISDICTION
FEDERAL
REAL PROPERTIES
Holdings
extensive.......................................... 1
Activities thereon
varied...................................
1
Legal problems
many......................................... 2
FEDERAL
POSSESSION OF EXCLUSIVE JURISDICTION
By constitutional
consent...................................
2
By Federal reservation or State
cession..................... 3
Governmental power merged in Federal
Government............. 3
EXERCISE
OF EXCLUSIVE FEDERAL JURISDICTION
Legislative authority little
exercised...................... 4
Exercise as to
crimes....................................... 5
Exercise as to civil
matters................................
5
RULE OF
INTERNATIONAL LAW
Extended by courts to provide civil
law..................... 6
Problems arising under
rule.................................
6
ACTION
TO MITIGATE HARDSHIPS INCIDENT TO
EXCLUSIVE JURISDICTION
By Federal-State arrangement................................ 7
Federal efforts limited; State efforts
restricted........... 7
By State statute or informal action, and
State reservations. 8
RESERVATION
OF JURISDICTION BY STATES
Development of reservations................................. 8
Early requirement, of R.S. 355, for
exclusive Federal
jurisdiction
Present variety of jurisdictional
situations................ 10
JURISDICTIONAL
STATUSES DEFINED
Exclusive legislative
jurisdiction..........................
10
Concurrent legislative
jurisdiction.........................
11
Partial legislative
jurisdiction............................
11
Proprietorial interest
only.................................
11
XI
XII
CONTENTS
Page
OTHER
FEDERAL RIGHTS IN FEDERALLY OWNED AREAS
To carry out constitutional duties........................... 11
To made needful rules, and necessary and
proper laws, and
effect of Federal supremacy
clause........................ 12
GENERAL BOUNDARIES OF THE
WORK..............................
13
CHAPTER
II
ORIGIN
AND DEVELOPMENT OF LEGISLATIVE JURISDICTION
ORIGIN
OF ARTICLE I, SECTION 8, CLAUSE 17, OF THE CONSTITUTION
Harassment of the Continental
Congress....................... 15
Debates in Constitutional Convention
concerning clause 17.... 18
Debates in State rafting
conventions.........................
22
Federal legislation prior to
1885............................ 28
Early court
decisions........................................ 37
CHAPTER
III
ACQUISITION
OF LEGISLATIVE JURISDICTION
THREE
METHODS FOR FEDERAL ACQUISITION OF JURISDICTION
Constitutional
consent....................................... 41
State
cession................................................ 42
Federal reservation.......................................... 43
No Federal legislative jurisdiction without
consent,
cession, or
reservation................................... 45
NECESSITY
OF STATE ASSENT TO TRANSFER OF JURISDICTION
TO
FEDERAL GOVERNMENT
Constitutional
consent....................................... 46
State cession or Federal
reservation.........................
47
NECESSITY
OF FEDERAL ASSENT
Express consent required by R.S.
355......................... 48
Former presumption of Federal acquiescence
in absence of
dissent...................................................... 49
Presumption in transfers by
cession.......................... 50
Presumption in transfers by constitutional
consent........... 51
What constitutes
dissent..................................... 53
NECESSITY
OF STATE ASSENT TO RETRANSFER OF JURISDICTION TO STATE
In
general................................................... 54
Exception.................................................... 56
DEVELOPMENT
OF RESERVATIONS IN CONSENT AND CESSION STATUTES
Former Federal requirement (R.S. 355) for
exclusive jur-
isdiction................................................. 57
Earlier theory that no reservation by State
possible......... 59
State authority to make reservation in
cession statutes
recognized................................................ 60
XIII
CONTENTS
DEVELOPMENT
OF RESERVATIONS IN CONSENT AND CESSION STATUTES
--continued Page
State authorized to make reservations in
consent statutes
recognized................................................ 62
Retention by Federal Government of less than
exclusive jur-
isdiction on admission of
State........................... 64
Non-interference with Federal use now sole
limitation on
reservations by
States....................................
64
Specific reservations
approved...............................
65
LIMITATIONS
ON AREAS OVER WHICH JURISDICTION MAY BE ACQUIRED BY
CONSENT OF STATE UNDER CLAUSE 17
In
general................................................... 66
Area required to be "purchased" by
Federal Government........ 67
Term "needful Buildings"
construed...........................
70
LIMITATIONS
ON AREAS OVER WHICH JURISDICTION MAY BE ACQUIRED BY
CESSION OF STATE
Early view................................................... 73
Present
view................................................. 74
Specific purposes for which cessions
approved................ 78
LIMITATIONS
ON AREAS OVER WHICH JURISDICTION MAY BE RETAINED BY
FEDERAL
RESERVATION....................................... 79
PROCEDURAL
PROVISIONS IN STATE CONSENT OR CESSION STATUTES
JUDICIAL NOTICE OF FEDERAL EXCLUSIVE
JURISDICTION
Conflict of
decisions........................................ 80
CHAPTER
IV
TERMINATION
OF LEGISLATIVE JURISDICTION
UNILATERAL
RETROCESSION OR RECAPTURE OF JURISDICTION
Retrocession................................................. 83
Recapture.................................................... 83
MEANS
OF TERMINATION OF FEDERAL JURISDICTION
In
general................................................... 84
FEDERAL
STATUTORY RETROCESSION OF JURISDICTION
In
general................................................... 84
Right to retrocede not early
apparent........................ 85
Right to retrocede
established...............................
87
Constriction of retrocession
statutes........................ 88
SUMMARY
OF RETROCESSION STATUTES
Retrocession few............................................. 89
Statutes enact to afford civil rights to
inhabitants of
Federal
enclaves............................................. 90
Statutes enacted to give State or local
governments author-
ity for policing highways.................................... 93
Miscellaneous statutes retroceding
jurisdiction.............. 95
XIV
CONTENTS
Page
REVERSION
OF JURISDICTION UNDER TERMS OF STATE CESSION STATUTE
In
general................................................... 96
Leading
eases................................................ 96
REVERSION
OF JURISDICTION BY TERMINATION OF FEDERAL USE OF PROPERTY
Doctrine
announced........................................... 99
Discussion of
doctrine....................................... 99
CHAPTER
V
CRIMINAL
JURISDICTION
RIGHT
OF DEFINING AND PUNISHING FOR CRIMES
Exclusive Federal
jurisdiction...............................
105
Concurrent Federal and State criminal
jurisdiction........... 109
Law enforcement on areas of exclusive or
concurrent jur-
isdiction................................................. 111
Partial
jurisdiction......................................... 113
State criminal jurisdiction
retained......................... 114
Acts committed partly in areas under State
jurisdiction...... 115
Retrial on change in jurisdiction............................ 116
SERVICE
OF STATE CRIMINAL PROCESS
In
general................................................... 116
Right by Federal
grant.......................................
117
Right by State
reservation................................... 117
Reservations to serve process not
inconsistent with exclusive
jurisdiction.............................................. 118
Warrant of arrest deemed
process.............................
121
Arrest without warrant not deemed service of
process......... 122
Coroner's
inquest............................................ 122
Writ of habeas
corpus........................................ 123
FEDERAL
CRIMES ACT OF 1790
Effects limited.............................................. 124
ASSIMILATIVE
CRIMES STATUTES
Assimilative Crimes Act of
1825..............................
126
Assimilative Crimes Act of
1866..............................
128
Re-enactments of Assimilative crimes Act,
1898-1940.......... 128
Assimilative crimes Act of
1948..............................
131
INTERPRETATIONS
OF ASSIMILATIVE CRIMES ACT
Adopts State
law............................................. 132
Operates only when offense is not otherwise
defined.......... 132
Includes common law Excludes status of
limitations........... 134
Excludes law on sufficiency of
indictments................... 134
Offenses
included............................................ 135
Offenses no
included......................................... 135
UNITED
STATES COMMISSIONERS ACT OF 1940........................ 142
XV
CONTENTS
CHAPTER
VI
CIVIL
JURISDICTION
RIGHT
OF DEFINING CIVIL LAW LODGED IN FEDERAL GOVERNMENT Page
In
general................................................... 145
State reservations of
authority..............................
147
Congressional exercise of right--statute relating
to death
or injury by wrongful
act.................................
148
Early apparent absence of civil
law.......................... 155
INTERNATIONAL
LAW RULE
Adopted for areas under Federal legislative
jurisdiction..... 156
Federalizes State civil law, including
common law............ 158
Only laws existing at time of jurisdictional
transfer feder-
alized.................................................... 158
CIRCUMSTANCES
WHEREIN FORMER STATE LAWS INOPERATIVE
By
action of the Federal Government.......................... 159
Where activity by State officials
required................... 161
Inconsistency with Federal
law...............................
163
INTERNATIONAL
LAW RULE IN RETROCESSION OF CONCURRENT
JURISDICTION................................................. 164
STATE
AND FEDERAL VENUE DISCUSSED.............................. 165
FEDERAL
STATUTES AUTHORIZING OF STATE LAW...................... 167
CHAPTER
VII
RELATION
OF STATES TO FEDERAL ENCLAVES
EXCLUSIVE
FEDERAL JURISDICTION
State basically without
authority............................
169
Exclusion of State authority
illustrated..................... 169
Authority to tax excluded.................................... 177
Other authority
excluded..................................... 180
Status of State and municipal
services....................... 186
Service of
process........................................... 187
STATE
RESERVATIONS OF JURISDICTION
In
general................................................... 188
Reservations
construed......................................... 188
AUTHORITY
OF THE STATES UNDER FEDERAL STATUTES
In general................................................... 190
Lea
Act...................................................... 190
Buck
Act..................................................... 192
Military Leasing Act of
1947................................. 203
Workmen's
compensation....................................... 207
Unemployment
compensation.................................... 211
XVI
CONTENTS
CHAPTER
VIII
RESIDENTS
OF FEDERAL ENCLAVES
EFFECTS
OF TRANSFERS OF LEGISLATIVE JURISDICTION Page
In
general..................................................... 215
Education...................................................... 216
Voting
and office holding...................................... 219
Divorce........................................................ 225
Probate
and Lunacy proceedings generally....................... 230
Miscellaneous
rights and privileges............................ 236
CONCEPTS
AFFECTING STATUS OF RESIDENTS
Doctrine
of extraterritoriality................................ 238
Contrary
view of extraterritoriality........................... 239
Theory
of incompatibility...................................... 243
Weaknesses
in incompatibility theory........................... 243
Former
exclusivity of Federal jurisdiction..................... 244
Present
lack of Federal jurisdiction........................... 244
Rejection
of past concepts..................................... 245
Interpretations
of federal grants of power as retrocession..... 245
Summary
of contradictory theories on rights of residents....... 247
CHAPTER
IX
AREAS
NOT UNDER LEGISLATIVE JURISDICTION
FEDERAL
OPERATIONS FREE FROM INTERFERENCE
In
general..................................................... 249
Real
property.................................................. 251
FREEDOM
OF USE OF REAL PROPERTY ILLUSTRATED
Taxation....................................................... 259
Special
assessments............................................ 269
Condemnation
of Federal land................................... 271
FEDERAL
ACQUISITION AND DISPOSITION OF REAL PROPERTY
Acquisition.................................................... 272
Disposition.................................................... 273
PROTECTION
OF PROPERTY AND OPERATIONS OF THE FEDERAL GOVERNMENT
Property....................................................... 272
Operations..................................................... 273
AGENCY RULES AND
REGULATIONS.................................. 277
CONTROL
OVER FEDERAL CONSTRUCTION.............................. 280
Building
codes and zoning...................................... 284
Contractor
licensing........................................... 288
XVII
CONTENTS
CHAPTER
X
FEDERAL
OPERATIONS NOT RELATED TO LAND
STATE
LAWS AND REGULATIONS RELATING TO MOTOR VEHICLES Page
Federally
owned and operated vehicles.......................... 293
Vehicles
operated under Federal contract....................... 299
STATE
LICENSE, INSPECTION AND RECORDING REQUIREMENTS
Licensing
of Federal activities................................ 301
Applicability
of inspection laws to Federal functions.......... 302
Recording
requirements......................................... 304
APPLICABILITY
OF STATE CRIMINAL LAWS TO FEDERAL EMPLOYEES AND
FUNCTIONS
Immunity
of Federal employees.................................. 308
Obstruction
of Federal functions............................... 311
Liability
of employees acting beyond scope of employment....... 312
LIABILITY
OF FEDERAL CONTRACTORS TO STATE TAXATION
Original
immunity of Federal contractors....................... 313
Later
view of contractors' liability........................... 314
Immunity
of Federal property in possession of a contractor..... 316
Economic
burden of State taxation on the United States......... 318
Legislation
exemption of Federal instrumentalities............. 319
INDEX.......................................................... 323
Cases
Cited
Page
Ableman
v. Booth, 21 How. 506 (1859)........................ 123, 312
Adams
v. Londeree, 139 W.Va.748, 83 S.E.2nd 127(1954)...... 219, 224,
245,
248
Adams
v. United States, 319 U.S. 312 (1943).................. 48, 107
Air
Terminal Services, Inc. v. Rentzel, 81 F.Supp. 611 (E.D. Va,
1949)............................................. 135, 138, 182
Alabama
v. King & Boozer, 314 U.S. 1 (1941)................. 315, 319
Alaska
Packers Assn. v. Comm'n., 294 U.S. 532 (1935)............. 210
Alexander
v. Movietonews, Inc., 273 N.Y. 511, 6 N.E. 2nd 604
(1937), cert den., 301 U.S.
702............................. 209
Allen
v. Industrial Accident Com., 3 Cal. 2d 214, 43 P. 2d 787
(1935).................................................. 81, 210
Alward
v. Johnson, 282 U.S. 509 (1931)........................... 299
American
Automobile Ins. Co., et al., v. Struwe, 218 s.w. 534
(Tex., 1920................................................. 294
American
Boiler Works, Inc., Bankrupt, In the Matter of,
220 F.2d 319 (C.A. 3,
1955).................................
304
American
Insurance Company v. Canter, 1 Pet. 511 (1828).......... 157
American
Motors Corp. v. City of Kenosha, 274 Wis. 315, 80 N.W. 2d
363
1957)................................................... 317
Anderson
v. Chicago and Northwestern R. R., 102 Neb. 578, 168 N.W.
196
(1918).................................................. 160
Anderson
v. Elliott, 101 Fed. 609 (C.A. 4, 1900), app. dism., 22
S.Ct. 930, 46 L. Ed. 1262
(1902)............................ 311
Andrews
v. Auditor, 69 Va. 115 (1877)............................ 263
Antelope,
The, 10 Wheat. 66 (1825)............................... 108
Application
for the Removal of Names from Registry List, 133
Misc. 38, 231 N.Y. Supp. 396
(1928)......................... 221
Arapojolu
v. McMenamin, 113 Cal.App.
2d 824, 249 P.2d 318 (1952).... 66, 219, 222, 224, 225, 245, 248
Arizona
v. California, 283 U.S. 423 (1931)....................... 286
Arledge
v. Mabry, N.M. 303, 197 P.2d 884 (1948)......... 68, 92, 221,
223, 226, 228, 239, 247
Arlington
Hotel Co. v. Fant, 278 U.S. 439 (1929)......... 65, 75, 77,
103, 104, 146, 159, 165
Armstrong
v. Foote, 11 Abb. Pr. 384 (Brooklyn City Ct., 1860).... 166
Ashwander
v. Tennessee Valley Authority, 297 U.S. 288 (1936)..... 276
Atkinson
v. State Tax Commission, 303 U.S. 20 (1938)..... 48, 54, 158,
179,
247
Atkinson
v. State Tax Commission, 156 Ore. 461,
62 P. 2d 13
(1936).......................................... 179
XIX
XX
CASES CITED
Page
Bagnell
v. Broderick, 13 Pet. 436 (1839)......................... 274
Bailey
v. Smith, 40 F. 2d 958 (S.D. Iowa, 1928).................. 185
Baker
v. State, 47 Tex.Cr.App. 482, 83 S.W. 1122 (1904).. 52, 80, 105
Baltimore
& A.R.R. V. Lichtenberg, 176 Md. 383, 4 A2d 734 (1939),
app. dim., 308 U.S.
525.....................................
300
Baltimore
Shipbuilding and Dry Dock Co. v. Baltimore,
195 U.S. 375
(1904).....................................
89, 206
Bank v.
Supervisors, 7 Wall. 26 (1869)........................... 307
Bank of
Phoebus v. Byrum, 110 Va. 708, 67 S.E. 349 (1910)........ 237
Bancroft
Inv. Corporation v. Jacksonville, 157 Fla. 546,
27 So. 2d 162
(1946)......................................... 100
Bannon
v. Burnes, 39 Fed. 897 (C.C.W.D.Mo., 1889).................. 70
Barber
v. Barber, 21 How. 582 (1858)............................. 229
Barrett
v. Palmer, 135 N.Y. 336, 31 N.E. 1017 (1892), aff'd.,
162 U.S.
399............................................ 97, 224
Barron
v. Baltimore, 7 Pet. 243 (1833)........................... 110
Battle
v. United States, 209 U.S. 36 (1908).............. 43, 70, 105
Beaufort
County v. Jasper County, 220 S.C. 469,
68 S.E. 2d 421
(1951).......................................
46
Beechwood,
In re. 142 Misc. 400, 254 N.Y. Supp. 473 (1931)....... 234
Bennett
v. Ahrens, 57 F.2d 948 (C.A. 7, 1932).................... 122
Bennett
v. Seattle, 22 Wash. 2d 455, 156 P.2d 685 (1945)......... 298
Benson
v. United States, 146 U.S. 325 (1892).........
43, 50, 72, 75,
102, 103,
104
Birmingham
v. Thompson, 200 F. 2d 505 (C.A. 5, 1952)....... 139, 140,
184,
189
Bliss v.
Bliss, 133 Md. 61, 104 Atl. 467 (1918)............. 231, 234
Bowen
v. Johnston, 306 U.S. 19 (1939)...............
43, 78, 105, 114
Bowen
v. United States 134 F.2d 845 (C.A. 5, 1943), cert. den.,
319 U.S.
764................................................ 105
Bowen
v. Oklahoma Tax Commission, 51 F.Supp. 652
(W.D. Okla.,
1943).......................................... 202
Bradley,
In re, 96 Fed. 969 (C.C.S.D.Cal., 1898)................. 123
Bragg
Development Co. v. Brazion, 239 N.C. 427,
79
S.E. 2d 918 (1954)....................................... 204
Bragg
Investment Co. v. Cumberland County, 245 N.C. 492,
96 S.E. 2d 341
(1957).......................................
205
Breeding
v. Tennessee Valley Authority, 243 Ala. 240,
9 So. 2d 6
(1942)........................................... 210
Brooke
v. State, 155 Ala. 78, 46 So. 491 (1908).................. 114
Brookley
Manor v. State, 90 So. 2d 161 (Ala., 1956).............. 205
Brooks
Hardware Co. v. Greer, 111 Me. 78,
87 Atl. 889
(1911)..............................
52, 69, 71, 147
Brown
v. Cain, 56 F.Supp. 56 (E.D. Pa. 1944)..................... 310
Brown
v. United States, 257 Fed. 46 (C.A. 5, 1919), rev'd.,
256 U.S. 335
(1921)............................... 70, 78, 80, 81
Buckstaff
Bath House Co. v. Mckinley,
308 U.S. 358
(1939)................................. 75, 189, 211
Buford
v. Houtz, 133 U.S. 320 (1890)............................. 283
Burgess
v. Territory of Montana, 8 Mont. 57, 19 Pac. 558 (1888).. 45
Burgess
v. United States, 274 U.S. 328 (1927) ................... 135
Burrus,
In re, 136 U.S. 586 (1890).......................... 229, 236
Buttery
v. Robbins, 177 Va. 368,
14 S.E. 2d 544
(1941)....................... 65, 80,
81, 83, 166
California
v. Mouse, 278 U.S. 614, 662 (1928).................... 68
Callan
v. Wilson, 127 U.S. 540 (1888)............................ 248
XXI
CASES CITED
Page
Camden
v. Harris, 109 F.Supp. 311 (W.D.Ark., 1953).............. 147
Camfield
v. United States, 167 U.S. 518 (1897)........
256, 258, 259
Capetola
v. Barclay White Co., 139 F. 2d 556 (C.A. 3, 1943),
cert. den., 321 U.S. 799.......
........................... 210
Carlton,
In re, 7 Cow. 471 (N.Y., 1827)......................... 123
Carnegie-Illinois
Steel Corp. v. Alderson, 127 W.Va. 807, 34 S.E.
2d 737 (1945), cert den., 326 U.S.
764..................... 202
Carson
v. Roane-Anderson Company, 342 U.S. 232 (1952)...... 290, 320
Castle
v. Lewis, 254 Fed. 917 (C.A. 8, 1918).................... 310
Chalk
v. United States, 114 F.2d 207 (C.A. 4, 1940), cert. den.,
312 U.S. 679................................................ 184
Chaney
v. Chaney, 53 N.M. 66, 201 P. 2d 782 (1949)..... 68, 92, 225,
226, 227, 228, 230
Chavez,
et al., In Re, 149 F.ed 73 (C.A. 8, 1906)................ 157
Chicago,
R. I. & P.Ry. v. Davenport, 51 Iowa 451, 1 N.W. 720
(1879)...................................................... 263
Chicago,
R. I. & P. Ry. v. McGlinn, 114 U.S. 542 (1885)..... 75, 103,
146, 156,
157, 159, 160, 163, 165
Chicago,
R. I. & P. Ry. v. Satterfield, 135 Okla. 183, 185,
275 Pac. 303, 305, 306
(1929)................................
65
Choate
v. Trapp, 224 U.S. 665 (1912)............................. 307
Clay v.
State, 4 Kan. 49 (1866).............................. 44, 114
Cleveland
v. United States, 323 U.S. 329 (1945).................. 268
Cockburn
v. Willman, 301 Mo. 575, 257 S.W. 458 (1923)....... 116, 121
Coffman
v. Cleveland Wrecking Co.,
24 F.Supp. 581 (W.D.Mo.,
1938)......................... 158, 165
Cohens
v. Virginia, 6 Wheat. 264 (1821)...................... 38, 107
Coleman
v. Bros. Corp. v. City of Franklin, 58 F.Supp. 551
(D.N.H., 1945), aff'd., 152 F.2d 527
(C.A. 1, 1945), cert.
den. 328 U.S.
844..........................................
180
Collins
v. Yosemite Park Co., 304 U.S. 518 (1938)............ 43, 66,
75, 77,
139, 140, 161, 182, 189
Colorado
v. Symes, 286 U.S. 510 (1932).......................... 308
Colorado
v. Toll, 268 U.S. 228 (1925).............
81, 137, 145, 284
Columbia
River Packers' Ass'n. v. United States, 29 F.2d 91
(C.A. 9,
1928)............................................. 51
Commissioner
of Internal Revenue v. Clark, 202 F.2d 94 (C.A. 7,
1953)...................................................... 137
Commonwealth
v. Cain, 1 Legal Op. (Seig & Morgan, Harrisburg,
Pa.) 25 (Ct. of Quarter Sessions,
Cumberland County, Pa.,
1870)...................................................... 114
Commonwealth
v. Clary, 8 Mass. 72 (1811)...........
39, 52, 117, 118,
119, 178,
185, 237, 238, 241, 243
Commonwealth
v. Closson, 229 Mass. 329, 118 N.E. 653 (1918)...... 293
....................................................... 295, 297
Commonwealth
v. Cushing, 11 Mass. 67 (1814)...................... 123
Commonwealth
v. Dana, 2 Metc. 329 (Mass., 1841).................. 109
Commonwealth
v. Hutchinson, 2 Parsons Eq. Cas. 384 (Pa., 1848)... 114
Commonwealth
v. King, 252 Ky. 699, 68 S.W. 2d 45 (1934)......... 52,
61, 74, 103, 104, 105
Commonwealth
v. Rohrer, 37 Pa. D. and C. 410 (1937)......... 115, 171
Commonwealth
v. Trott, 331 Mass. 491, 120 N.E. 289 (1954)........ 114
XXII
CASES CITED
Commonwealth
v. Vaughn, 64 Pa. D. and C. 320 (1948).............. 116
Commonwealth
v. Young, Juris. (Hall's, Phila.) 47 (Pa., 1818)..60, 259
Concessions
Co. v. Morris, 109 Wash. 46, 186 Pac. 655 (1919)... 75,179
Conley
Housing Corp. v. Coleman, 211 Ga. 835,
89 S.E. 2d 482
(1955).......................................
204
Consolidated
Milk Producers v. Parker, 19 Cal. 2d 815, 123 P.2d
440
(1942)................................................. 171
Cory v.
Spencer, 67 Kan. 648, 73 Pac. 920 (1903)................. 221
Cotton
v. United States, 11 How. 229 (1850)...................... 279
County
of Allegheny v. McClung, 53 Pa. 482 (1867)...... 105, 122, 181
County
of Cherry v. Thacher, 32 Neb. 350, 49 N.W. 351(1891).. 118,179
County
of Norfolk v. Portsmouth, 186 Va. 1032,
45 S.E.2d 136
(1947)...................................
201, 241
County
of Prince William v. Thomason Park, 197 Va. 861,
91 S.E. 2d 441
(1956).......................................
204
Covell
v. Heyman, 111 U.S. 176 (1884)..............................312
Covington
& C. Bridge Co. v. Kentucky, 154 U.S. 2004 (1894)...... 288
Craig
v. Craig, 143 Kan, 56 P.2d 464 (1936), clarification denied,
144 Kan. 155, 58 P.2d 1101
(1936)........................158, 227
Crater
Lake Nat. Park Co. v. Oregon Liquor Control Comm'n,
26 F.Supp. 363 (D. Oreg., 1939)........................ 139, 140
Crook,
Horner & Co. v. Old Point Comfort Hotel Co.,
54 Fed. 604 C.C.E.D. Va.,
1893................. 61, 97, 157, 224
Cross
v. North Carolina, 132 U.S. 131 (1889)..................... 110
Crowder
v. Virginia, 197 Va. 96, 87 S.E.2d 745 (1955),
app. dism., 350 U.S.
957....................................
300
Crownover
v. Crownover, 58 N.M. 597, 274 P.2d 127 (1954)......... 228
Curry
v. State, 111 Tex. Cr.App. 264, 12 S.W.2d 796 (1928)... 52, 61,
73, 74, 114
Curry
v. United States, 314 U.S. 14 (1941)....................... 316
Curtis
v. Toledo Metropolitan Housing Authority et al., 432,
78 N.E.2d 676
(1947)........................................
285
Custis
v. Lane, 17 Va 579 (1813)................................. 219
Daniels
v. Chanute Air Force Base Exchange, 127 F.Supp. 920
(E.D. Ill.,
1955)........................................... 198
Danielson
v. Donmopray, 57 F.2d 565 (D.Wyo., 1932).......... 157, 165
Darbie
v. Darbie, 195 Ga. 769, 25 S.E.2d 685 (1943)......... 227, 228
Dastervignes
v. United States, 122 Fed. 30 (C.A. 9, 1903)....... 283
Davis
v. Howard, 3006 Ky. 149, 206 S.W.2d 467 (1947).... 56, 202, 246
Dayton
Development Fort Hamilton Corp. v. Boyland, 133 N.Y.S.2d
831 (Sup. Ct., 1954), aff'd., 1 App. Div.
2d 979, 151 N.Y.S.
2d 928, app.. pending, 137 N.E.2d 457
(1956)................ 204
De La
Rama v. De La Rama, 201 U.S. 303 (1906).................... 229
Delamater
v. Folz, 50 Hun 528, 3 N.Y. Supp. 711 (Sup.Ct., 1889).. 116
De Luz
Homes, Inc. v. County of San Diego, 45 Cal. 2d 546,
290 P.2d 544
(1955)......................................... 204
DeNicola
v. DeNicola, 132 Conn. 185, 43 A.2d 71 (1945)........... 229
Deni v.
United States, 8 Ariz. 138, 71 Pac. 920 (1903),
rev'd., 8 Ariz. 413, 76 Pac.
455............................ 283
XXIII
CASES CITED
Dibble
v. Clapp,
Dicks
v. Dicks,
Dickson,
Ex parte,
Divine
v. Unaka National Bank,
Dunaway
v. United States,
Edberg
v. Johnson,
Edelstein
v. South Post Officers Club,
Ellis
v. Davis,
El Toro
Dev. Co. v. County of Orange,
Employers'
Liability Assur. Corp. v. DiLeo,
England
v. United States,
Esso
Standard Oil Co. v. Evans,
Exum v.
State,
Fagan
v. Chicago,
Fair,
In re,
Fairfield
Gardens v. County of Solano,
Faleni
v. United States,
Falls
City Brewing Co. v. Reeves,
Farley
v. Mayor, etc., of New York City,
Farley
v. Scherno,
Farrell
v. O'Brien,
Fay v.
Locke,
Federal
Land Bank of New Orleans v. Crosland,
Federal
Land Bank of St. Paul v. Bismarck Lumber Co.,
Federal
Power Commission v. Idaho Power Co.
Federal
Power Commission v. Oregon,
Federal
Trust Co. v. Allen,
Field
v. Clark,
First
Iowa Coop. v. Power Comm'n.,
Foley
v. Shriver,
Fort
Dix Apartments Corp. v. Borough of Wrightstown,
Fort
Leavenworth R. R. v. Lowe,
Franklin
v. United States,
Franklin
v. United States,
French
v. Bankhead,
XXIV
Gallagher
v. Gallagher,
Garrison
v. State,
Gay v.
Jemison,
CHAPTER I
OUTLINE OF LEGISLATIVE
JURISDICTION
FEDERAL REAL PROPERTIES: Holdings extensive.--The Federal
Government
is the largest single owner of real property in the United
States.
Its total holdings exceed the combined areas of the six New
England
States plus Texas, and the value of these holdings is
enormous.
They consist of over 11,-000 separate properties, ranging in
size
from few hundred square foot monument or post office sites to
million
acre military reservations, and ranging in value from nearly
worthless
desert lands to extremely valuable holdings in the hearts of
large
metropolitan centers.
Activities thereon varied.--The
activities conducted on these
properties
are as varied as the holdings are extensive.
They include,
at one
extreme, the development of nuclear weapons, and at the other,
the
operation of soft drink stands. Some of
the activities are
conduct
in utmost secrecy, with only Government personnel present, and
others,
such as those in national parks, are designed for the
enjoyment
of the public, and the presence of visitors is encouraged.
In many
instances, the performance of these activities requires large
numbers
of resident personnel, military or civilian, or both, and the
presence
of these personnel in turn necessitates additional functions
which,
while not normally a distinctively Federal operation (e.g., the
personnel),
are nevertheless essential to procuring the performance of
the
primary Federal function.
2
Legal problems many.--In view of the
vastness of Federal real
estate holdings,
the large variety of activities conducted upon them,
and the
presence on many areas of resident employees and other person,
it is
to be expected that many legal problems will arise on or with
respect
to these holdings. In addition to the
problems normally
encountered
in administering and enforcing Federal laws, complicated
by
occasional conflict with overlapping States laws, the ownership and
operation
by the Federal Government of areas within the States gives
rise to
a host of legal problems largely peculiar to such areas. They
arise
not only because of the fact of Federal ownership and operation
of
these properties, but also because in numerous instances the
federal
Government has with respect to such properties a special
jurisdiction
which excludes, in varying degrees, the jurisdiction of
the
State over them, and which in other instances is, to varying
extends,
concurrent with that of the State.
FEDERAL POSSESSION OF EXCLUSIVE
JURISDICTION: By constitutional
consent.--This
special jurisdiction which is often possessed by the
United
States stems, basically, out of article I, section 8, clause
17, of
the Constitution of the United States, which provides, in legal
effect,
that the Federal Government shall have exclusive legislative
jurisdiction
over such area, not exceeding 10 miles square, as may
become
the seat of government of the United States, and like authority
over
all places acquired by the Government, with the consent of the
States
involved, for various Federal purposes. It is the latter part
3
of the
clause, the part which has been emphasized, with which this
study
is particularly concerned. There is a
general public awareness
of the
fact that the United States Government exercises all
governmental
authority over the District of Columbia, by virtue of
power
conferred upon it by a clause of the Constitution. There is not
the
same awareness that under another provision of this same clause
the
United States has acquired over several thousand areas within the
States
some or all of these powers, judicial and executive as well as
legislative,
which under our Federal-State system of government
ordinarily
are reserved to the States.
By Federal reservation or States
cession.--For many years after
the
adoption of the Constitution, Federal acquisition of State-type
legislative
jurisdiction occurred only by direct operation of clause
17. The clause was activated through the
enactment of State statutes
consenting
to the acquisition by the Federal Government either of any
land,
or of specific tracts of land, within the State. In more recent
years
the Federal Government has in several instances made
reservations
of jurisdiction over certain areas in connection with the
admission
of a State into the Union. A third
means for transfer of
legislative
jurisdiction to the Federal Government.
Courts and other
legal
authorities have distinguished at various times between Federal
legislative
jurisdiction derived, on the one hand, directly from
operation
of clause 17, and, on the other, form a Federal reservation
or a
State cession of jurisdiction. In the
main, however, the
characteristics
of a legislative jurisdiction status are the same no
matter
by which of the three means the Federal Government acquired
such
status. Differences in these
characteristics will be specially
pointed
out in various succeeding portions of this work.
Governmental power merged in Federal
Government.--Whether by
operation
of clause 17, by reservation of jurisdiction by the United
States,
or by cession of jurisdiction by
4
States,
in many areas all governmental authority (with recent
exceptions
which will be noted) has been merged in the Federal
Government,
with none left in any State. By this
means same thousands
of
areas have become Federal in lands, sometimes called "enclaves," in
many
respects foreign to the States is which they are situated. In
general,
not State but Federal law is applicable in an area under the
exclusive
legislative jurisdiction of the United States, for
enforcement
not by State but Federal authorities, and in many
instances
not in State but in Federal courts.
Normal authority of a
State
over areas within its boundaries, and normal relationships
between
a State and its inhabitants, are disturbed, disrupted, or
eliminated,
as to enclaves and their residents.
The State no longer has the authority to
enforce its criminal
laws in
areas under the exclusive jurisdiction of the United States.
Privately
owned property in such areas is beyond the taxing authority
of the
State. It has been generally held that
residents of such areas
are not
residents of the State, and hence not only are not subject to
the
obligations of residents of the State but also are not entitled to
any of
the benefits and privileges conferred by the State upon its
residents. Thus, residents of Federal enclaves usually
cannot vote,
serve
on juries, or run for office. They do
not, as a matter of
right,
have access to State schools, hospitals, mental institutions,
or
similar establishments. The acquisition
of exclusive jurisdiction
by the
Federal Government render as unavailable to the residents of
the
affect areas the benefits of the laws and judicial and
administrative
processes of the State relating to adoption, the
probate
of wills and administration of estates, divorce, and many
other
matters. Police, fire-fighting,
notarial, coroner, and similar
services
performed by or under the authority of a State may not be
rendered
with legal sanction, in the usual case, in a Federal enclave.
EXERCISE OF EXCLUSIVE FEDERAL
JURISDICTION: Legislative little
exercised.--States
do not have authority to legislate for areas under
the
exclusive legislative jurisdiction of
5
the
United States, but Congress has not legislated for these areas
either,
except in some minor particulars.
Exercise as to crimes.--With respect to
crimes occurring within
Federal
enclaves the federal Congress has enacted the Assimilative
Crimes
Act, which adopts for enclaves, as Federal law, the State law
which
is in effect at the time the crime is committed. The Federal
Government
also has specifically defined and provided for the
punishment
of a number of crimes which may occur in Federal enclaves,
and in
such cases the specific provision, of course, supersedes the
Assimilative
Crimes Act.
Exercise as to civil matters.--Federal
legislation has been
enacted
authorizing the extension to Federal enclaves of the workmen's
compensation
and unemployment compensation laws of the States within
the
boundaries of which the enclaves are located. The Federal
Government
also has provided that State law shall apply in suits
arising
out of the death or injury of any person by the neglect or
wrongful
act of another in an enclave. It has
granted to the States
the
right to impose taxes on motor fuels sold on Government
reservations,
and sales, use, and income taxes on transactions or uses
occurring
or services performed on such reservations; it has allowed
taxation
of leasehold interests in Federal enclaves; and it has
retroceded
to the States
6
jurisdiction
pertaining to the administration of estates of residents
of
Veterans' Administration facilities.
This is the extent of Federal
legislation
enacted to meet the special problems existing on areas
under
the exclusive legislative jurisdiction of the United States.
RULE OF INTERNATIONAL LAW: Extended by courts to provide civil
law.--The
vacuum which would exist because of the absence of State law
or
Federal legislation with respect to civil matters in areas under
Federal
exclusive legislative jurisdiction has been partially filled
by the
courts, through extension to these areas of a rule of
international
law that when one sovereign in effect at the time of the
taking
which are not inconsistent with the laws or policies of the
second continue
in effect, as laws of the succeeding sovereign, until
changed
by that sovereign.
Problems arising under rule.--While
application of this rule to
Federal
enclaves does provide a code of laws for each enclave, the law
varies
from enclave to enclave, and sometimes in different parts of
the
same enclave, according to the changes in State law which occurred
in the
periods between Federal acquisition of legislative jurisdiction
over
the several enclaves or parts. The
variances are multiplied, of
course,
by the number of States. And Federal
failure to keep up to
date
the laws effective in these enclaves renders such laws
increasingly
obsolete with passage of time, so that business and other
relations
of long elsewhere discarded. Further,
many former State
laws
become wholly or partially inoperative immediately upon the
transfer
of jurisdiction, since the Federal Government does not
furnish
the machinery, formerly furnished by the State or under State
authority,
necessary to their operation. The Federal
Government makes
no
provision, by way of example, for executing the former State laws
relating
to notaries public,
7
coroners,
and law enforcement inspectors concerned with matters relate
to
public health and safety.
ACTION TO MITIGATE HARDSHIPS INCIDENT TO
EXCLUSIVE JURISDICTION:
By
Federal--State arrangement.--The requirement for access of resident
children
to school has been met by financial arrangements between the
Federal
Government and the State and local authorities; as a result,
for the
moment, at least, no children resident on exclusive
jurisdiction
areas are being denied a primary and secondary public
school
education. No provision, however, has
been made to enable
residents
to have access to State institutions of higher leaning on
the
same basis as State residents.
Federal efforts limited; State efforts
restricted.--While the
steps
taken by the Federal Government have served to eliminate some
small
number of the problems peculiar to areas of exclusive
jurisdiction,
Congress has not enacted legislation governing probate
of
wills, administration of estates, adoption, marriage, divorce, and
many
other matters which need to be regulated or provided for in a
civilized
community. Residents of such areas are
dependent upon the
willingness
of the State to make available to them its processes
relating
to such matters. Where the authority of
the State to act in
these
matters requires jurisdiction over the property involved, or
requires
that the persons affected be domiciled within the State, the
State's
proceedings are of doubtful validity.
Once a State has, by
one
means or another, transferred jurisdiction to the United States,
it is,
of course, powerless to control many of the consequences;
without
jurisdiction, it is without the authority to deal with many of
the
problems, and having transferred jurisdiction to the United
States,
it cannot unilaterally recapture any of the transferred
jurisdiction. The efforts of the State to ameliorate the
consequences
of
exclusive jurisdiction are, therefore, severely restricted.
8
By State statute or informal action, and
State reservations.--One
of the methods
adopted by some States to soften the effects of
exclusive
Federal legislative jurisdiction has consisted of granting
various
rights and privilege and rendering various services to
residents
of areas of exclusive jurisdiction, either by statute or by
informal
action; so, residents of certain enclaves enjoy the right to
vote,
attend schools, and use the State's judicial processes in
probate
and divorce matters; they frequently have vital statistics
maintained
for them and are rendered other services. The second
method
has consisted of not transferring to the Federal Government all
of the
State's jurisdiction over the federally owned property, or of
reserving
the right to exercise, in varying degrees, concurrent
jurisdiction
with the Federal Government as to the matters specified
in a
reservation. For example, a State, in
ceding jurisdiction to the
United
States, might reserve exclusive or concurrent jurisdiction as
to
criminal matters, or more commonly, concurrent jurisdiction to tax
private
property located within the Federal area.
RESERVATION OF JURISDICTION BY
STATES: Development of
reservations.--In
recent years, such reservations and withholdings
have
constituted the rule rather than the exception. In large part,
this is
accounted for by the sharp increase, in the 1930's, in the
rate of
Federal land acquisition, with a consequent deepening
awareness
of the practical effects of exclusive Federal jurisdiction.
In
earlier years, however, serious doubts had been entertained as to
whether
article I, section 8, clause 17, of the Constitution,
permitted
the State to make any reservations of jurisdiction, other
than
the right to serve civil and criminal process n an area, which
right
was not regarded as in derogation of the exclusive jurisdiction
of the
United States. Not until, relatively
recent years (1885) did
the
Supreme Court recognize as valid a reservation of jurisdiction in
a State
cession statute, and not until 1937 did it approve a similar
reservation
where jurisdiction is transferred by a consent under
clause
17, rather than by a cession. It is
9
clear
that today a State has complete discretion as to the
reservations
it may wish to include in its cession of jurisdiction to
the
United States or in its consent to the purchase of land by the
United
States. The only over-all limitations
that the reservation
must
not be one that will interfere with the performance of Federal
functions.
Early requirement, of R.S. 355, for
exclusive Federal
jurisdiction,--The
extent of the acquisition of legislative
jurisdiction
by the United States was influenced to an extreme degree
by the
enactment, in 1841, of a Federal statute prohibiting the
expenditure
of public money for the erection of public works until
there
had been received from the appropriate State the consent to the
acquisition
by the United States of the site upon which the structure
was to
be placed. The giving of such consent
resulted, of course, in
the transfer
of legislative jurisdiction to the United States by
operation
of clause 17. Not until 1940 was this
statute amended to
make
Federal acquisition of legislative jurisdiction optional rather
than
mandatory.
10
The
intervening 100-year period saw Federal acquisition of exclusive
legislative
jurisdiction over several thousand areas acquired for
Federal
purposes, since in the interest of facilitating the carrying
on of
Federal activities on areas within their boundaries each of the
States
consented to the acquisition of land by the United States
within
the State. Areas acquired with such
consent continue under the
exclusive
legislative jurisdiction of the United States, since only
with
respect to a very few areas has the Federal Government retroceded
to a
States jurisdiction previously acquired.
Present variety of jurisdictional
situations.--Removal of the
Federal
statutory requirement for acquisition of exclusive legislative
jurisdiction
has resulted in amendment by many States of their consent
and
cession statutes so as to reserve to the State the right to
exercise
various powers and authority. The
variety of the
reservations
in these amended statutes has created an almost infinite
number
of jurisdiction situations.
JURISDICTION STATUTES DEFINED: Exclusive legislative
jurisdiction.--In
this part II, as in part I, the term "exclusive
legislative
jurisdiction" is applied to situations wherein the Federal
Government
has received, by whatever method, all the authority of the
State,
with no reservation made to the State except of the right to
serve
process resulting from activities which occurred off the land
involved. This term is applied notwithstanding that
the State may
exercise
certain authority over the land, as may other States over
land
similarly situated, in consonance with the several Federal
statutes
which have been mentioned above.
11
Concurrent legislative jurisdiction.--The
term "concurrent
legislative
jurisdiction" is applied in those instances wherein in
granting
to the United States authority which would otherwise amount
to
exclusive legislative jurisdiction over an area the State concerned
has
reserved to itself the right to exercise, concurrently with the
United
States, all of the same authority.
Partial legislative jurisdiction.--The
term "partial legislative
jurisdiction"
is applied in those instances wherein the Federal
Government
has been granted for exercise by it over an area in a State
certain
of the State's authority, but where the State concerned has
reserved
to itself the right to exercise, by itself or concurrently
with
the United States, other authority constituting more than the
right
to serve civil or criminal process in the area (e.g., the right
to tax
private property).
Proprietorial interest only.--The term
"proprietorial interest
only"
is applied in those instances where the Federal Government has
acquired
some right of title to an area in a State but has not
obtained
any measure of the State's authority over the area. In
applying
this definition, recognition should be given to the fact that
the
United States, by virtue of its functions and powers and
immunities
with respect to areas in which are not possessed by
ordinary
landholders, and of the further fact that all its properties
and
functions are held or performed in a governmental rather than a
proprietary
(private) capacity.
OTHER FEDERAL RIGHTS OWNED AREAS: To carry out constitutional
duties.--The
fact that the United States has only a "proprietorial
interest"
in any particular federally owned area does not mean that
agencies
of the Federal Government are without power to carry out in
that
area the functions and duties assigned to them under the
Constitution
and statutes of the United States. On
the contrary, the
authority
and responsibility vested in the Federal Government by
various
provisions of the Constitution, such
12
as the
power to regulate commerce with foreign nations and among the
several
States (art. I, sec. 8, cl. 3), to establish Post Offices and
post
roads (art. I, sec. 8 cl. 7), and to provide and maintain a Navy
(art.
I, sec. 8, cl. 13) are independent of the clause 17 authority,
and
carry, certainly as supplemented by article I, section 18, of the
Constitution,
self-sufficient power for their own execution.
To make needful rules, and necessary and
proper laws, and effect
of Federal
supremacy clause.--There is also applicable to all
federally
owned land the constitutional power (art. IV, sec. 3, cl. 2)
given
to Congress, completely independent of the existence of any
clause
17 authority, "to * * * make all needful Rules and Regulations
respecting
the Territory or other of Congress (art. I, sec. 8, cl.
18),
"To make all Laws which shall be necessary and proper for
carrying
into Execution the foregoing Powers, and all other Powers
vested
by this Constitution in the Government of the United States, or
in any
Department or Officer thereof," is, of course, another
important
factor in the Federal functions. And
any impact of State or
local
laws upon the exercise of Federal authority under the
Constitution
is always subject to the limitations of what has bee
termed
the federal supremacy clause of the Constitution, article VI,
clause
2.
13
GENERAL BOUNDARIES OF THE WORK: The following pages deal, within
the
bounds generally outlined above, with the law--the constitutional
and
statutory provisions, the court decisions, and the written
opinions
of legal officers, Federal and State--relating to Federal
exercise,
or non-exercise, of legislative jurisdiction as to areas
within
the several States. They are not
purported to deal with the
law
cited may, or may not, be applicable.
Opinions are those of the
authorities
by whom they were rendered, and unless otherwise clearly
indicated
do not necessarily coincide with those of the Committee.
CHAPTER II
ORIGIN AND DEVELOPMENT
OF
LEGISLATIVE
JURISDICTION
ORIGIN OF ARTICLE I, SECTION 8, CLAUSE
17, OF THE CONSTITUTION:
Harassment
of the Continental Congress.--While the Continental
Congress
was meeting in Philadelphia on June 20, 1783, soldiers from
Lancaster,
Pennsylvania, arrived "to obtain a settlement of accounts,
which
they supposed they had a better chance for at Philadelphia than
at
Lancaster." On the next day, June
21, 1783:
The mutinous soldiers presented
themselves, drawn up in the
street the state-house, where Congress
had assembled. The
executive council of the state, sitting
under the same roof, was
called on for the proper
interposition. President Dickinson came
in [to the hall of Congress], and
explained the difficulty, under
actual circumstances, of bringing out the
militia of the place
for the suppression of the mutiny. He
thought that, without some
outrages on persons or property, the
militia could not be relied
on.
General St. Claire, then in Philadelphia, was sent for, and
desired to use his interposition, in
order to prevail on the
troops to return to the barracks. His report gave no
encouragement.
* * * * *
15
16
In the mean time, the soldiers remained
in their position,
without offering any violence, individuals
only, occasionally,
uttering offensive words, and, wantonly
pointing their muskets to
the windows of the hall of Congress. No danger from premeditated
violence was apprehended, but it was
observed that spirituous
drink, from the tippling-houses
adjoining, began to be liberally
served out to the soldiers, and might
lead to hasty excesses.
None were committed, however, and, about
three o'clock, the usual
hour, Congress adjourned; the soldiers,
though in some instances
offering a mock obstruction, permitting
the members to pass
through their ranks. They soon afterwards retired themselves to
the barracks.
* * * * *
The [subsequent] conference with the
executive [of Pennsylvania]
produced nothing but a repetition of
doubts concerning the
disposition of the militia to act unless
some actual outrage were
offered to persons or property. It was even doubted whether a
repetition of the insult to Congress
would be a sufficient
provocation.
During the deliberations of the
executive, and the suspense of
the committee, reports from the barracks
were in constant
vibration. At one moment, the mutineers were penitent and
preparing submissions; the next, they
were meditating more
violent measures. Sometimes, the bank was their object; then
the
seizure of the members of Congress, with
whom they imagined an
indemnity for their offence might be
stipulated.
The harassment by the soldiers which
began on June 20, 1783,
continued
through June 24, 1783. On the latter
date, the members of
Congress
abandoned hope that the State authorities would disperse the
soldiers,
and the Congress removed itself from Philadelphia. General
George
Washington had learned of the uprising only on the same date at
his
head-
17
quarters
at Newburgh, and, reacting promptly and vigorously, had
dispatched
a large portion of his whole force to suppress this
"infamous
and outrageous Mutiny" (27 Writings of Washington (George
Washington
Bicentennial Commission, G.P.O., 1938) 32), but news of his
action
undoubtedly arrived too late. The
Congress then met in
Princeton,
and thereafter in Trenton, New Jersey, Annapolis, Maryland,
and New
York City. There was apparently no
repetition of the
experience
which led to Congress' removal from Philadelphia, and
apparently
at no time during the remaining life of the Confederacy was
the
safety of the members of Congress similarly threatened or the
deliberations
of the Congress in any way hampered.
However, the members of the Continental
Congress did not lightly
dismiss
the Philadelphia incident from their minds.
On October 7,
1783,
the Congress, while meeting in Princeton, New Jersey, adopted
the
following resolution:
That buildings for the use of Congress be
erected on or near the
banks of the Delaware, provided a
suitable district can be
procured on or near the banks of the said
river, for a federal
town; and that the right of soil, and an
exclusive or such other
jurisdiction as Congress may direct,
shall be vested in the
United States.
Available
records fail to disclose what action, if any, was taken to
implement
this resolution. In view of the absence
of a repetition of
the
experience which gave rise to the resolution, it may be that the
feelings
of urgency for the acquisition of exclusive jurisdiction
diminished.
18
Debates in Constitutional Convention
concerning clause 17.--Early
in the
deliberations of the Constitutional Convention, on May 29,
1787,
Mr. Charles Pinckney, of South Carolina, submitted a draft of a
proposed
constitution, which authorized the national legislature to
"provide
such dockyards and arsenals, and erect such fortifications,
as may
be necessary for the United States, and to exercise exclusive
jurisdiction
therein." This proposed
constitution authorized, in
addition,
the establishment of a seat of government for the United
States
"in which they shall have exclusive jurisdiction." No further
proposals
concerning exclusive jurisdiction were made in the
Constitutional
Convention until August 18, 1787.
In the intervening period, however, a
variety of considerations
were
advanced in the Constitutional Convention affecting the
establishment
of the seat of the new government, and a number of them
were
concerned with the problem of assuring the security and integrity
of the
new government against interference by any of the States.
Thus,
on July 26, 1787, Mason, of Virginia, urged that some provision
be made
in the Constitution "against choosing for the seat of the
general
government the city or place at which the seat of any state
government
might be fixed," because the
establishment of the seat of
government
in a State capital would tend "to produce disputes
concerning
jurisdiction" and because the intermixture of the two
legislatures
would tend to give "a provincial tincture" to the
national
deliberations. Subsequently, in the
course of the debates
concerning
a proposed provision which, it was suggested, would have
permitted
the two houses of Congress to meet at places chosen by them
from
time to time, Madison, on August 11, 1787, urged the desirability
of a
permanent seat of government on the ground, among others, that
"it
was more necessary that the government should be in that position
from
19
which
it could contemplate with the most equal eye, and sympathize
most
equally with, every part of the nation."
The genesis of article I, section 8,
clause 17, of the
Constitution,
is to be found in proposals made by Madison and Pinckney
on
August 18, 1787. For the purpose of
having considered by the
committee
of detail whether a permanent seat of government should be
established,
Madison proposed that the Congress be authorized:
To
exercise, exclusively, legislative authority at the seat of
the general government, and over a
district around the same not
exceeding square miles, the consent of the legislature of
the state or states, comprising the same,
being first obtained.
* * * * *
To authorized the executive to procure,
and hold, for the use of
the United States, landed property, for
the erection of forts,
magazines, and other necessary buildings.
Pinckney's
proposal of the same day, likewise made for the purpose of
reference
to the committee of detail, authorized Congress:
To fix, and permanently establish, the
seat of government of the
United States, in which they shall
possess the exclusive right of
soil and jurisdiction.
It may be noted that Madison's proposal
made no provision for
Federal
exercise of jurisdiction except at the seat of Government, and
Pinckney's
new proposal included no reference whatever to areas other
than
the seat of Government.
On September 5, 1787, the committee of
eleven, to whom the
proposals
of Madison and Pinckney had been referred, proposed that the
following
power be granted to Congress:
To exercise exclusive legislation in all cases
whatsoever over
such district (not exceeding ten miles
square) as may, by cession
of particular states and the acceptance
20
of the legislature, become the seat of
government of the United
States; and to exercise like authority
over all places purchased
for the creation of forts, magazines,
arsenals, dock-yards, and
other needful buildings.
Although
neither the convention debates, nor the proposals made by
Madison
and Pinckney on August 18, 1787, had made any reference to
Federal
exercise of jurisdiction over areas purchased for forts, etc.,
the
committee presumably included in its deliberations on this subject
the
related provision contained in the proposed constitution which had
been
submitted by Pinckney on May 29, 1787, which provided for such
exclusive
jurisdiction.
The debate concerning the proposal of the
committee of eleven was
brief,
and agreement concerning it was reached quickly, on the day of
the
submission of the proposal to the Convention.
The substance of
the
debate concerning this provision was reported by Madison as
follows:
So much of the fourth clause as related
to the seat of government
was agreed to, new. con.
On the residue, to wit, "to exercise
like authority over all
places purchased for forts, &
c."--
MR. GERRY contended that this power
might be made use of to
enslave any particular state by buying up
its territory, and that
the strongholds proposed would be a means
of awing the state into
an undue obedience to the general
government.
MR. KING thought himself the
provision unnecessary, the
power being already involved; but would
move to insert, after the
word "purchased," the words,
"by the consent of the legislature
of the state." This would certainly make the power safe.
MR. GOUVERNEUR MORRIS seconded the
motion, which was agreed
to, nem. con,; as was then the residue of
the clause, as amended.
21
On
September 12, 1787, the committee of eleven submitted to the
Convention
a final draft of the Constitution. The
committee had made
only
minor changes in the clause agreed to by the Convention on
September
5, 1787, in matters of style, and article I, section 8,
clause
17, was contained in the draft in the form in which it appears
in the
Constitution today.
Aside from disclosing the relatively
little interest manifested
by the
Convention in that portion of clause 17 which makes provision
for
securing exclusive legislative jurisdiction over areas within the
States,
the debates in the Constitutional Convention relating to
operation
of Federal areas, as reported by Madison, are notable in
several
other respects. Somewhat surprising is
the fact that
consideration
apparently was not given to the powers embraced in
article
I, section 8, clause 18, and the supremacy clause in article
VI, as
a means for securing the integrity and independence of the
geographical
nerve center of the new government, and, more
particularly,
of other areas on which the functions of the government
would
in various aspects be performed. In
view of the authority
contained
in the two last-mentioned provisions, the provision for
exclusive
jurisdiction appears to represent, to considerable extent,
an
attempt to resolve by the adoption of a legal concept a problem
stemming
primarily from a lack of physical power.
The debates in the Constitutional
Convention are also of interest
in the
light they cast on the purpose of the consent requirement of
clause
17. There appears to be no question but
that the requirement
was
added simply to foreclose by the Federal Government of all of the
property
within that State. Could the Federal
Government acquire
exclusive
jurisdiction over all property purchased by it within a
State,
without the consent of that State, the latter would have no
means
of preserving its integrity. Neither in
the debates of the
Constitu-
22
tional
Convention, as reported by Madison, nor in the context in which
the
consent requirement was added, is there any suggestion that the
consent
requirement had the additional object of enabling a State to
preserve
the civil rights of persons resident in areas over which the
Federal
Government received legislative jurisdiction.
As will be
developed
more fully below, in the course of the Virginia ratifying
conventions
and elsewhere, Madison suggested that the consent
requirement
might be employed by a State to accomplish such objective.
Debates in State ratifying
conventions.--Following the conclusion
of the
work of the Constitutional Convention in Philadelphia, article
I,
section 8, clause 17, received the attention of a number of State
ratifying
conventions. The chief public defense
of its provisions is
to be
found in the Federalist, #42, by Madison (Dawson, 1863). In
that
paper, Madison described the purpose and scope of clause 17 as
follows:
The indispensable necessity of complete
authority at the seat of
Government, carries its own evidence with
it. It is a power
exercised by every Legislature of the
Union, I might say of the
world, by virtue of its general
supremacy. Without it, not only
the public authority might be insulted
and its proceedings be
interrupted with impunity; but a
dependence of the members of the
General Government on the State
comprehending the seat of the
Government, for protection in the
exercise of their duty, might
being on the National Councils an imputation
of awe or influence,
equally dishonorable to the Government
and dissatisfactory to the
other members of the Confederacy. This consideration has the
more weight, as the gradual accumulation
of public improvements
at the stationary residence of the
Government would be both too
great a public pledge to be left in the
hands of a single State,
and would create so many obstacles to a
removal of the
Government, as still fur-
23
ther to abridge its necessary independence. The extent of this
Federal district is sufficiently
circumscribed to satisfy every
jealousy of an opposite nature. And as it is to be appropriated
to this use with the consent of the State
ceding it;; as the
State will no doubt provide in the
compact for the rights and the
consent of the citizens inhabiting it; as
the inhabitants will
find sufficient inducements of interest
to become willing parties
to the cession; as they will have had
their voice in the election
of the Government, which is to exercise
authority over them; as a
municipal Legislature for local purposes,
derived from their own
suffrages, will of course be allowed
them; and as the authority
of the Legislature of the State, and of
the inhabitants of the
ceded part of it, to concur in the
cession, will be derived from
the whole People of the State, in their
adoption of the
Constitution, every imaginable objection
seems to be obviated.
The necessity of a like authority over
forts, magazines, etc.,
established by the General Government, is
not less evident. The
public money expended on such places, and
the public property
deposited in them, require, that they should
be exempt from the
authority of the particular State. Nor would it be proper for
the places on which the security of the
entire Union may depend,
to be in any degree dependent on a
particular member of it. All
objections and scruples are here also
obviated, by requiring the
concurrence of the States concerned, in
every such establishment.
In both the North Carolina and Virginia
ratifying conventions,
clause
17 was subjected to severe criticism.
The principal criticism
levied
against it in both conventions was that it was destructive of
the
civil rights of the residents of the ares subject to its
provisions. In the North Carolina convention, James
Iredell
(subsequently
a United States Supreme Court justice, 1790-1799)
defended
the clause against this criticism,
24
and at
the same time urged the desirability of its inclusion in the
Constitution,
as follows:
They are to have exclusive power of
legislation--but how?
Wherever they may have this district,
they must possess it from
the authority of the state within which
it lies; and that state
may stipulate the conditions of the
cession. Will not such state
take care of the liberties of its own people? What would be the
consequence if the seat of the government
of the United States,
with all the archives of American, was in
the power of any one
particular state? Would not this be most
unsafe and humiliating?
Do we not all remember that, in the year
1783, a band of soldiers
went and insulted Congress? The sovereignty of the United States
was treated with indignity. They applied for protection to the
state they resided in, but could obtain
none. It is to be hoped
that such a disgraceful scene will never
happen again; but that,
for the future, the national government
will be able to protect
itself. * * *
In the
Virginia convention, Patrick Henry voiced a number of
objections
to clause 17. Madison undertook to
defend it against these
objections:
He [Henry] next objects to the exclusive
legislation over the
district where the seat of government may
be fixed. Would he
submit that the representatives of this
state should carry on
their deliberations under the control of
any other of the Union?
If any state had the power of legislation
over the place where
Congress should fix the general
government, this would impair the
dignity, and hazard the safety, of
Congress. If the safety of
the Union were under the control of any
particular state, would
not foreign corruption probably prevail,
in such a state, to
induce it to exert its controlling
influence over the members of
the general govern-
25
ment?
Gentlemen cannot have forgotten the disgraceful insult
which Congress received some years
ago. When we also reflect
that the previous cession of particular
states is necessary
before Congress can legislate exclusively
any where, we must,
instead of being alarmed at this part,
heartily approve of it.
Patrick Henry specifically raised a
question as to the fate of
the
civil rights of inhabitants of the seat of the government, and
further
suggested that residents of that area might be the recipients
of
exclusive emoluments from Congress and might be excused from the
burdens
imposed on the rest of society. Mason also raised the question
of
civil rights of the inhabitants, and, in addition, suggested that
the
seat of government might become a sanctuary for criminals.
Madison
answered some of these objections as follows:
I did conceive, sir, that the clause
under consideration was one
of those parts which would speak its own
praise. It is hardly
necessary to say any thing concerning
it. Strike it out of the
system, and let me ask whether there
would not be much larger
scope for those dangers. I cannot comprehend that the power of
legislating over a small district, which
cannot exceed ten miles
square, and may not be more than one
mile, will involve the
dangers he apprehends. If there be any knowledge in my mind of
the nature of man, I should think that it
would be the last thing
that would enter into the mind of any man
to grant exclusive
advantages, in a very circumscribed
district, to the prejudice of
the community at large. We make suppositions, and afterwards
deduce conclusions from them, as if they
were established axioms.
But, after all, being home this question
to ourselves. Is it
probable that the members from Georgia,
New Hampshire, & c., will
concur to sacrifice
26
the privileges of their friends? I believe that, whatever state
may become the seat of the general
government, it will become the
object of the jealousy and envy of the
other states. Let me
remark, if not already remarked, that
there must be a cession, by
particular states, of the district to
Congress, and that the
states may settle the terms of the
cession. The states may make
what stipulation they please in it, and,
if they apprehend any
danger, they may refuse it altogether. How could the government
be guarded from the undue influence of
particular states, or from
insults, without such exclusive power? If
it were at the pleasure
of a particular state to control the
session and deliberations,
of Congress, would they be secure from
insults, or the influence
of such state? If this commonwealth depended, for the freedom of
deliberation, on the laws of any state
where it might be
necessary to sit, would it not be liable
to attacks of that
nature (and with more indignity) which
have been already offered
to Congress? * * * We must limit our
apprehensions to certain
degrees of probability. The evils which they urge might result
from this clause are extremely
improbable; nay, almost
impossible.
The
other objections raised in the Virginia convention to clause 17
were
answered by Lee. His remarks have been
summarized as follows:
Mr. Lee strongly expatiated on the
impossibility of securing any
human institution from possible
abuse. He thought the powers
conceded in the paper on the table not so
liable to be abused as
the powers of the state governments. Gentlemen had suggested
that the seat of government would become
a sanctuary for state
villains, and that, in a short time, ten
miles square would
subjugate a country of eight hundred
miles
27
square.
This appeared to him a most improbable possibility; nay,
he might call it impossibility. Were the place crowded with
rogues, he asked if it would be an
agreeable place of residence
for the members of the general
government, who were freely chosen
by the people and the state governments.
Would the people be so
lost to honor and virtue as to select men who would willingly
associate with the most abandoned
characters? He thought the
honorable gentleman's objections against
remote possibility of
abuse went to prove that government of no
sort was eligible, but
that a state of nature was preferable to
a state of civilization.
He apprehended no danger; and thought
that persons bound to
labor, and felons, could not take refuge
in the ten miles square,
or other places exclusively governed by
Congress, because it
would be contrary to the Constitution,
and palpable usurpation,
to protect them.
In the ratifying conventions, no express
consideration, it seems,
was
given to those provisions of clause 17 permitting the
establishment
of exclusive legislative jurisdiction over areas within
the
States. Attention apparently was
directed solely to the
establishment
of exclusive legislative jurisdiction over the seat of
government. However, the arguments in support of, and criticisms
against,
the establishment of exclusive legislative jurisdiction over
the
seat of government are in nearly all instances equally applicable
to the
establishment of such jurisdiction over areas within the
States. The difference between the two cases is
principally one of
degree,
and in this fact in all probability lies the explanation why
areas
within the States were not treated as a separate problem in the
ratifying
conventions. Because of the similarity
between the two, the
arguments
concerning the seat of government are relevant in tracing
the
historical background of exclusive legislative jurisdiction over
areas
within the States.
28
Federal legislation prior to 1886.--The
matter of exclusive
legislative
jurisdiction received the attention of the first Congress
in its
first session. It provided that the
United States, after the
expiration
of one year following the enactment of the act, would not
defray
the expenses of maintaining light-houses, beacons, buoys and
public
piers unless the respective States in which they were situated
should
cede them to the United States, "together with the jurisdiction
of the
same." The same act also authorized the construction of a
lighthouse
near the entrance of Chesapeake Bay "when ceded to the
United
States in the manner aforesaid, as the President of the United
States
shall direct." The policy of
requiring cession of jurisdiction
as a
condition precedent to the establishment and maintenance of
lighthouses
was followed by other early Congresses, and it
subsequently
became a general requirement.
Unlike the legislation relating to the
maintenance and
acquisition
of lighthouses, the legislation of the very early
Congresses
authorizing the acquisition by the United States of land
for
other purposes did not contain any express jurisdiction
requirement. The only exceptions consist of legislation
enacted in
1794,
which authorized the establishment of "three or four arsenals,"
provided
that "none of the said arsenals [shall] be erected,until
purchases
of the land necessary for their accommodation be made with
the
consent of the legislature of the
29
state,
in which the same is intended to be erected," and legislation
in 1826
authorizing the acquisition of land for purposes of an
arsenal. Express jurisdiction requirements were not,
however,
contained
in other early acts of Congress providing for the purchase
of land
at West Point, New York, for purposes of fortifications and
garrisons,
the erection of docks, the establishment of Navy hospitals,
the
exchange of one parcel of property for another for purposes of a
fortification,
and the establishment of an arsenal at Plattsburg, New
York. An examination of the early federal statutes
discloses that in
various
other instances the consent of the State was not made a
prerequisite
to the acquisition of land for fortifications and a
customhouse.
The absence of express jurisdictional
requirements in Federal
statutes
did not necessarily result in the United States acquiring a
proprietorial
interest only in properties. In
numerous instances,
apparently,
jurisdiction over the acquired properties was ceded by the
States
even without an express Federal statutory requirement therefor.
In other instances, however, as in the
case of the property at
Plattsburg,
New York, the United States has never acquired any degree
of
legislative jurisdiction. In at least
one instance, a condition
imposed
in a State cession statute proved fatal to the acquisition by
the
United States of legislative jurisdiction; thus, in United States
v.
Hopkins, 26 Fed. Cas. 371, No. 15,387a (C.C.D. Ga., 1830), it was
held
that a State statute which ceded jurisdiction for "forts or
fortifications"
did not serve to vest in the United States legislative
jurisdiction
over an area used for an arsenal.
30
In 1828, Congress sought to achieve a
uniformity in Federal
jurisdiction
over areas owned by the United States by authorizing the
President
to procure the assent of the legislature of and State,
within
which any purchase of land had been made for the erection of
forts,
magazines, arsenals, dockyards and other needful buildings
without
such consent having been obtained, and by authorizing him to
obtain
exclusive jurisdiction over widely scattered areas throughout
the
United States. The remarks of Representative Marvin, of New York,
who
questioned the practicality of legislative jurisdiction, were
summarized
as follow:
MR. MARVIN, of New York, said, that the
present discussion which
had arisen on the amendment, had, for the
first time, brought the
general character of the bill under his
observation. Indeed, no
discussion until now had been had of the
merits of the bill; and,
while it seemed in its general objects,
to meet with almost
universal assent, from the few moments
his attention had been
turned to the subject, he was led to
doubt whether the bill was
one that should be passed at all. One of the prominent
provisions of the bill, made it the duty
of the Executive to
obtain the assent of the respective
States to all grants of land
made within them, to the General
Government, for the purposes of
forts, dockyards, &c. and the like
assent to all future purchases
for similar objects, with a view to vest
in the United States
exclusive jurisdiction over the lands so
granted. The practice
of the Government hitherto had been, in
most cases, though not in
all, to purchase the right of soil, and
to enter into the
occupancy for the purpose intended,
without also acquiring
exclusive jurisdiction, which, in all
cases, could be done, where
such exclusive powers were deemed important, The
31
National Government were exclusively
vested with the power to
provide for the common defence; and, in
the exercise of this
power, the right to acquire land, on
which to erect
fortifications, was not to be
questioned. While the National
Government held jurisdiction under the
Constitution for all
legitimate objects, the respective States
had also a concurrent
jurisdiction. As no inconvenience, except, perhaps, from the
exercise of the right of taxation, in a
few instances, under the
State authorities, had hitherto been
experienced from a want of
exclusive jurisdiction, he was not, at
this moment, prepared to
give his sanction to the policy of the
bill. Mr. M. said, he
could see most clearly, cases might
arise, where, for purposes of
criminal jurisdiction, a concurrent power
on the part of the
State might be of vital importance. Your public fortresses may
become places of refuge from State
authority. Indeed, they may
themselves be made the theatres where the
most foul and dark
deeds may be committed. The situation of your fortifications
must, of necessity, be remote. In times of peace, they were
often left with, perhaps, no more than a
mere agent, to look to
the public property remaining in them;
thus rendered places too
will befitting dark conspiracies and acts
of blood. Their remote
situation, and almost deserted condition,
would retard the arm of
the General Government in overtaking the
offender, should crimes
be committed. While no inconvenience could result from a
concurrent jurisdiction on the part of
the State and National
tribunals, the public peace would seem to
be thereby better
secured.
Mr. M. instanced a case of murder committed in Fort
Niagara, some years ago, where after
trial and conviction in the
State courts, an exception was taken to
the proceedings, from an
alleged exclusive jurisdiction in the
courts of the United
States.
The question thus raised, was decided, after argument in
the Supreme court of the State
32
of New York, sustaining a concurrent
jurisdiction in the State
tribunals. Mr. M. regarded
the right claimed, and exercised by
the State, on that occasion,
important. If important then, there
were reasons, he thought, why it should
not be less so now.
The legislation was nevertheless enacted,
and a provision thereof
has
existed as section 1838 of the Revised Statutes of the United
States. Following the enactment of this statute,
Congress did not
take
any decisive action with respect to legislative jurisdiction
until
September 11, 1841, when it passed a joint resolution, which
subsequently
became R.S. 355, requiring consent by a State to Federal
acquisition
of land (and therefore a cession of jurisdiction by the
State
by operation of article I, section 8, clause 17, of the
Constitution),
as a condition precedent to the expenditure of money by
the
Federal Government for the erection of structures on the land. As
in the
case of R. S. 1838, the Congressional debates do not indicate
the
considerations prompting the enactment of R.S. 355. There had,
however,
been a controversy between the United States and the State of
New
York concerning title to (not jurisdiction over) a tract of land
on
Staten Island, upon which fortifications had been maintained at
Federal
expense, and the same Congress which enacted the joint
resolution
of 1841 refused to appropriate funds for the repair of
these
fortifications until the question of title had been settled.
The
1841 joint resolution also required the Attorney General to
approve
the validity of title before expenditure of public funds for
building
on land. By these two means the
Congress pre-
33
sumably
sought to avoid a repetition of the Staten Island incident,
and to
avoid all conflict with States over title to land. While these
suggested
considerations underlying the enactment of the 1841 joint
resolution
are based entirely upon historical circumstances
surrounding
its adoption, the available records of not offer any other
explanation,
and there has not been discovered any means for
ascertaining
definitely whether Congress was aware, in enacting the
joint
resolution, that it was thereby requiring States to transfer
jurisdiction
to the Federal Government over most areas thereafter
acquired
by it. Debate had in the Senate in 1850
(Cong. Globe, 31st
Cong.,
1st sess. 70), indicates that as of that time it was not
understood
that the joint resolution required such transfer.
Thirty years after the adoption of the
1841 joint resolution, the
effects
of exclusive legislative jurisdiction on the civil rights of
residents
of areas subject to such jurisdiction were forcibly brought
to the
attention of Congress. In 1869, the Supreme Court of Ohio, in
Sinks
v. Reese, 19 Ohio St. 309, held that inmates of a soldiers' home
located
in an area of exclusive legislative jurisdiction in that State
were
not entitled to vote in State and local elections,
notwithstanding
the reservation of such rights in the Ohio statute
transferring
legislative jurisdiction to the United States.
As a
consequence
of this decision, Congress retroceded jurisdiction over
the
soldiers' home to the State of Ohio.
The enactment of this
retrocession
statute was preceded by extensive debates in the Senate.
In the course
of the debates, questions were raised as to the
constitutional
authority of Congress to retrocede jurisdiction which
had
been vested in the United States pursuant to article I, section 8,
clause
17, of the Constitution, and it was also suggested that
exclusive
legislative jurisdiction was essential to enforce discipline
on a
military reservation. The
34
constitutional
objections to retrocession of jurisdiction did not
prevail,
and, whatever the views of the senators may have been at that
time as
to the necessity for Federal exercise of legislative
jurisdiction
over military areas, the views expressed by Senator
Morton,
of Indiana, prevailed:
Mr. President, there might be a
reason for a more extended
jurisdiction in the case of an arsenal or a fort than i the case
of an asylum. I admit that there is no necessity at all for
exclusive jurisdiction or an extended
jurisdiction in the case of
an asylum. Now, take the case of a fort.
Congress, of course,
would require the jurisdiction necessary
to punish a soldier for
drunkenness, which is the case put be the
Senator, or to punish
any violation of military law or
discipline; but is it necessary
that this Government should have
jurisdiction if two of the hands
engaged in plowing or gardening should
get into a fight? Such
cases do not come within the reasoning of
the rule at all. It so
happens, however, that exclusive
jurisdiction has been given in
those cases, but I contend that it has
always been an
inconvenience and was unnecessary. * * *
In addition to providing for, and
subsequently requiring, the
acquisition
of legislative jurisdiction, the early Congresses enacted
legislation
designed to meet, at least to an extent, some of the
problems
resulting from the acquisition of legislative jurisdiction.
In
attempting to cope with some of these problems, the efforts of some
of the
States antedated legislation passed by Congress for the same
purposes. When granting consent pursuant to article I,
section 8,
clause
17, with respect to lighthouses and lighthouse sites some of
the
States from earliest times reserved the right to serve criminal
and
civil
35
process
in the affected areas. Recognizing the
fact of the existence
of
these reservations, together with the adverse consequences which
would
result from an inability on the part of the States to serve
process
in areas over which jurisdiction had passed to the Federal
Government,
Congress in 1795 enacted a statute providing that such
reservations
by a State would be deemed to be within a Federal
statutory
requirement that legislative jurisdiction be acquired by the
United
States, and, in addition, Congress provided that regardless of
whether
a State had reserved the right to serve process in places
where
lighthouses, beacons, buoys or public piers had been or were
authorized
to be erected or fixed as to which the State had ceded
legislative
jurisdiction to the United States, it would nevertheless
have
the right to do so.
While the right thus reserved to the
States to serve criminal and
civil
process served to prevent exclusive legislative jurisdiction
areas
from becoming a haven for persons charged with offenses under
State
law, R.S. 4662 did not serve to enlarge the jurisdiction of the
State
to enforce its criminal laws within
39
such
areas. Only Congress could define
offenses in such areas and
provide
for their punishment.
At an early date, Congress initiated a
series of legislative
enactments
to cope with the problem of crimes within Federal areas.
In
1790, it provided for the punishment of murder, larceny and certain
other
crimes, and complete criminal sanctions were provided for by the
enactment
of the first Assimilative Crimes Act in 1825.
This latter
enactment
adopted as Federal law for areas subject to exclusive
legislative
jurisdiction the criminal laws of the State in which a
given
area was located.
While making provision for punishment for
criminal offenses in
areas
subject to exclusive legislative jurisdiction, and authorizing
the
States to serve criminal and civil process in certain of such
areas,
Congress did not give corresponding attention to civil matters
arising
in the areas. Although Congress
retroceded jurisdiction in
order
to restore the voting rights of residents of the soldiers' home
in
Ohio, no other steps were taken to preserve generally the civil
rights of
residents of areas of exclusive legislative jurisdiction.
The
confident predictions in the State ratifying conventions that
civil
rights would be preserved by means of appropriate conditions in
State
consent statutes did not materialize.
Only in the case of the
cession
of jurisdiction to the United States for the establishment of
the
District of Columbia was even a gesture made in a State consent
statute
towards preserving the rights of its citizens.
Thus, in its
act of
cession, Virginia included the following proviso:
And provided also, That the jurisdiction
of the laws of this
commonwealth over the persons and
property of individuals
residing within the limits of the cession
aforesaid, shall not
cease or determine until Congress,
39
having accepted the said cession, shall,
by law, provide for the
government thereof, under their
jurisdiction, in the manner
provided by the article of the
Constitution before recited
[article I, section 8].
In
1790, Congress accepted this cession, and in its acceptance
included
the following corresponding proviso:
*
* * Provided nevertheless, That the operation of the laws of
the state within such district shall not be
affected by this
acceptance, until the time fixed for the
removal of the
government thereto, and until Congress
shall otherwise by law
provide.
The
constitutionality of these provisos in the Virginia cession
statute
and the Federal acceptance statute was sustained in Young v.
Bank of
Alexandria, 4 Cranch 384 (1808).
Early court decisions. The decisions of the courts prior to 1885
relating
to matters of exclusive legislative jurisdiction are
relatively
few and of varying importance.
It was held at an early date that the
term "exclusive
legislation,"
as it appears in article I, section 8, clause 17, of the
Constitution,
is synonymous with "exclusive jurisdiction." United
States
v. Bevans, 3 Wheat. 336, 388 (1818);
United States v. Cornell,
25 Fed.
Cas. 646, No. 14,867 (C.C.D.R.I., 1819), "the national and
municipal
powers of government, of every description, are united in
the
government of the Union." Pollard
v. Hagan, 3 How. 212, 223
(1845). Reservation by a State of the right to serve
criminal and
civil
process in a Federal area is, it was held, in no way
inconsistent
with the exercise by the United States of exclusive
jurisdiction
over the area. United States v.
Travers, 28 Fed. Cas.
204,
No. 16,537 (C.C.D. Mass., 1814); United States v. Davis, 25 Fed.
Cas.
38
781,
No. 14,930 (C.C.D. Mass. 1829); United States v. Cornell, supra;
United
States v. Knapp, 26 Fed. Cas. 792, No. 15,538 (S.D.N.Y., 1849).
Justice Story, in United States v. Cornell,
supra, expressed
doubts,
however, as to "whether congress are by the terms of the
constitution,
at liberty to purchase lands for forts, dock-yards,
etc.,
with the consent of a State Legislature, where such consent is
so
qualified that it will not justify the 'exclusive legislation' of
congress
there." This view has not
prevailed. In United States v.
Hopkins,
26 Fed. Cas. 371, No. 15,387a (C.C.D. Ga., 1830), it was, on
the
other hand, held that a State may limit its consent with the
condition
that the area in question be used for fortifications; if
used as
an arsenal, the United States would not have exclusive
jurisdiction.
In considering the application of the
Assimilative Crimes Act of
1825,
the United States Supreme Court held that it related only to the
criminal
laws of the State which were in effect at the time of its
enactment
and not to criminal laws subsequently enacted by the State.
United
States v. Paul, 6 Pet, 141 (1832). In United States v. Wright,
28 Fed.
Cas. 791, No. 16,774 (D. Mass., 1871), it was held that the
Assimilative
Crimes Act adopted not only the statutory criminal laws
of the
State but also the common law of the State as to criminal
offenses.
The power of exclusive legislation, it
was said by the United
States
Supreme Court in an early case, is not limited to the exercise
of
powers by the Federal Government in the specific area acquired with
the
consent of the State, but includes incidental powers necessary to
the
complete and effectual execution of the power of exclusive
jurisdiction;
thus, the United States may punish a person, not
resident
o the Federal area, for concealment of his knowledge
concerning
a felony committed within the Federal area.
Cohens v.
Virginia,
6 Wheat. 264, 426-429 (1821).
Article I, section 8, clause 17, it was
held at an early date,
does
not extend to places rented by the United States. United
39
States
v. Tierney, 28 Fed. Cas. 159, No. 16,517 (C.C.S.D. Ohio, 1864).
The
consent specified therein must be given by the State legislature,
not by
a constitutional convention, it was held in an early opinion of
the
United States Attorney General. 12 Ops.
A. G. 428 (1868). But,
it will
be seen, it was later decided that the United States may
acquire
exclusive legislative jurisdiction by means other than under
clause
17. In Ex parte Tatem, 23 Fed. Cas. 708, No. 13,759 (E.D. Va.,
1877),
it was held that the term "navy yard," as it appeared in a
Virginia
cession statute, "meant not merely the land on which the
government
does work connected with ships of the navy, but the waters
contiguous
necessary to float the vessels of the navy while at the
nave
yard." The consent provided for by
article I, section 8, clause
17, of
the Constitution, may be given either before or after the
purchase
of land by the United States. Ex parte
Hebard, 11 Fed. Cas.
1010,
No. 6312 (C.C.D. Kan., 1877). The United States may, if it so
choses,
purchase land within a State without the latter's consent,
but, if
it does so, it does not have any legislative jurisdiction over
the
areas purchased. United States v. Stahl, 27 Fed. Cas. 1288, No.
16,373
(C.C.D. Kan., 1868).
In an early New York case, the court
expressed the view that
State jurisdiction
over an area purchased by the United States with
the
consent of the State continues until such time as the United
States
undertakes to exercise jurisdiction.
People v. Lent, 2 Wheel.
548
(N.Y., 1819). This view has not
prevailed. In a State case
frequently
cited connection with matters relating to the civil rights
of
residents of areas of exclusive legislature jurisdiction, the
Massachusetts
Supreme Court, in Commonwealth v. Clary, 8 Mass. 72
(1811),
said (p. 77):
An objection occurred to the minds of
some members of the Court,
that if the laws of the commonwealth have
no force within this
territory, the inhabitants thereof cannot
exercise any civil or
political privileges. * * *
40
We
are agreed that such consequence necessarily follows; and we
think that no hardship is thereby imposed
on those inhabitants;
because they are not interested in any
elections made within the
state, or held to pay any taxes imposed
by its authority, nor
bound by any of its laws.--And it might
be very inconvenient to
the United States to have their laborers,
artificers, officers,
and other persons employed in their
service, subjected to the
services required by the commonwealth of
the inhabitants of the
several towns.
In
Opinion of the Justices, 1 Metc. 580 (Mass., 1841), the Supreme
Court
of Massachusetts in essence restated this view. Thus, although
the
fears expressed in the Virginia and North Carolina ratifying
conventions
as to the effects of legislative jurisdiction on the civil
rights
of inhabitants of areas subject to such jurisdiction were
completely
borne out, these effects were at the same time interpreted
as
distinct advantages for the parties concerned.
CHAPTER III
ACQUISITION OF LEGISLATIVE
JURISDICTION
THREE METHODS FOR FEDERAL ACQUISITION OF
JURISDICTION:
Constitutional
consent.--The Constitution gives express recognition
to but
one means of Federal acquisition of legislative jurisdiction--
by
State consent under article I, section 8, clause 17. The debates
in the
Constitutional Convention and State ratifying conventions
leave
little doubt that both the opponents and proponents of Federal
exercise
of exclusive legislature jurisdiction over the seat of
government
were of the view that a constitutional provision such as
clause
17 was essential if the Federal government was to have such
jurisdiction. At no time was it suggested that such a
provision was
unessential
to secure exclusive legislative jurisdiction to the
Federal
Government over the seat of government.
While, as has been
indicated
in the preceding chapter, little attention was given in the
course of
the debates to Federal exercise of exclusive legislative
jurisdiction
over areas other than the seat of government, it is
reasonable
to assume that it was the general view that a special
constitution
provision was essential to enable the United States to
acquire
exclusive legislative jurisdiction over any area. Hence,the
proponents
of exclusive legislative jurisdiction over the seat of
government
and over federally owned areas within the States defended
the
inclusion in the Constitution of a provision such as article I,
section
8, clause 17. And in United States v.
Railroad Bridge Co.,
27 Fed.
Cas. 686, 693, No. 16,114 (C.C.N.D. Ill., 1855), Justice
McLean
suggested that the Constitution provided the sole mode for
transfer
of jurisdiction, and that if this mode is not pursued no
transfer
of jurisdiction can take place.
41
42
State cession.--However, in Fort
Leavenworth R.R. v. Lowe, 114
U.S.
525 (1885), the United States Supreme Court sustained the
validity
of an act of Kansas ceding to the United States legislative
jurisdiction
over the Fort Leavenworth military reservation, but
reserving
to itself the right to serve criminal and civil process in
the
reservation and the right to tax railroad, bridge, and other
corporations,
and their franchises and property on the reservation.
In the
course of its opinion sustaining the cession of legislative
jurisdiction
, the Supreme Court said (p. 540):
We are here net with the objection that
the Legislature of a
State has no power to cede away her
jurisdiction and legislative
power over any portion of her territory,
except as such cession
follows under the Constitution from her
consent to a purchase by
the United States for some one of the
purposes mentioned. If
this were so, it would not aid the
railroad company; the
jurisdiction of the State would then
remain as it previously
existed.
But aside from this consideration, it is undoubtedly
true that the State, whether represented
by her Legislature, or
through a convention specially called for
that purpose, is
incompetent to cede her political
jurisdiction and legislative
authority over any part of her territory
to a foreign country,
without the concurrence of the general
government. The
jurisdiction of the United States extends
over all the territory
within the States, and therefore, their
authority must be
obtained, as well as that of the State
within which the
territory is situated, before any cession
of sovereignty or
political jurisdiction can be made to a
foreign country. * * *
In their relation to the general
government, the States of the
Union stand in a very different position
from that which they
hold to foreign governments. Though the jurisdiction and
authority of the general government are
essentially different
form those of the State, they are not
those of a different
country; and the two, the State
43
and general government, may deal with
each other in any way they
may deem best to carry out the purposes
of the Constitution. It
is for the protection and interests of the
States, their people
and property, as well as for the
protection and interests of the
people generally of the United States,
that forts, arsenals, and
other buildings for public uses are
constructed within the
States.
As instrumentalities for the execution of the powers of
the general government, they are, as
already said, exempt from
such control of the States as would
defeat or impair their use
for those purposes; and if, to their more
effective use, a
cession of legislative authority and
political jurisdiction by
the State would be desirable, we do not
perceive any objection
to its grant by the Legislature of the
State. Such cession is
really as much for the benefit of the
State as it is for the
benefit of the United States.
Had the
doctrine thus announced in Fort Leavenworth R.R. v. Lowe,
supra,
been known at the time of the Constitutional Convention, it is
not
improbable that article I, section 8, clause 17, at least insofar
as it
applies to areas other than the seat of government, would not
have
been adopted. Cession as a method for
transfer of jurisdiction
by a
State to the United States is now well established, and quite
possibly
has been the method of transfer in the majority of instances
in
which the Federal
Federal reservation.--In Fort Leavenworth
R.R. v. Lowe, supra,
the
Supreme Court approved second method not specified in the
Constitution
of securing legislative jurisdiction in
44
the United
States. Although the matter was not in
issue in the case,
the
Supreme Court said (p. 526):
The land constituting the Reservation was
part of the territory
acquired in 1803 by cession from France,
and until the formation
of the State of Kansas, and her admission
into the Union, the
United States possessed the rights of a
proprietor, and had
political dominion and sovereignty over
it. For many years
before that admission it had been
reserved from sale by the
proper authorities of the United States
for military purposes,
and occupied by them as a military post.
The jurisdiction of the
United States over it during this time
was necessarily
paramount. But in 1861 Kansas was admitted into the Union upon
an equal footing with the original
States, that is, with the
same rights of political dominion and
sovereignty, subject like
them only to the Constitution of the
United States. Congress
might undoubtedly, upon such admission,
have stipulated for
retention of the political authority,
dominion and legislative
power of the United States over the
Reservation, so long as it
should be used for military purposes by
the government; that is,
it could have excepted the place from the
jurisdiction of
Kansas, as one needed for the uses of the
general government.
But from some cause, inadvertence
perhaps, or over-confidence
that a recession of such jurisdiction
could be had whenever
desired, no such stipulation or exception
was made. * * *
[Emphasis added.]
Almost
the same language was used by the Supreme Court of Kansas in
Clay v.
State, 4 Kan. 49 (1866), and another suggestion of judicial
recognition
of this doctrine is to be found in an earlier case in the
Supreme
Court of the United States, Langford v. Monteith, 102 U.S.
145
(1880), in which it was held that when an act of congress
admitting
a State into the Union provides, in accordance with a
treaty,
that the lands of
45
an
Indian tribe shall not be a part of such State or Territory, the
new
State government has no jurisdiction over them. The enabling
acts
governing the admission of several of the States provided that
exclusive
jurisdiction over certain areas was to be reserved to the
United
States. In view of these development,
an earlier opinion of
the
United States Attorney General indicating that a State
legislature,
as distinguished from a State constitutional convention,
had to
give the consent to transfer jurisdiction specified in the
Federal
Constitution (12 Ops. A.G. (1868)), would seem inapplicable
to a
Federal reservation of jurisdiction.
Since Congress has the power to create
States out of territories
and to
prescribe the boundaries of the new States, the retention of
exclusive
legislative jurisdiction over a federally owned area
within
the State is admitted into the Union would not appear to pose
any
serious constitutional difficulties.
No federal legislative jurisdiction
without consent, cession, or
reservation.--It
scarcely needs to be said that unless there has been
a
transfer of jurisdiction (1) pursuant to clause 17 by a Federal
acquisition
of land with State consent, or (2) by cession from the
State
to the Federal Government, or unless the Federal Government has
reserved
jurisdiction upon the admission of the State, the Federal
Government
possesses no legislative jurisdiction over any area within
a
State, such jurisdiction being for exercise entirely by the State,
subject
to non-interference by the State with Federal functions, and
subject
to the free exercise by the Federal Government of rights
46
with
respect to the use, protection, and disposition of its property.
NECESSITY OF STATE ASSENT TO TRANSFER OF
JURISDICTION TO FEDERAL
GOVERNMENT:
Constitutional consent.--The Federal Government cannot,
by
unilateral action on its part, acquire legislative jurisdiction
over
any area within the exterior boundaries of a State. Article I,
section
8, clause 17, of the Constitution, provides that legislative
jurisdiction
may be transferred pursuant to its terms only with the
consent
of the legislature of the State in which is located the area
subject
to the jurisdictional transfer. As was
indicated in chapter
II, the
consent requirement of article I, section 8, clause 17, was
47
intended
by the framers of the Constitution to preserve the States'
jurisdictional
integrity against Federal encroachment.
State cession or Federal
reservation.--The transfer of
legislative
jurisdiction pursuant to either of the two means not
spelled
out in the Constitution likewise requires the assent of the
State
in which is located the area subject to the jurisdictional
transfer. Where legislative jurisdiction is
transferred pursuant to
a State
cession statute, the State has quite clearly assented to the
transfer
of legislative jurisdiction to the Federal Government, since
the enactment
of a State cession statute is a voluntary act on the
part of
the legislature of the State.
The second method not spelled out in the
Constitution of vesting
legislative
jurisdiction in the Federal Government, namely, the
reservation
of legislative jurisdiction by the Federal Government at
the
time statehood is granted to a Territory, does not involve a
transfer
of legislative jurisdiction to the Federal Government by a
State,
since the latter never had jurisdiction over the area with
respect
to which legislative jurisdiction is reserved.
While, under
the
second method of vesting legislative jurisdiction in the Federal
Government,
the latter may reserved such jurisdiction without
inquiring
as to the wishes or desires of the people of the Territory
to
which statehood has been granted, nevertheless, the people of the
Territory
involved have approved, in at least a technical sense, such
reservation. Thus, the reservation of legislative
jurisdiction
constitutes,
in the normal case, one of the terms and conditions for
granting
statehood, and only if all of the terms and conditions are
approved
by a majority of the Territorial legislature, is statehood
granted.
48
NECESSITY OF FEDERAL ASSENT: Express
consent required by R. S.
355.--Acquiescence,
or acceptance, by the Federal Government, as well
as by
the State, is essential to the transfer of legislative
jurisdiction
to the Federal Government. When
legislative
jurisdiction
is reserved by the Federal Government at the time
statehood
is granted to a Territory, it is, of course, obvious that
the
possession of legislative jurisdiction meets with the approval of
the
Federal Government. When legislative
jurisdiction is to be
transferred
by a State to the Federal Government either pursuant to
article
I, section 8, clause 17, of the Constitution, or by means of
a State
cession statute, the necessity of Federal assent to such
transfer
of legislative jurisdiction has been firmly established by
the
enactment of the February 1, 1940, amendment to R.S. 355. While
this
amendment in terms specifies requirement for formal Federal
acceptance
prior to the transfer of exclusive or partial legislative
jurisdiction,
it also applies to the transfer of concurrent
jurisdiction. The United States Supreme Court, in Adams v.
United
States,
319 U.S. 312 (1943), in the cause of its opinion said (pp.
314-315):
Both the Judge Advocate General of the
Army and the Solicitor
of the Department of Agriculture have
con-
49
strued the 1940 Act as requiring that
notice of acceptance be
filed if the government is to obtain
concurrent jurisdiction.
The Department of Justice has abandoned
the view of
jurisdiction which prompted the
institution of this
proceeding, and now advises us of its
view that concurrent
jurisdiction can be acquired only by the
formal acceptance
prescribed in the Act. These agencies cooperated in
developing the Act, and their views are
entitled to great
weight in its interpretation. * * * Besides, we can think of
no other rational meaning for the phrase
"jurisdiction,
exclusive or partial" than that
which the administrative
construction gives it.
Since the government had not accepted
jurisdiction in the
manner required by the Act, the federal
court had no
jurisdiction of this proceeding. In this view it is
immaterial that Louisiana statutes
authorized the government
to take jurisdiction, since at the
critical time the
jurisdiction had not been taken.
Former presumption of Federal
acquiescence in absence of
dissent.--Even
before the enactment of the 1940 amendment to R.S.
355, it
was clear that a State could not transfer, either pursuant to
article
I, section 8, clause 17, of the Constitution, or by means of
a
cession statute, legislative jurisdiction to the Federal Government
without
the latter's consent. Prior to the 1940
amendment to R.S.
355,
however, it was not essential that the consent of the Federal
Government
be expressed formally or in accordance with any prescribed
procedure. Instead, it was presumed that the Federal
Government
accepted
the benefits of a State enactment providing for the transfer
of
legislative jurisdiction. As discussed more fully below, this
presumption
of acceptance was to the effect that once a State
50
legislatively
indicated a willingness to transfer exclusive
jurisdiction
such jurisdiction passed automatically to the Federal
Government
without any action having to be taken by the United
States. However, the presumption would not operate
where Federal
action
was taken demonstrating dissent from the acceptance of
proffered
jurisdiction.
Presumption in transfers by cession.--In
Port Leavenworth R.R.
v.
Lowe, supra, in which a transfer of legislative jurisdiction by
means
of a State cession statute was approved for the first time, the
court
said (p. 528) that although the Federal Government had not in
that
case requested a cession of jurisdiction, nevertheless, "as it
conferred
a benefit, the acceptance of the act is to be presumed in
the
absence of any dissent on their part."
See also United States v.
Johnston,
58 F.Supp. 208 aff'd., 146 F.2d 268 (C.A. 9, 1944), cert.
den.,
324 U.S. 876; 38 Ops. A. G. 341 (1935). A similar view has been
expressed
by a number of courts to transfers of jurisdiction by
cession. In some instances, however, the courts have indicated
the
existence
of affirmative grounds supporting Federal acceptance of
such
transfers. In Yellowstone Park Transp.
Co. v. Gallatin County,
31 F.
2d 644 (C.A. 9, 1929), cert. den., 280 U.S. 555, it was stated
that
acceptance by the United
51
States
of a cession of jurisdiction by a State over a national park
area
within the State may be implied from acts of Congress providing
for
exclusive jurisdiction in national parks.
See also Columbia
River
Packers' Ass'n v. United States, 29 F. 2d 91 (C.A. 9, 1928);
United
States v. Unzeuta, 281 U.S. 138 (1930).
Presumption in transfers by constitution
consent.--Until recent
years,
it was not clear but that the consent granted by a State
pursuant
to article I, section 8, clause 17, of the Constitution,
would
under all circumstances serve to transfer legislative
jurisdiction
to the Federal Government where the latter had
"purchased"
the area and was using it for one of the purposes
enumerated
in clause 17. In United States v.
Cornell, 25 Fed. Cas.
646,
No. 14,867 (C.C.D.R.I., 1819), Justice Story expressed the view
that
clause 17. In the course of his opinion
in that case, Justice
Story
said (p. 648):
The constitution of the United States
declares that congress
shall have power to exercise "exclusive legislation" in all
"cases whatsoever" over all
places purchased by the consent of
the legislature of the state in which the
same shall be, for the
erection of forts, magazines, arsenals,
dockyards and other
needful buildings. When therefore a purchase of land for any of
these purposes is made by the national
government, and the state
legislature has given its consent to the
purchase, the land so
purchased by the very terms of the
constitution ipso facto falls
within the exclusive legislation of
congress, and the state
jurisdiction is completely ousted. * * *
[Italics added.]
As late
as 1930, it was stated in Surplus Trading Co. v. Cook, 281
U.S.
647, that (p. 652):
52
It long been settled that where lands for
such a purpose [one of
those mentioned i clause 17] are
purchased by the United States
with the consent of the state legislature
the jurisdiction
theretofore residing in the State passes,
in virtue of the
constitutional provision, to the United
States, thereby making
the jurisdiction of the latter the sole
jurisdiction. [Italics
added.]
The
italicize portions of the quoted excepts suggest that article I,
section
8, clause 17, of the Constitution, may be self-executing
where
the conditions specified in that clause for the transfer of
jurisdiction
have been satisfied.
In Mason Co. v. Tax Comm'n, 302 U.S. 186
(1937), however, the
Supreme
Court clearly extended the acceptance doctrine, first applied
to
transfers of legislative jurisdiction by State cession statutes in
Fort
Leavenworth R.R. v. Lowe, supra, to transfers pursuant to
article
I, section 8, clause 17, of the Constitution. The court said
(p.
207):
Even if it were assumed that the state
statute should be
construed to apply to the federal
acquisitions here involved, we
should still be met by the contention of
the Government that it
was not compelled to accept, and has not
accepted, a transfer of
exclusive jurisdiction. As such a transfer rests upon a grant
by the State, through consent or cession,
it follows, in
accordance with familiar principles
applicable to grants, that
the grant may be accepted or declined.
Acceptance may be
presumed in the absence of evidence of a
contrary intent, but we
know of no constitutional principle which
com-
53
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54
THIS PAGE IS MISSING
55
indicated
that transfers of legislative jurisdiction between the
Federal
Government and a State are matters of arrangement between the
two governments. Although in that case the United States
Supreme
Court
did not consider the question of whether State consent is
essential
to a State cession of legislative jurisdiction would, if
applied
to Federal retrocession to the State, lead to the conclusion
that
the latter's consent is essential in order for the retrocession
to be
effective. The presumption of consent,
suggested in the Fort
Leavenworth
case, would likewise appear to apply to a State to which
the
Federal Government has retroceded jurisdiction.
While the reasoning of the Fort
leavenworth decision casts
substantial
doubt on the soundness of the view expressed in Renner v.
Bennett,
supra, it should be noted that the Oklahoma Supreme Court,
in two
cases, adopted the conclusions reached by the Ohio Supreme
Court. In the later of the two Oklahoma cases,
McDonnell & Murphy v.
Lunday,
191 Okla. 611, 132 P. 2d 322 (1942), the court, in its
syllabus
to its opinion, stated that consent of the State is not
essential
to a retrocession of legislative jurisdiction by the
Federal
Government. The matter was not
discussed in the opinion,
however,
and the similarity in the wording of the court's syllabus
with
that of the syllabus to the Ohio court's opinion suggests that
the Oklahoma
court merely accepted the Ohio court's conclusion
without
any extended consideration of the matter.
In the earlier of
the two
cases, which were decided in the same year, the Oklahoma
Supreme
Court also stated that the effectiveness of Federal
retrocession
of legislative jurisdiction was not dependent upon the
acceptance
of the State. In that case, Ottinger
Bros. v. Clark, 191
Okla.
488, 131 P.2d 94 (1942), the court said (p. 96 of 131 P.2d):
If an acceptance was necessary, then it
would have been equally
necessary that the Congress of the United
States accept the act
of the legislature of 1913 ceding
Jurisdic-
56
tion to the United States. That was never done. But as shown
in Fort Leavenworth R. Co. v. Lowe,
supra, and St. Louis-San
Francisco R. Company v. Saterfield,
supra, said act was
effective without any acceptance by
Congress. The Act of
Congress of 1936, supra, Therefore became
effective immediately
after its final passage.
The
Oklahoma court's reliance on the Fort Leavenworth decision
suggests
that its statement that acceptance by the State is not
necessary
means that there need not be any express acceptance. As
was
indicated above, the United States Supreme Court in Fort
Leavenworth
R. R. v. Lowe, supra, stated that there was a presumption
of
acceptance; it clearly indicated, however, that while it might not
be
necessary to have an express acceptance, nevertheless, the Federal
Government
could reject a State's offer of legislative jurisdiction.
While the decision of the Ohio court in
Renner v. Bennett,
supra,
provides some authority for the proposition that a Federal
retrocession
of legislative jurisdiction is effective irrespective of
the
State's wishes in the matter, the later decision of the United
States
Supreme Court in Fort Leavenworth R. R. v. Lowe, supra,
appears
to support the contrary conclusion; for if, as the United
States
Supreme Court there indicated, transfers of legislative
jurisdiction
other than under clause 17 are matters of arrangement
between
the Federal Government and a State, and if the former may
reject
a State's offer of legislative jurisdiction, the same
reasoning
would support the conclusion that a State might likewise
reject
the Federal Government's offer of a retrocession of
legislative
jurisdiction. The Oklahoma Supreme
Court's decisions do
not,
for the reasons indicated above, appear to be reliable authority
for a
contrary conclusion. The reasoning in
the Fort Leavenworth R.
R. case
further suggests, however, that in the absence of a rejection
the
State's acceptance of the retrocession would be presumed.
Exception.--A possible exception to the
rule that a State
57
may
reject a retrocession of legislative jurisdiction may consist of
cases
in which, as is indicated below, changed circumstances no
longer
permit the Federal Government to exercise legislative
jurisdiction,
as for example, where the Federal Government has
disposed
of the property.
DEVELOPMENT OF RESERVATIONS IN CONSENT
AND SESSION STATUTES:
Former
Federal requirement (R.S. 355) for exclusive jurisdiction.--
Under
the act of September 11, 1841 (and subsequently under section
355 of the
Revised Statutes of the United States, prior to its
amendment
by the act of February 1, 1940), the expenditure of public
money
for the erection of public buildings on any site or land
purchased
y the United States was prohibited until the State had
consented
to the acquisition by the United States of the site upon
which
the structure was to be erected. An
unqualified State consent,
it has
been seen, transfers exclusive legislative jurisdiction to the
United
States. But State statutes often
contained conditions or
reservations
which resulted in a qualified consent inconsistent with
the
former requirements of R. S. 355. In
construing State statutes
during
the 1841-1940 period, the Attorneys General of the United
States
was essential in order to meet the requirements of R. S. 355.
Attorneys
General expressed differing views, however, as to what
constitutes
such a consent.
In at least two opinions, the Attorney
General held that State
consent
given subject to the condition that the State retain
concurrent
jurisdiction with the United States granted
58
the
requisite consent of the State to a proposed purchase. Also, the
Attorney
General in other opinions held that, if an act of a State
legislature
amounted to a "consent," then any attempted exceptions,
reservations
or qualifications in the act were void, since, consent
being
given by the legislature, the Constitution vested exclusive
jurisdiction
over the place, beyond the reach of both Congress and
the
State legislature.
The view was also expressed, on the other
hand, that State
statutes
granting the "right of exclusive legislation and concurrent
jurisdiction"
failed to transfer the requisite jurisdiction.
And
statutes
consenting to the purchase of land by the United States
which
provided that the State should retain concurrent jurisdiction
for he
trial and punishment of offenses against the laws of the State
did not
satisfy the requirements of section 355 of the Revised
Statutes. States statutes consenting to the purchase
of lands with
reservation
of (1) the right to administer criminal laws on lands
acquired
by the United States for Federal building sites, (2) the
right
to punish offenses against State laws committed on sites for
United
States buildings or (3) civil and criminal jurisdiction over
persons
in territory ceded to the United States for Federal buildings
were
found not compatible with the requirements of R. S. 355.
In addition, the Attorney General
expressed the view that a
State
statute ceding jurisdiction to the United States was
insufficient
to meet the requirements of R. S. 355 because express
reservations
therein imposing State taxation, labor, safety and
59
health
laws are inconsistent with exclusive jurisdiction; and
statutes
expressing qualified consent to acquisitions of land by the
United
States, it was held by the Attorney General, did not meet the
requirements
of R.S. 355.
Therefore, it may well be said that,
until the 1940 amendment to
R. S.
355 was enacted, it was the view of Attorneys General of the
United
States that cessions by a State had to be free from conditions
or
reservations inconsistent with Federal exercise of exclusive
legislative
jurisdiction.
This view is compatible with an opinion
of the Attorney General
of
Illinois, who ruled that under section 355 of the Revised Statutes
a State
in ceding land to the United States with a transfer of
exclusive
jurisdiction may only reserve the right to serve criminal
and
fugitives from justice who have committed crimes and fled to such
ceded
territory to the same extent as might be done if the criminal
or
fugitive had fled to another part of the State.
Earlier theory that no reservations by
State possible.--It was
at one
time thought that article I, section 8, clause 17, did not
permit
the reservation by a State of any jurisdiction over an area
falling
within the purview of that clause except the right to serve
criminal
and civil process. This, as was
indicated in Chapter II, in
1819,
Justice Story, in United States v. Cornell, supra, expressed
doubts
as to "whether congress are by the terms of the constitution,
at
liberty to purchase lands for forts, dockyards, &c., with the
consent
of a state legislature, where such consent is so qualified
that it
will not justify the 'exclusive jurisdiction,' of congress
there,"
In support of Justice Story's view, it
may be noted that clause
17 does
not, by its terms, suggest he possibility of concurrent
60
or
partial jurisdiction. Moreover, the
considerations cited by
Madison
and others in support of clause 17 suggest that the framers
of the
Constitution sought to provide a method of enabling the
Federal
Government to obtain complete and sole
jurisdiction over
certain
areas within the States. Whatever the
merits of Justice
Story's
suggestion may be, however, it is clear that his views do not
represent
the law today.
State authority to make reservations in
cession statutes
recognized.--The
principle that Federal legislative jurisdiction over
an area
within a State might be concurrent or partial, as well as
exclusive,
was not judicially established until 1885, and it was
approved
by the Supreme Court in a case involving the acquisition of
a
degree of legislative jurisdiction less than exclusive pursuant to
a State
cession statute instead of under article I, section 8, clause
17, of
the Constitution. In that year, the
Supreme Court, in Fort
Leavenworth
R.R. v. Lowe, 114 U.S. 525, said (p. 539):
As
already stated, the land constituting the Fort Leavenworth
military Reservation was not purchased,
but was owned by the
United States by cession from France many
years before Kansas
became a State; and whatever political
sovereignty and dominion
the United States had over the place
comes from the cession of
the State since her admission into the
Union. It not being a
case where exclusive legislative
authority is vested by the
Constitution of the United States, that cession
could be
accompanied with such conditions as the
State might see fit to
annex not inconsistent with the free and
effective use of the
fort as a military post..
In the Fort Leavenworth R.R. case the
State of Kansas had
reserved
the right not only to serve criminal and civil process
61
but
also the right to tax railroad, bridge, and other corporations,
and
their franchises and property in the military reservation. As a
result
of this reservation, the Federal Government was granted only
partial
legislative jurisdiction, and such limited legislative
jurisdiction,
provided for by a State cession statute, was held to be
valid. This view has prevailed since 1885, but not
until 1937 did
the
Supreme Court adopt a similar view as to transfers of legislative
jurisdiction
pursuant to article I, section 8, clause 17, of the
Constitution.
In a case decided after the Fort
Leavenworth R. R. case, Crook,
Horner
& Co. v. Old Point Comfort Hotel Co., 54 Fed. 604
(C.C.E.D.Va.,
1893), the court implied the same doubts that had been
expressed
in the Cornell case concerning the inability of the Federal
Government
to acquire through a State consent statute less than
exclusive
jurisdiction provided for in clause 17.
Again, the same
view
appears to have been expressed by the Supreme Court in United
States
v. Unzenta, 281 U.S. 138 (1930), in which it was said (p.
142):
When the United States acquires title to
lands, which are
purchased by the consent of the
legislature of the State within
which they are situated "for the
erection of forts, magazines,
arsenals, dockyards and other needful
buildings," (Const. Art.
I, sec. 8) the Federal jurisdiction is
exclusive of all State
authority. With reference to land otherwise acquired, this
Court said in Ft. Leavenworth Railroad
Company v. Lowe, 114 U.S.
525, 539, 541, that a different rule
applies, that is, that the
land and the buildings erected thereon
for the uses of the
national government will be free from any
such interference and
jurisdiction of the State as would impair
their effective use
for the purposes for which the prop-
62
perty was acquired. When, in such cases, a State cedes
jurisdiction to the United States, the
State may impose
conditions which are not inconsistent
with the carrying out of
the purpose of the acquisition. * * *
A
distinction was thus drawn, insofar as the reservation by the State
of
legislative jurisdiction is concerned, between transfers of
legislative
jurisdiction pursuant to article I, section 8, clause 17,
of the
Constitution, and transfers pursuant to a State cession
statute.
State authority to make reservations in
consent statutes
recognized.--In
1937 the Supreme Court for the first time sanctioned
a
reservation of jurisdiction by a State in granting consent pursuant
to
article I, section 8, clause 17, of the Constitution, although an
examination
of the State consent statutes set forth in appendix B of
part I
of this report discloses that such reservations had not, as a
matter
of practice, been uncommon prior to that date.
In 1937, the
Supreme
Court, in James v. Drave Contracting Co., 302 U.S. 134
(1937),
sustained the validity of a reservation by the State of West
Virginia,
in a consent statue, of the right to levy a gross sales tax
with
respect to work done in a federally owned area to which the
consent
statute was applicable. In sustaining the reservation of
jurisdiction
in a State consent statute, the Supreme Court said (pp.
147-149):
It is not questioned that the State may
refuse its consent and
retain
jurisdiction consistent with the governmental purposes for
which the
property was acquired.
63
The right of eminent domain inheres in
the Federal Government by
virtue of its sovereignty and thus it
may, regardless of the
wishes either of the owners or of the
States, acquire the lands
which it needs within their borders. Kohl v. United States, 91
U.S. 367, 371, 372. In that event, as in cases of acquisition
by purchase without consent of the State,
jurisdiction is
dependent upon cession by the State,
jurisdiction is dependent
upon cession by the State and the State
may qualify its cession
by reservations not inconsistent with the
governmental uses. *
* * The result to the Federal Government
is the same whether
consent is refused and cession is
qualified by a reservation of
concurrent jurisdiction, or consent to
the acquisition is
granted with a like qualification. As the Solicitor General has
pointed out, a transfer of legislative
jurisdiction carries with
it not only benefits but obligations, and
it may be highly
desirable, in the interest both of the
national government and
of the State, that the latter should not
be entirely ousted of
its jurisdiction. The possible importance of reserving to the
State jurisdiction for local purposes
which involve no
interference with the performance of
governmental functions is
becoming more and more clear as the
activities of the Government
expand and large areas within the States
are acquired. There
appears to be no reason why the United
States should be
compelled to accept exclusive
jurisdiction or the State be
compelled to grant it in giving its
consent to purchases.
Normally, where governmental consent is
essential, the consent
may be granted upon terms appropriate to
the subject and
transgressing no constitutional
limitation.
* *
* * *
Clause 17 contains no express stipulation
that the consent of
the State must be without reservations.
We think that such a
stipulation should not be implied. We are unable to reconcile
such an implication with the
64
freedom of the State and its admitted
authority to refuse or
qualify cessions of jurisdiction when
purchases have been made
without consent or property has been
acquired by condemnation.
In the present case the reservation by
West Virginia of
concurrent jurisdiction did not operate
to deprive the United
States of the enjoyment of the property
for the purposes for
which it was acquired, and we are of the
opinion that the
reservation was applicable and effective.
Retention by Federal Government of less
than exclusive
jurisdiction
on admission of State.--The courts have not had occasion
to rule
on the question of whether the Federal Government, at the
time
statehood is granted to a Territory, may retain partial or
concurrent
jurisdiction, instead of exclusive jurisdiction, over an
area
within the exterior boundaries of the new State. There appears
to be
no reason, however, why a degree of legislative jurisdiction
less
than exclusive in Fort Leavenworth R. R. v. Lowe, supra, and
James
v. Drawo Contracting Co., supra, the Supreme Court would
conclude
that partial or concurrent legislative jurisdiction may not
be
retained.
Non-interference with Federal use now
sole limitation on
reservations
by State.--At this time the quantum of jurisdiction
which
may be reserved in a State cession or consent statute is almost
completely
within the discretion of the State, subject always, of
course,
to Federal acceptance of the quantum tendered by the State,
and subject
also to non-impingement of the reservation upon any power
or
authority vested in the Federal Government by various provisions
of the
Constitution. In Fort Leavenworth R. R.
v. Lowe, supra, the
Supreme
Court indicated (p. 539) that a cession might be accompanied
with
such conditions as the State might see fit to annex "not
inconsistent
with the free and effective use of the
65
fort as
a military post." In Arlington
Hotel Company v. Fant, 278
U.S.
439 (1929), the Supreme Court likewise indicated (p. 451) that
the
State had complete discretion in determining what conditions, if
any,
should be attached to a cession of legislative jurisdiction,
provided
that it "saved enough jurisdiction for the United States to
enable
it to carry out the purpose of the acquisition of
Jurisdiction." In United States v. Unzeuta, 281 U.S. 138
(1930). the
Supreme
Court stated (p. 142) that in the cession statute the State
"may
impose conditions which are not inconsistent with the carrying
out of
the purpose of the acquisition."
While, it will be noted,
these
limitations on State reservations of jurisdiction over Federal
property
all related to reservations in cession statutes, no basis
for the
application of a different rule to reservations in a consent
statute
would seem to exist under the decision in James v. Dravo
Contracting
Co., supra. And it should be further noted that the
Supreme
Court in the Drave case implied a similar limitation as to
the discretion
of a State in withholding jurisdiction under a consent
statute
by stating (p. 149) that the reservation involved in that
case
"did not operate to deprive the United States of the enjoyment
of the
property for the purposes for which it was acquired."
Specific reservations approved.--While
the general limitation of
non-interference
with Federal use has been stated to apply to the
exercise
by a State of its right to reserve a quantum of jurisdiction
in its
cession or consent statute, apparently in no case to date has
a court
had occasion to invalidate a reservation by a State as
violative
of that general limitation. State
jurisdictional
reservations
which have been sustained by the
66
courts
include the reservation of the right to tax privately owned
railroad
property in a military reservation (Fort leavenworth R.R.
v.Lowe,
supra; United States v. Unzeuta, supra); to levy a gross
sales
tax with respect to work done in an area of legislative
jurisdiction
(James v. Dravo Contracting Co., supra; to tax the sale
of
liquor in a national park subject to legislative jurisdiction
(Collins
v. Yosemite Park, 304 U.S. 518 (1938)); to permit residents
to
exercise the right of suffrage (Arapojolu v. McMenamin, 113
Cal.App.2d
824, 249 P.2d 318 (1952)); and to have criminal
jurisdiction
as to any malicious, etc., injury to the buildings of
the
Government within the area over which jurisdiction had been ceded
to the
United States (United States v. Andem, 158 Fed. 996 (D.N.J.,
1908)0. And, of course, there are numerous areas,
used by the
Federal
Government for nearly all of its many purposes, as to which
the
several States retain all legislative jurisdiction, solely or
concurrently
with the United States, or as to which they have
reserved
a variety of rights while granting legislative jurisdiction
as to
other matters to the Federal Government, and as to which no
question
concerning the State-retained jurisdiction has been raised.
LIMITATIONS ON AREAS OVER WHICH JURISDICTION MAY BE ACQUIRED BY
CONSENT
OF STATE UNDER CLAUSE 17: In
general.--Article I, section 8,
clause
17, of the Constitution, provides that the Congress shall have
the
power to exercise exclusive legislation over "Places" which have
been
"purchased" by the Federal Government, with the consent of the
legislature
of the State, "for the Erection of Forts, Magazines,
Arsenals,
dock-Yards, and other needful Buildings."
The quoted words
serve
to limit the scope of clause 17 (but do not apply, since the
decision
in the Fort Leavenworth R.R. case, supra, to transfers of
jurisdiction
by other means). They exclude from its
purview places
which
were not "purchased" by the
67
Federal
Government, and, if the rule of ejusdem generis applied,
places
which, though purchased by the Federal Government, are for use
for
purposes not enumerated in the clause.
Area required to be "purchased"
by Federal Government.--The
"purchase"
requirement contained in clause 17 serves to exclude from
its
operation places which had been part of the public domain and
have
been reserved from sale. See Fort
Leavenworth R.R. v. Lowe,
supra;
United States v. Unzeuta, supra; Six Cos., Inc. v. De Vinney,
2 F.Supp.
693 (D.Nev., 1933); Lt. Louis-San Francisco Ry. v.
Satterfield,
27 F.2d 586 (C.A. 8, 1928). It likewise
serves to
exclude
places which have been rented to the United States
Government. Unites States v. Tierney, 28 Fed.Cas. 159,
No. 16,517
(C.C.S.D.Ohio,
1864); Mayor and City Council of Baltimore v.
Linthicum,
170 Md. 245, 183 Atl. 531 (1936); People v. Bondman, 161
Misc.
Rep. 145, 291 N.Y.S. 213 (1936).
Acquisition by the United
States
of less than the fee is insufficient for the acquisition of
exclusive
jurisdiction under clause 17. Ex Parte
Hebard, 11
68
Fed.
Cas. 1010, No. 6312 (C.C.D.Kan., 1877); United States v.
Schwalby,
8 Tex.Civ.App. 679, 29 S.W. 90 (1894), writ of error
refused,
87 Tex. 604, 30 S.W. 435, rev'd. on other grounds, 162 U.S.
255. And Federal purchase of property at a tax
sale has been held
not to
transfer jurisdiction. United States v.
Penn, 48 Fed. 669
(C.C.E.D.Va.,
1880).
The term "purchased" does,
however, include acquisitions by
means
of condemnation proceedings,as will as acquisitions pursuant to
negotiated
agreements. See James v. Dravo
Contracting Co., supra;
Mason
Co. v. Tax Com'n, supra; Holt v. United States, 218 U.S. 245
(1910);
Chaney v. Chaney, 53 N.M. 66, 201 P.2d 782 (1949); Arledge v.
Mabry,
52 N.M. 303, 197 P.2d 884 (1948); People v. Collins, 105 Cal.
504, 39
Pac. 16, 17 (1895). The term also
includes cessions of title
by a
State to the Federal Government. United States v. Tucker, 122
Fed.
518 (W.D.Ky., 1903). A conveyance of
land to the United States
for a
consideration of $1 has likewise been regarded as a purchase
within
the meaning of clause 17. 39 Ops. A.G.
99 (1937).
Acquisition
of property by a corporation created by a special act of
Congress
as an instrumentality of the United States for the purpose
of
operating a soldiers' home constitutes a purchase by the Federal
Government
for purposes of clause 17. Sinks v.
Reese, supra; People
v.
Mouse, 203 Cal. 782, 265 Pac. 944, app. dism., sub nom. California
v.
Mouse, 278 U.S. 662, cert. den., 278 U.S. 614 (1928); State v.
Intoxicating
Liquors, 78 Me. 401, 6 Atl. 4 (1886); State ex rel.
69
Lyle v.
Willett, 117 Tenn. 334, 97 S.W. 299 (1906); Foley v. Shriver,
81 Va.
568 (1886). However, it has been held
that a purchase by such
a
corporation does not constitute a purchase by the Federal
Government. In re O'Connor, 37 Wis. 379, 19 Am. Rep. 765
(1875); In
re
Kelly, 71 Fed. 545 (C.C.E.D. Wis., 1895); Brooks Hardware Co. v.
Greer,
111 Me. 78, 87 Atl. 889 (1911), (question was left open); see
also
Tagge v. Gulzow, 132 Neb. 276, 271 N.W. 803 (1937). Since
acquisitions
by condemnation are construed as purchases under article
I,
section 8, clause 17, of the Constitution, it seems that donations
would
also be interpreted as purchases. See
Pothier v. Rodman, 285
Fed.
632 (D.R.I., 1923), aff'd., 264 U.S. 399 (1924); question raised
but
decision based on other grounds in Mississippi River Fuel
Corporation
v. Fontenot, 234 F.2d 898 (C.A. 5, 1956), cert. den., 352
U.S.
916.
In State ex rel. Board of Commissioners
v. Bruce, 104 Mont. 500,
69 P.2d
97 (1937), the court considered the question when a purchase
is
completed. Originally, Montana had a
combined cession and consent
statute,reserving
to the State only the right to serve process.
Another
statute was enacted in 1934 consenting to the acquisition of
and
ceding jurisdiction over lands around Fort Peck Dam, but
reserving
to the State certain rights, including the right to tax
within
the territory. The Government, prior to
the passage of the
second
act, secured options to purchase land from individuals,
entered
into possession and made improvements under agreements with
the
owners. Contracts of sale and deeds
were not executed until
after
the passage of the second act. The
court held that by going
into
possession and making improvements the United States accepted
the
option and completed a binding obligation which was a "purchase"
under
the Constitution, and that the State had no right to tax within
the
ceded territory. The case came up again
on the same facts in
light
of several Supreme Court decisions. The
Supreme Court of
Montana
reached the same decision. State ex
rel. Board of
Commissioners
v. Bruce, 106 Mont. 322, 77 P.2d 403 (1938), aff'd.,
305
U.S. 577. But
70
in
Valley County v. Thomas, 109 Mont. 345, 97 P.2d 345 (1939), the
Montana
court came to a contrary conclusion, specifically overruling
the
Bruce cases.
Term "needful Buildings"
construed. The words "Forts,
Magazines,
Arsenals, dock-Yards, and other needful Buildings," as
they
appear in article I, section 8, clause 17, of the Constitution,
generally
have not been construed according to the rule of ejusdem
generis;
the words "other needful Buildings"have been construed as
including
structures not of a military character ad any buildings or
works
necessary for governmental; purposes.
28 Ops. A.G. 185 (1935).
Thus,
post offices, courthouses and customs houses all have been held
to
constitute "needful Buildings."
The term "needful Buildings" in
71
clause
17 has also been held to include national cemeteries,
penitentiaries,
steamship piers, waters adjoining Federal lands,
aeroplane
stations, Indian schools, canal locks and dams, National
Homes
for Disabled Volunteer Soldiers, res-
72
ervoirs
and aqueducts, and a relocation center.
In Nikis v.
Commonwealth,
144 Va. 618, 131 S.E. 236 (1926), it was held that the
abutment
and approaches connected with a bridge did not come within
the
term "buildings," but a cession statute additionally reciting
consent
rather than a simple consent statute was there involved.
The Attorney General has said (26 Ops.
A.G. 289 (1907), (p.
297)):
There can be no question and, so far as I
am aware, none has
been raised that the word
"buildings" in this passage [of the
Constitution] is used in a sense
sufficiently broad to include
public works of any kind * * *
The
most recent, and most comprehensive, definition of the term
"needful
Buildings," as it appears in clause 17, is to be found in
James
v. Dravo Contracting co., 302 U.S. 134, in which the court said
(pp. 142-143):
Are the locks and dams in the instant
case "needful buildings"
within the purview of Clause 17? The State contends that they
are not.
If the clause were construed according to the rule of
ejusdem generis, are those of the same
sort as forts, magazines,
arsenals and dockyards, that is,
structures for military
purposes. And it may be that the thought of such "strongholds"
was uppermost in the minds of the
framers. Eliot's Debates, Vol.
5, pp. 130, 440, 511; Cf. Story on the
Constitution,
73
Vol. 2 Sec. 1224. But such a narrow construction has been
found
not to be absolutely required and to be
unsupported by sound
reason in view of the nature and
functions of the national
government which the Constitution
established. * * * We construe
the phrase"other needful
buildings" as embracing whatever
structures are found to be necessary in
the performance of the
functions of the Federal Government.
In this decision,the Supreme court
expressed its sanction to the
conclusion
therefore generally reached by other authorities, that the
rule of
ejusdem generis had been renounced, and that acquisition by
the
United States for any purpose might be held to fall within the
Constitution,
where a structure is involved.
LIMITATIONS ON AREAS OVER WHICH
JURISDICTION MAY BE ACQUIRED BY
CESSION
OF STATE: Early view.--Until the Fort leavenworth R.R. case,
the
courts had made no distinction between consents and cessions, and
had
treated cessions as the "consent" referred to in the
Constitution. United States v. Davis, 25 Fed. Cas. 781,
No. 14,930
(C.C.D.Kan..,
74
1877). In the case of In re O'Connor, 37 Wis. 379,
19 Am. Rep. 765
(1875),
decided before Fort Leavenworth R.R. v. Lowe, supra, the
stated
(p. 387):
For it is not competent for the
legislature to abdicate its
jurisdiction over its territory, except
where the lands are
purchased by the United States, for the
specific purposes
contemplated by the constitution. When that is done, the state
may cede its jurisdiction over them to
the United States.
Present view.--After the Fort Leavenworth
R.R. case, it was held
that
either a purchase with the consent of the States or an express
cession
of jurisdiction could accomplish a transfer of legislative
jurisdiction. United States v. Tucker, 122 Fed. 518 (W.D.
Ky.,
1903);
Commonwealth v. King, 252 Ky. 699, 68 S.W.2d 45 (1934); State
ex rel.
Jones v. Mack, 23 Nev. 359, 47 Pac. 763 (1897); Curry v.
State,
111 Tex.Cr.App. 264, 12 S.W.2d (1928); 9 Ops.A.G. 263 (1858);
13
Ops.A.g. 411 (1871); 15 Ops.A.G. 480 (1887); cf. United States v.
Andem,
158 Fed. 996 (D.N.J., 1908).
By means of a cession of legislative
jurisdiction by a State, the
Federal
Government may acquire legislative jurisdiction not only over
areas
which fall within the purview of article I, section 8, clause
17, of
the Constitution, but also over areas not within the scope of
that
clause. While a State may cede to the
Federal Government
legislative
jurisdiction over a "place" which was "purchased" by the
Federal
Government for the "Erection of Forts, Magazines, Arsenals,
dock-Yards,
and other needful Buildings," it is not essential that an
area be
"purchased" by the Federal Government in order to be the
subject
of a State cession statute. Thus, the
transfer of
legislative
jurisdiction pursuant to a State cession statute has
75
been
sustained with respect to areas which were part of the public
domain
and which have been reserved from sale or other disposition.
Fort
Leavenworth R.R. v. Lowe, supra; Chicago, Rock Island & Pacific
Railway
v. McGlinn, 114 U.S. 542 (1885); Benson v. United States, 146
U.S.
325 (1892). It is not even essential
that the Federal
Government
own an area in order to exercise with respect to it
legislative
jurisdiction ceded by a State. Thus, a
privately owned
railroad
line running through a military reservation may be subject
to
federal legislative jurisdiction as the result of a cession. Fort
Leavenworth
R.R. v. Lowe, supra; Chicago, etc., Ry. v. McGlinn,
supra;
United States v. Unazeuta, supra.
Similarly, a privately
operated
hotel or bath house leased from the Federal Government and
licitation
a military reservation may, as a result of a State cession
statute,
be subject to Federal legislative jurisdiction. Arlington
Hotel
Company v. Fant, 278 U.S. 439 (1929);
Buckstaff Bath House Co.
v.
McKinley, 308 U.S. 358 (1939). Superior Bath House Co. v.
McCaroll,
312 U.S. 176 (1941). Legislative jurisdiction acquired
pursuant
to a State cession statute may extend to privately owned
land
within the confines of a national park.
Petersen v. United
States,
191 F.2d 154 (C.A. 9, 1951), cert. den., 342 U.S. 885. It
will
not so extend if the State's cession statute limits cession to
lands
owned by the Government. Op. A.G.,
Cal., No. NS3019 (Oct. 22,
1940). In United States v. Unzeuta, supra, the
extension of Federal
legislative
jurisdiction over a privately owned railroad right-of-way
located
within an area which was owned by the Federal Government and
subject
to the legislative jurisdiction of the Federal Government was
justified
as follows (pp. 143-145):
* * * There was no express exception of
jurisdiction over this
right of way, and it can not be said that
there
76
was any necessary implication creating such
an exception. The
proviso that the jurisdiction ceded
should continue no longer
than the United States shall own and
occupy the reservation had
reference to the future and cannot be
regarded as limiting the
cession of the entire reservation as it
was known and described.
As the right of way to be located with
the approval of the
Secretary of War ran across the
reservation, it would appear to
be impracticable for the State to attempt
to police it, and the
Federal jurisdiction may be considered to
be essential to the
appropriate enjoyment of the reservation
for the purpose to
which it was devoted.
* *
* * *
The mere fact that the portion of the reservation
in question is
actually used as a railroad right of way
is not controlling on
the question of jurisdiction. Rights of way for various
purposes,such as for railroads, ditches.
pipe lines, telegraph
and telephone lines across Federal
reservations, may be entirely
compatible with exclusive jurisdiction
ceded to the United
States. * * * While the grant of the
right of way to the
railroad company contemplated a permanent
use, this does not
alter the fact that the maintenance of
the jurisdiction of the
United States over the right of way, as
being within the
reservation, might be necessary in order
to secure the benefits
intended to be derived from the
reservation.
This excerpt from the court's opinion
appears to indicate that
the
proctocolitis of a given situation will be highly persuasive, if
not
conclusive, on the issue of whether Federal legislative
jurisdiction
may be exercised over privately owned areas used for
non-governmental
purposes.
Cessions of legislative jurisdiction are
free not only from the
requirements
of article I, section 8, clause 17, as to purchase--and,
with
it, ownership--but they are also free from the requirement that
the
property be used for one of the purposes enumerated in clause 17,
assuming
that however broad
77
those
purposes are under modern decisions the term "other needful
Buildings"
used therein may have some limitation.
In Collins v.
Yosemite
Park Co., 304 U.S. 518 (1938), in which the Supreme Court
sustained
the exercise of Federal legislative jurisdiction acquired
pursuant
to a State cession statute,it was said (pp. 529-530):
* * * There is no question about the
power of the United States
to exercise jurisdiction secured by
cession, thought this is not
provided for by Clause 17. And it has been held that such a
cession may be qualified. It has never been necessary,
heretofore, for this Court to determine
whether or not the
United States has the constitutional
right to exercise
jurisdiction over territory, within the
geographical limits of a
State, acquired for purposes other than
those specified in
Clause 17. It was raised but not decided in Arlington Hotel v.
Fant, 278 U.S. 439, 454. It was assumed without discussion in
Yellowstone Park Transportation Co. v.
Gallatin County, 31 F.2d
644. On account of the regulatory phases
of the Alcoholic
Beverage control Act of California, it is necessary to determine
that question here. The United States has large bodies of
public lands. These properties are used for forests,parks,
ranges,wild life sanctuaries, flood
control, and other purposes
which are not covered by Clause 17. In Silas Mason Co. v. Tax
commission of Washington, 302 U.S. 186,
we upheld in accordance
with the right of the United States to
acquire private property
for use in "the reclamation of arid
and semiarid lands" and to
hold its purchases subject to state
jurisdiction. In other
instances,it may be deemed important or
desirable by the
National Government and the State
Government in which the
particular property is located that
exclusive jurisdiction be
vested in the United States by cession or
consent. No ques-
78
tion is raised as to the authority to
acquire land or provide
for national parks. As the National Government may, "by
virtue
of its sovereignty" acquire lands
within the border of states by
eminent domain and without their consent,
the respective
sovereignties should be in a position to
abject their
jurisdiction. There is no constitutional objecting to such an
adjustment of right. * * *
This
quoted excerpt suggests that the Federal Government may exercise
legislative
jurisdiction, ceded to it by a State, over any area which
it
might own, acquire, or use for Federal purposes. In Bowen v.
Johnston,
306 U.S. 19 (1939), the Supreme Court again indicated that
it was
constitutionally permissible for the Federal Government to
exercise
over a national park area legislative jurisdiction which
might
be ceded to it by a State.
Specific purposes for which cessions
approved.--While the
Collins
case, supra, indicates the current absence of limitations,
with
respect to use or purpose for which the Federal Government
acquires
land, on the authority to transfer legislative jurisdiction
to that
Government by cession, it is of interest to note something of
the
variety of specific uses and purposes for which cessions had been
deemed
effective: post offices, court-houses and custom houses: United
States
v. Andem, 158 Fed. 996 (D.N.J., 1908); Brown v. United States,
257
Fed. 46 (C.A. 5, 1919), rev'd. on other grounds, 256 U.S. 335
(1921);
State ex rel. Jones v. Mack, 23 Nev. 359, 47 Pac. 763 (1897),
(cession
statute treated as a consent); Saver v. Steinbasuer, 14 Wis.
70
(1881); lighthouses: Newcomb v. Rockport, 183
79
Mass.
74, 66 N.E. 587 (1903); national penitentiary:
Steele v.
Halligan,
229 Fed. 1011 (W.D. Wash., 1916); national home for
disabled
volunteer soldiers: People v. Mouse, 203 Cal. 782, 265 Pac.
944, app.
dem., 278 U.S. 662 (1928); bridge for military purposes: 13
Ops.
A.G. 418 (1871); national parks: Robbins v. United States, 284
Fed. 39
(C.A. 8, 1922); Yellowstone Park Transp. Co. v. Gallatin
County,
31 F.2d 644 (C.A. 9, 1929), cert. den., 280 U.S. 555; State
ex rel.
Grays Harbor Construction Co. v. Department of Labor and
Industries,
167 Wash. 507, 10 P.2d 213 (1932). Cf.
Via v. State
Commission
on Conservation, etc., 9 F.Supp. 556 (W.D.Va., 1935),
aff'd,
296 U.S. 549 (1939); waters contiguous to nave yard: Ex parte
Tatem,
23 Fed. Cas. 708, No. 13,759 (E.D.Va., 1877).
LIMITATIONS ON AREAS OVER WHICH
JURISDICTION MAY BE RETAINED BY
FEDERAL
RESERVATION: The courts have not, apparently,had occasion to
consider
whether any limitations exist with respect to the types of
areas
in which the Federal Government may exercise legislative
jurisdiction
by reservation at the time of granting statehood. There
appears,
however, to be no reason for concluding that Federal
legislative
jurisdiction may not be thus retained with respect to all
the
variety of areas over which Federal legislative jurisdiction may
be
ceded by a State.
PROCEDURAL PROVISIONS IN STATE CONSENT OR
CESSION STATUTES: A
number
of State statutes providing for transfer of legislative
jurisdiction
to the Federal Government contain provisions for the
filing
of a deed, map, plat, or description pertaining to the land
involved
in the transfer, or for other action by Federal or State
authorities,
as an incident of such transfer. Such
provisions have
variously
held to constitute conditions precedent to a transfer of
jurisdiction,
or as
80
pertaining
to matters of form noncompliance with which will not
defeat
an otherwise proper transfer. It has also
been held that
there
is a presumption of Federal compliance with State procedural
requirements. Steele v. Halligan, 229 Fed. 1011 (W.D.Wash., 1916).
JUDICIAL NOTICE OF FEDERAL EXCLUSIVE
JURISDICTION: Comfit of
decisions.--There
is a conflict between decisions of several State
courts
with respect to the question whether the court will take
judicial
notice of the acquisition by the Federal Government of
exclusive
jurisdiction. In Baker v. State, 47
Tex. Cr.App. 482, 83
S.W.
1122 (1904), the court took judicial notice that a certain
parcel
of land was owned by the United States and was under its
exclusive
jurisdiction. And in Lasher v. State,
30 Tex. Cr.App. 387,
17 S.W.
1064 (1891), it was stated that the courts of Texas would
take
judicial notice of the fact that Fort McIntosh is a military
post,
ceded to the United States, and that crimes committed within
such
fort are beyond the jurisdiction of the State courts.
A number of States uphold the contrary
view, however. In People
v.
Collins, 105 Cal. 504, 39 Pac. (1895), the court
81
took
the view that Federal jurisdiction involves a question of fact
and
that the courts would not take judicial notice of such questions.
In United States v. Carr, 25 Fed.Cas.
306, No. 14,732
(C.C.S.D.Ga.,
1872), the court held that allegation of exclusive
Federal
jurisdiction in the indictment, without a deniable the
defendant
during the trial, was sufficient to establish Federal
jurisdiction
over the crime alleged. As to lands
acquired by the
Federal
Government since the amendment of section 355 of the Revised
Statutes
of the United States on February 1, 1940, which provided for
formal
acceptance of legislative jurisdiction, it would appear
necessary
to establish the fact
82
of such
acceptance in order to establish Federal jurisdiction. In
any
event, whether the United States has legislative jurisdiction
over an
area, and the extent of any such jurisdiction, involve
Federal
questions, and a decision on these questions by a State court
will
not be binding on Federal courts.
CHAPTER III
ACQUISITION OF LEGISLATIVE
JURISDICTION
THREE METHODS FOR FEDERAL ACQUISITION OF
JURISDICTION:
Constitutional
consent.--The Constitution gives express recognition
to but
one means of Federal acquisition of legislative jurisdiction--
by
State consent under article I, section 8, clause 17. The debates
in the
Constitutional Convention and State ratifying conventions
leave
little doubt that both the opponents and proponents of Federal
exercise
of exclusive legislature jurisdiction over the seat of
government
were of the view that a constitutional provision such as
clause
17 was essential if the Federal government was to have such
jurisdiction. At no time was it suggested that such a
provision was
unessential
to secure exclusive legislative jurisdiction to the
Federal
Government over the seat of government.
While, as has been
indicated
in the preceding chapter, little attention was given in the
course
of the debates to Federal exercise of exclusive legislative
jurisdiction
over areas other than the seat of government, it is
reasonable
to assume that it was the general view that a special
constitution
provision was essential to enable the United States to
acquire
exclusive legislative jurisdiction over any area. Hence,the
proponents
of exclusive legislative jurisdiction over the seat of
government
and over federally owned areas within the States defended
the
inclusion in the Constitution of a provision such as article I,
section
8, clause 17. And in United States v.
Railroad Bridge Co.,
27 Fed.
Cas. 686, 693, No. 16,114 (C.C.N.D. Ill., 1855), Justice
McLean
suggested that the Constitution provided the sole mode for
transfer
of jurisdiction, and that if this mode is not pursued no
transfer
of jurisdiction can take place.
41
42
State cession.--However, in Fort Leavenworth R.R. v. Lowe, 114
U.S.
525 (1885), the United States Supreme Court sustained the
validity
of an act of Kansas ceding to the United States legislative
jurisdiction
over the Fort Leavenworth military reservation, but
reserving
to itself the right to serve criminal and civil process in
the
reservation and the right to tax railroad, bridge, and other
corporations,
and their franchises and property on the reservation.
In the
course of its opinion sustaining the cession of legislative
jurisdiction
, the Supreme Court said (p. 540):
We are here net with the objection that
the Legislature of a
State has no power to cede away her
jurisdiction and legislative
power over any portion of her territory,
except as such cession
follows under the Constitution from her
consent to a purchase by
the United States for some one of the
purposes mentioned. If
this were so, it would not aid the
railroad company; the
jurisdiction of the State would then
remain as it previously
existed.
But aside from this consideration, it is undoubtedly
true that the State, whether represented
by her Legislature, or
through a convention specially called for
that purpose, is
incompetent to cede her political
jurisdiction and legislative
authority over any part of her territory
to a foreign country,
without the concurrence of the general
government. The
jurisdiction of the United States extends
over all the territory
within the States, and therefore, their
authority must be
obtained, as well as that of the State
within which the
territory is situated, before any cession
of sovereignty or
political jurisdiction can be made to a
foreign country. * * *
In
their relation to the general government, the States of the
Union stand in a very different position
from that which they
hold to foreign governments. Though the jurisdiction and
authority of the general government are
essentially different
form those of the State, they are not
those of a different
country; and the two, the State
43
and general government, may deal with
each other in any way they
may deem best to carry out the purposes
of the Constitution. It
is for the protection and interests of
the States, their people
and property, as well as for the
protection and interests of the
people generally of the United States,
that forts, arsenals, and
other buildings for public uses are
constructed within the
States.
As instrumentalities for the execution of the powers of
the general government, they are, as
already said, exempt from
such control of the States as would
defeat or impair their use
for those purposes; and if, to their more effective use, a
cession of legislative authority and
political jurisdiction by
the State would be desirable, we do not
perceive any objection
to its grant by the Legislature of the
State. Such cession is
really as much for the benefit of the
State as it is for the
benefit of the United States.
Had the
doctrine thus announced in Fort Leavenworth R.R. v. Lowe,
supra,
been known at the time of the Constitutional Convention, it is
not
improbable that article I, section 8, clause 17, at least insofar
as it
applies to areas other than the seat of government, would not
have
been adopted. Cession as a method for
transfer of jurisdiction
by a
State to the United States is now well established, and quite
possibly
has been the method of transfer in the majority of instances
in
which the Federal
Federal reservation.--In Fort Leavenworth
R.R. v. Lowe, supra,
the
Supreme Court approved second method not specified in the
Constitution
of securing legislative jurisdiction in
44
the
United States. Although the matter was
not in issue in the case,
the
Supreme Court said (p. 526):
The land constituting the Reservation was
part of the territory
acquired in 1803 by cession from France,
and until the formation
of the State of Kansas, and her admission
into the Union, the
United States possessed the rights of a
proprietor, and had
political dominion and sovereignty over
it. For many years
before that admission it had been
reserved from sale by the
proper authorities of the United States
for military purposes,
and occupied by them as a military post.
The jurisdiction of the
United States over it during this time was
necessarily
paramount. But in 1861 Kansas was admitted into the Union upon
an equal footing with the original
States, that is, with the
same rights of political dominion and
sovereignty, subject like
them only to the Constitution of the
United States. Congress
might undoubtedly, upon such admission,
have stipulated for
retention of the political authority,
dominion and legislative
power of the United States over the
Reservation, so long as it
should be used for military purposes by
the government; that is,
it could have excepted the place from the
jurisdiction of
Kansas, as one needed for the uses of the
general government.
But from some cause, inadvertence
perhaps, or over-confidence
that a recession of such jurisdiction
could be had whenever
desired, no such stipulation or exception
was made. * * *
[Emphasis added.]
Almost
the same language was used by the Supreme Court of Kansas in
Clay v.
State, 4 Kan. 49 (1866), and another suggestion of judicial
recognition
of this doctrine is to be found in an earlier case in the
Supreme
Court of the United States, Langford v. Monteith, 102 U.S.
145
(1880), in which it was held that when an act of congress
admitting
a State into the Union provides, in accordance with a
treaty,
that the lands of
45
an
Indian tribe shall not be a part of such State or Territory, the
new
State government has no jurisdiction over them. The enabling
acts governing
the admission of several of the States provided that
exclusive
jurisdiction over certain areas was to be reserved to the
United
States. In view of these development,
an earlier opinion of
the
United States Attorney General indicating that a State
legislature,
as distinguished from a State constitutional convention,
had to
give the consent to transfer jurisdiction specified in the
Federal
Constitution (12 Ops. A.G. (1868)), would seem inapplicable
to a
Federal reservation of jurisdiction.
Since Congress has the power to create
States out of territories
and to
prescribe the boundaries of the new States, the retention of
exclusive
legislative jurisdiction over a federally owned area
within
the State is admitted into the Union would not appear to pose
any
serious constitutional difficulties.
No federal legislative jurisdiction
without consent, cession, or
reservation.--It
scarcely needs to be said that unless there has been
a
transfer of jurisdiction (1) pursuant to clause 17 by a Federal
acquisition
of land with State consent, or (2) by cession from the
State
to the Federal Government, or unless the Federal Government has
reserved
jurisdiction upon the admission of the State, the Federal
Government
possesses no legislative jurisdiction over any area within
a
State, such jurisdiction being for exercise entirely by the State,
subject
to non-interference by the State with Federal functions, and
subject
to the free exercise by the Federal Government of rights
46
with
respect to the use, protection, and disposition of its property.
NECESSITY OF STATE ASSENT TO TRANSFER OF
JURISDICTION TO FEDERAL
GOVERNMENT:
Constitutional consent.--The Federal Government cannot,
by
unilateral action on its part, acquire legislative jurisdiction
over
any area within the exterior boundaries of a State. Article I,
section
8, clause 17, of the Constitution, provides that legislative
jurisdiction
may be transferred pursuant to its terms only with the
consent
of the legislature of the State in which is located the area
subject
to the jurisdictional transfer. As was
indicated in chapter
II, the
consent requirement of article I, section 8, clause 17, was
47
intended
by the framers of the Constitution to preserve the States'
jurisdictional
integrity against Federal encroachment.
State cession or Federal
reservation.--The transfer of
legislative
jurisdiction pursuant to either of the two means not
spelled
out in the Constitution likewise requires the assent of the
State
in which is located the area subject to the jurisdictional
transfer. Where legislative jurisdiction is
transferred pursuant to
a State
cession statute, the State has quite clearly assented to the
transfer
of legislative jurisdiction to the Federal Government, since
the
enactment of a State cession statute is a voluntary act on the
part of
the legislature of the State.
The second method not spelled out in the
Constitution of vesting
legislative
jurisdiction in the Federal Government, namely, the
reservation
of legislative jurisdiction by the Federal Government at
the
time statehood is granted to a Territory, does not involve a
transfer
of legislative jurisdiction to the Federal Government by a
State,
since the latter never had jurisdiction over the area with
respect
to which legislative jurisdiction is reserved.
While, under
the
second method of vesting legislative jurisdiction in the Federal
Government,
the latter may reserved such jurisdiction without
inquiring
as to the wishes or desires of the people of the Territory
to
which statehood has been granted, nevertheless, the people of the
Territory
involved have approved, in at least a technical sense, such
reservation. Thus, the reservation of legislative
jurisdiction
constitutes,
in the normal case, one of the terms and conditions for
granting
statehood, and only if all of the terms and conditions are
approved
by a majority of the Territorial legislature, is statehood
granted.
48
NECESSITY OF FEDERAL ASSENT: Express
consent required by R. S.
355.--Acquiescence,
or acceptance, by the Federal Government, as well
as by
the State, is essential to the transfer of legislative
jurisdiction
to the Federal Government. When
legislative
jurisdiction
is reserved by the Federal Government at the time
statehood
is granted to a Territory, it is, of course, obvious that
the
possession of legislative jurisdiction meets with the approval of
the
Federal Government. When legislative
jurisdiction is to be
transferred
by a State to the Federal Government either pursuant to
article
I, section 8, clause 17, of the Constitution, or by means of
a State
cession statute, the necessity of Federal assent to such
transfer
of legislative jurisdiction has been firmly established by
the
enactment of the February 1, 1940, amendment to R.S. 355. While
this
amendment in terms specifies requirement for formal Federal
acceptance
prior to the transfer of exclusive or partial legislative
jurisdiction,
it also applies to the transfer of concurrent
jurisdiction. The United States Supreme Court, in Adams v.
United
States,
319 U.S. 312 (1943), in the cause of its opinion said (pp.
314-315):
Both the Judge Advocate General of the
Army and the Solicitor
of the Department of Agriculture have
con-
49
strued the 1940 Act as requiring that
notice of acceptance be
filed if the government is to obtain
concurrent jurisdiction.
The Department of Justice has abandoned
the view of
jurisdiction which prompted the
institution of this
proceeding, and now advises us of its
view that concurrent
jurisdiction can be acquired only by the
formal acceptance
prescribed in the Act. These agencies cooperated in
developing the Act, and their views are
entitled to great
weight in its interpretation. * * * Besides, we can think of
no other rational meaning for the phrase
"jurisdiction,
exclusive or partial" than that which
the administrative
construction gives it.
Since the government had not accepted
jurisdiction in the
manner required by the Act, the federal
court had no
jurisdiction of this proceeding. In this view it is
immaterial that Louisiana statutes
authorized the government
to take jurisdiction, since at the
critical time the
jurisdiction had not been taken.
Former presumption of Federal
acquiescence in absence of
dissent.--Even
before the enactment of the 1940 amendment to R.S.
355, it
was clear that a State could not transfer, either pursuant to
article
I, section 8, clause 17, of the Constitution, or by means of
a
cession statute, legislative jurisdiction to the Federal Government
without
the latter's consent. Prior to the 1940
amendment to R.S.
355,
however, it was not essential that the consent of the Federal
Government
be expressed formally or in accordance with any prescribed
procedure. Instead, it was presumed that the Federal
Government
accepted
the benefits of a State enactment providing for the transfer
of
legislative jurisdiction. As discussed more fully below, this
presumption
of acceptance was to the effect that once a State
50
legislatively
indicated a willingness to transfer exclusive
jurisdiction
such jurisdiction passed automatically to the Federal
Government
without any action having to be taken by the United
States. However, the presumption would not operate
where Federal
action
was taken demonstrating dissent from the acceptance of
proffered
jurisdiction.
Presumption in transfers by cession.--In
Port Leavenworth R.R.
v.
Lowe, supra, in which a transfer of legislative jurisdiction by
means
of a State cession statute was approved for the first time, the
court
said (p. 528) that although the Federal Government had not in
that
case requested a cession of jurisdiction, nevertheless, "as it
conferred
a benefit, the acceptance of the act is to be presumed in
the
absence of any dissent on their part."
See also United States v.
Johnston,
58 F.Supp. 208 aff'd., 146 F.2d 268 (C.A. 9, 1944), cert.
den.,
324 U.S. 876; 38 Ops. A. G. 341 (1935). A similar view has been
expressed
by a number of courts to transfers of jurisdiction by
cession. In some instances, however, the courts have
indicated the
existence
of affirmative grounds supporting Federal acceptance of
such
transfers. In Yellowstone Park Transp.
Co. v. Gallatin County,
31 F.
2d 644 (C.A. 9, 1929), cert. den., 280 U.S. 555, it was stated
that
acceptance by the United
51
States
of a cession of jurisdiction by a State over a national park
area
within the State may be implied from acts of Congress providing
for
exclusive jurisdiction in national parks.
See also Columbia
River
Packers' Ass'n v. United States, 29 F. 2d 91 (C.A. 9, 1928);
United
States v. Unzeuta, 281 U.S. 138 (1930).
Presumption in transfers by constitution
consent.--Until recent
years,
it was not clear but that the consent granted by a State
pursuant
to article I, section 8, clause 17, of the Constitution,
would
under all circumstances serve to transfer legislative
jurisdiction
to the Federal Government where the latter had
"purchased"
the area and was using it for one of the purposes
enumerated
in clause 17. In United States v.
Cornell, 25 Fed. Cas.
646,
No. 14,867 (C.C.D.R.I., 1819), Justice Story expressed the view
that
clause 17. In the course of his opinion
in that case, Justice
Story
said (p. 648):
The constitution of the United States
declares that congress
shall have power to exercise
"exclusive legislation" in all
"cases whatsoever" over all
places purchased by the consent of
the legislature of the state in which the
same shall be, for the
erection of forts, magazines, arsenals,
dockyards and other
needful buildings. When therefore a purchase of land for any of
these purposes is made by the national
government, and the state
legislature has given its consent to the
purchase, the land so
purchased by the very terms of the
constitution ipso facto falls
within the exclusive legislation of
congress, and the state
jurisdiction is completely ousted. * * *
[Italics added.]
As late
as 1930, it was stated in Surplus Trading Co. v. Cook, 281
U.S.
647, that (p. 652):
52
It long been settled that where lands for
such a purpose [one of
those mentioned i clause 17] are
purchased by the United States
with the consent of the state legislature
the jurisdiction
theretofore residing in the State passes,
in virtue of the
constitutional provision, to the United
States, thereby making
the jurisdiction of the latter the sole
jurisdiction. [Italics
added.]
The
italicize portions of the quoted excepts suggest that article I,
section
8, clause 17, of the Constitution, may be self-executing
where
the conditions specified in that clause for the transfer of
jurisdiction
have been satisfied.
In
Mason Co. v. Tax Comm'n, 302 U.S. 186 (1937), however, the
Supreme
Court clearly extended the acceptance doctrine, first applied
to
transfers of legislative jurisdiction by State cession statutes in
Fort
Leavenworth R.R. v. Lowe, supra, to transfers pursuant to
article
I, section 8, clause 17, of the Constitution. The court said
(p.
207):
Even if it were assumed that the state
statute should be
construed to apply to the federal
acquisitions here involved, we
should still be met by the contention of
the Government that it
was not compelled to accept, and has not
accepted, a transfer of
exclusive jurisdiction. As such a transfer rests upon a grant
by the State, through consent or cession,
it follows, in
accordance with familiar principles
applicable to grants, that
the grant may be accepted or declined.
Acceptance may be
presumed in the absence of evidence of a
contrary intent, but we
know of no constitutional principle which
com-
53
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54
THIS PAGE IS MISSING
55
indicated
that transfers of legislative jurisdiction between the
Federal
Government and a State are matters of arrangement between the
two
governments. Although in that case the
United States Supreme
Court
did not consider the question of whether State consent is
essential
to a State cession of legislative jurisdiction would, if
applied
to Federal retrocession to the State, lead to the conclusion
that
the latter's consent is essential in order for the retrocession
to be
effective. The presumption of consent,
suggested in the Fort
Leavenworth
case, would likewise appear to apply to a State to which
the
Federal Government has retroceded jurisdiction.
While the reasoning of the Fort
leavenworth decision casts
substantial
doubt on the soundness of the view expressed in Renner v.
Bennett,
supra, it should be noted that the Oklahoma Supreme Court,
in two
cases, adopted the conclusions reached by the Ohio Supreme
Court. In the later of the two Oklahoma cases,
McDonnell & Murphy v.
Lunday,
191 Okla. 611, 132 P. 2d 322 (1942), the court, in its
syllabus
to its opinion, stated that consent of the State is not
essential
to a retrocession of legislative jurisdiction by the
Federal
Government. The matter was not
discussed in the opinion,
however,
and the similarity in the wording of the court's syllabus
with
that of the syllabus to the Ohio court's opinion suggests that
the
Oklahoma court merely accepted the Ohio court's conclusion
without
any extended consideration of the matter.
In the earlier of
the two
cases, which were decided in the same year, the Oklahoma
Supreme
Court also stated that the effectiveness of Federal
retrocession
of legislative jurisdiction was not dependent upon the
acceptance
of the State. In that case, Ottinger
Bros. v. Clark, 191
Okla.
488, 131 P.2d 94 (1942), the court said (p. 96 of 131 P.2d):
If an acceptance was necessary, then it
would have been equally
necessary that the Congress of the United
States accept the act
of the legislature of 1913 ceding
Jurisdic-
56
tion to the United States. That was never done. But as shown
in Fort Leavenworth R. Co. v. Lowe,
supra, and St. Louis-San
Francisco R. Company v. Saterfield,
supra, said act was
effective without any acceptance by
Congress. The Act of
Congress of 1936, supra, Therefore became effective immediately
after its final passage.
The
Oklahoma court's reliance on the Fort Leavenworth decision
suggests
that its statement that acceptance by the State is not
necessary
means that there need not be any express acceptance. As
was
indicated above, the United States Supreme Court in Fort
Leavenworth
R. R. v. Lowe, supra, stated that there was a presumption
of
acceptance; it clearly indicated, however, that while it might not
be
necessary to have an express acceptance, nevertheless, the Federal
Government
could reject a State's offer of legislative jurisdiction.
While the decision of the Ohio court in
Renner v. Bennett,
supra,
provides some authority for the proposition that a Federal
retrocession
of legislative jurisdiction is effective irrespective of
the
State's wishes in the matter, the later decision of the United
States
Supreme Court in Fort Leavenworth R. R. v. Lowe, supra,
appears
to support the contrary conclusion; for if, as the United
States
Supreme Court there indicated, transfers of legislative
jurisdiction
other than under clause 17 are matters of arrangement
between
the Federal Government and a State, and if the former may
reject
a State's offer of legislative jurisdiction, the same
reasoning
would support the conclusion that a State might likewise
reject
the Federal Government's offer of a retrocession of
legislative
jurisdiction. The Oklahoma Supreme
Court's decisions do
not, for
the reasons indicated above, appear to be reliable authority
for a
contrary conclusion. The reasoning in
the Fort Leavenworth R.
R. case
further suggests, however, that in the absence of a rejection
the
State's acceptance of the retrocession would be presumed.
Exception.--A possible exception to the
rule that a State
57
may
reject a retrocession of legislative jurisdiction may consist of
cases
in which, as is indicated below, changed circumstances no
longer
permit the Federal Government to exercise legislative
jurisdiction,
as for example, where the Federal Government has
disposed
of the property.
DEVELOPMENT OF RESERVATIONS IN CONSENT
AND SESSION STATUTES:
Former
Federal requirement (R.S. 355) for exclusive jurisdiction.--
Under
the act of September 11, 1841 (and subsequently under section
355 of
the Revised Statutes of the United States, prior to its
amendment
by the act of February 1, 1940), the expenditure of public
money
for the erection of public buildings on any site or land
purchased
y the United States was prohibited until the State had
consented
to the acquisition by the United States of the site upon
which
the structure was to be erected. An
unqualified State consent,
it has
been seen, transfers exclusive legislative jurisdiction to the
United
States. But State statutes often
contained conditions or
reservations
which resulted in a qualified consent inconsistent with
the
former requirements of R. S. 355. In
construing State statutes
during the
1841-1940 period, the Attorneys General of the United
States
was essential in order to meet the requirements of R. S. 355.
Attorneys
General expressed differing views, however, as to what
constitutes
such a consent.
In at least two opinions, the Attorney
General held that State
consent
given subject to the condition that the State retain
concurrent
jurisdiction with the United States granted
58
the
requisite consent of the State to a proposed purchase. Also, the
Attorney
General in other opinions held that, if an act of a State
legislature
amounted to a "consent," then any attempted exceptions,
reservations
or qualifications in the act were void, since, consent
being
given by the legislature, the Constitution vested exclusive
jurisdiction
over the place, beyond the reach of both Congress and
the
State legislature.
The view was also expressed, on the other
hand, that State
statutes
granting the "right of exclusive legislation and concurrent
jurisdiction"
failed to transfer the requisite jurisdiction.
And
statutes
consenting to the purchase of land by the United States
which
provided that the State should retain concurrent jurisdiction
for he
trial and punishment of offenses against the laws of the State
did not
satisfy the requirements of section 355 of the Revised
Statutes. States statutes consenting to the purchase
of lands with
reservation
of (1) the right to administer criminal laws on lands
acquired
by the United States for Federal building sites, (2) the
right
to punish offenses against State laws committed on sites for
United
States buildings or (3) civil and criminal jurisdiction over
persons
in territory ceded to the United States for Federal buildings
were
found not compatible with the requirements of R. S. 355.
In addition, the Attorney General
expressed the view that a
State
statute ceding jurisdiction to the United States was
insufficient
to meet the requirements of R. S. 355 because express
reservations
therein imposing State taxation, labor, safety and
59
health
laws are inconsistent with exclusive jurisdiction; and
statutes
expressing qualified consent to acquisitions of land by the
United
States, it was held by the Attorney General, did not meet the
requirements
of R.S. 355.
Therefore, it may well be said that,
until the 1940 amendment to
R. S.
355 was enacted, it was the view of Attorneys General of the
United
States that cessions by a State had to be free from conditions
or
reservations inconsistent with Federal exercise of exclusive
legislative
jurisdiction.
This view is compatible with an opinion
of the Attorney General
of
Illinois, who ruled that under section 355 of the Revised Statutes
a State
in ceding land to the United States with a transfer of
exclusive
jurisdiction may only reserve the right to serve criminal
and
fugitives from justice who have committed crimes and fled to such
ceded
territory to the same extent as might be done if the criminal
or fugitive
had fled to another part of the State.
Earlier theory that no reservations by
State possible.--It was
at one
time thought that article I, section 8, clause 17, did not
permit
the reservation by a State of any jurisdiction over an area
falling
within the purview of that clause except the right to serve
criminal
and civil process. This, as was
indicated in Chapter II, in
1819,
Justice Story, in United States v. Cornell, supra, expressed
doubts
as to "whether congress are by the terms of the constitution,
at
liberty to purchase lands for forts, dockyards, &c., with the
consent
of a state legislature, where such consent is so qualified
that it
will not justify the 'exclusive jurisdiction,' of congress
there,"
In support of Justice Story's view, it
may be noted that clause
17 does
not, by its terms, suggest he possibility of concurrent
60
or
partial jurisdiction. Moreover, the
considerations cited by
Madison
and others in support of clause 17 suggest that the framers
of the
Constitution sought to provide a method of enabling the
Federal
Government to obtain complete and sole
jurisdiction over
certain
areas within the States. Whatever the
merits of Justice
Story's
suggestion may be, however, it is clear that his views do not
represent
the law today.
State authority to make reservations in
cession statutes
recognized.--The
principle that Federal legislative jurisdiction over
an area
within a State might be concurrent or partial, as well as
exclusive,
was not judicially established until 1885, and it was
approved
by the Supreme Court in a case involving the acquisition of
a
degree of legislative jurisdiction less than exclusive pursuant to
a State
cession statute instead of under article I, section 8, clause
17, of
the Constitution. In that year, the
Supreme Court, in Fort
Leavenworth
R.R. v. Lowe, 114 U.S. 525, said (p. 539):
As already stated, the land constituting
the Fort Leavenworth
military Reservation was not purchased,
but was owned by the
United States by cession from France many
years before Kansas
became a State; and whatever political
sovereignty and dominion
the United States had over the place
comes from the cession of
the State since her admission into the Union. It not being a
case where exclusive legislative
authority is vested by the
Constitution of the United States, that
cession could be
accompanied with such conditions as the
State might see fit to
annex not inconsistent with the free and
effective use of the
fort as a military post..
In the Fort Leavenworth R.R. case the
State of Kansas had
reserved
the right not only to serve criminal and civil process
61
but
also the right to tax railroad, bridge, and other corporations,
and
their franchises and property in the military reservation. As a
result
of this reservation, the Federal Government was granted only
partial
legislative jurisdiction, and such limited legislative
jurisdiction,
provided for by a State cession statute, was held to be
valid. This view has prevailed since 1885, but not
until 1937 did
the
Supreme Court adopt a similar view as to transfers of legislative
jurisdiction
pursuant to article I, section 8, clause 17, of the
Constitution.
In a case decided after the Fort
Leavenworth R. R. case, Crook,
Horner
& Co. v. Old Point Comfort Hotel Co., 54 Fed. 604
(C.C.E.D.Va.,
1893), the court implied the same doubts that had been
expressed
in the Cornell case concerning the inability of the Federal
Government
to acquire through a State consent statute less than
exclusive
jurisdiction provided for in clause 17.
Again, the same
view
appears to have been expressed by the Supreme Court in United
States
v. Unzenta, 281 U.S. 138 (1930), in which it was said (p.
142):
When the United States acquires title to
lands, which are
purchased by the consent of the
legislature of the State within
which they are situated "for the
erection of forts, magazines,
arsenals, dockyards and other needful
buildings," (Const. Art.
I, sec. 8) the Federal jurisdiction is
exclusive of all State
authority. With reference to land otherwise acquired, this
Court said in Ft. Leavenworth Railroad
Company v. Lowe, 114 U.S.
525, 539, 541, that a different rule applies, that is, that the
land and the buildings erected thereon
for the uses of the
national government will be free from any
such interference and
jurisdiction of the State as would impair
their effective use
for the purposes for which the prop-
62
perty was acquired. When, in such cases, a State cedes
jurisdiction to the United States, the
State may impose
conditions which are not inconsistent
with the carrying out of
the purpose of the acquisition. * * *
A
distinction was thus drawn, insofar as the reservation by the State
of
legislative jurisdiction is concerned, between transfers of
legislative
jurisdiction pursuant to article I, section 8, clause 17,
of the
Constitution, and transfers pursuant to a State cession
statute.
State authority to make reservations in
consent statutes
recognized.--In
1937 the Supreme Court for the first time sanctioned
a
reservation of jurisdiction by a State in granting consent pursuant
to
article I, section 8, clause 17, of the Constitution, although an
examination
of the State consent statutes set forth in appendix B of
part I
of this report discloses that such reservations had not, as a
matter
of practice, been uncommon prior to that date.
In 1937, the
Supreme
Court, in James v. Drave Contracting Co., 302 U.S. 134
(1937),
sustained the validity of a reservation by the State of West
Virginia,
in a consent statue, of the right to levy a gross sales tax
with
respect to work done in a federally owned area to which the
consent
statute was applicable. In sustaining the reservation of
jurisdiction
in a State consent statute, the Supreme Court said (pp.
147-149):
It is not questioned that the State may refuse
its consent and
retain
jurisdiction consistent with the governmental purposes for
which
the property was acquired.
63
The right of eminent domain inheres in
the Federal Government by
virtue of its sovereignty and thus it
may, regardless of the
wishes either of the owners or of the
States, acquire the lands
which it needs within their borders. Kohl v. United States, 91
U.S. 367, 371, 372. In that event, as in cases of acquisition
by purchase without consent of the State,
jurisdiction is
dependent upon cession by the State,
jurisdiction is dependent
upon cession by the State and the State
may qualify its cession
by reservations not inconsistent with the
governmental uses. *
* * The result to the Federal Government
is the same whether
consent is refused and cession is
qualified by a reservation of
concurrent jurisdiction, or consent to
the acquisition is
granted with a like qualification. As the Solicitor General has
pointed out, a transfer of legislative
jurisdiction carries with
it not only benefits but obligations, and
it may be highly
desirable, in the interest both of the
national government and
of the State, that the latter should not
be entirely ousted of
its jurisdiction. The possible importance of reserving to the
State jurisdiction for local purposes
which involve no
interference with the performance of
governmental functions is
becoming more and more clear as the
activities of the Government
expand and large areas within the States
are acquired. There
appears to be no reason why the United
States should be
compelled to accept exclusive
jurisdiction or the State be
compelled to grant it in giving its
consent to purchases.
Normally, where governmental consent is
essential, the consent
may be granted upon terms appropriate to
the subject and
transgressing no constitutional
limitation.
* *
* * *
Clause 17 contains no express stipulation
that the consent of
the State must be without
reservations. We think that such a
stipulation should not be implied. We are unable to reconcile
such an implication with the
64
freedom of the State and its admitted
authority to refuse or
qualify cessions of jurisdiction when
purchases have been made
without consent or property has been
acquired by condemnation.
In the present case the reservation by
West Virginia of
concurrent jurisdiction did not operate
to deprive the United
States of the enjoyment of the property
for the purposes for
which it was acquired, and we are of the
opinion that the
reservation was applicable and effective.
Retention by Federal Government of less
than exclusive
jurisdiction
on admission of State.--The courts have not had occasion
to rule
on the question of whether the Federal Government, at the
time
statehood is granted to a Territory, may retain partial or
concurrent
jurisdiction, instead of exclusive jurisdiction, over an
area
within the exterior boundaries of the new State. There appears
to be
no reason, however, why a degree of legislative jurisdiction
less
than exclusive in Fort Leavenworth R. R. v. Lowe, supra, and
James
v. Drawo Contracting Co., supra, the Supreme Court would
conclude
that partial or concurrent legislative jurisdiction may not
be
retained.
Non-interference with Federal use now
sole limitation on
reservations
by State.--At this time the quantum of jurisdiction
which
may be reserved in a State cession or consent statute is almost
completely
within the discretion of the State, subject always, of
course,
to Federal acceptance of the quantum tendered by the State,
and
subject also to non-impingement of the reservation upon any power
or
authority vested in the Federal Government by various provisions
of the
Constitution. In Fort Leavenworth R. R.
v. Lowe, supra, the
Supreme
Court indicated (p. 539) that a cession might be accompanied
with
such conditions as the State might see fit to annex "not
inconsistent
with the free and effective use of the
65
fort as
a military post." In Arlington
Hotel Company v. Fant, 278
U.S.
439 (1929), the Supreme Court likewise indicated (p. 451) that
the
State had complete discretion in determining what conditions, if
any, should
be attached to a cession of legislative jurisdiction,
provided
that it "saved enough jurisdiction for the United States to
enable
it to carry out the purpose of the acquisition of
Jurisdiction." In United States v. Unzeuta, 281 U.S. 138
(1930). the
Supreme
Court stated (p. 142) that in the cession statute the State
"may
impose conditions which are not inconsistent with the carrying
out of
the purpose of the acquisition."
While, it will be noted,
these
limitations on State reservations of jurisdiction over Federal
property
all related to reservations in cession statutes, no basis
for the
application of a different rule to reservations in a consent
statute
would seem to exist under the decision in James v. Dravo
Contracting
Co., supra. And it should be further noted that the
Supreme
Court in the Drave case implied a similar limitation as to
the
discretion of a State in withholding jurisdiction under a consent
statute
by stating (p. 149) that the reservation involved in that
case
"did not operate to deprive the United States of the enjoyment
of the
property for the purposes for which it was acquired."
Specific reservations approved.--While
the general limitation of
non-interference
with Federal use has been stated to apply to the
exercise
by a State of its right to reserve a quantum of jurisdiction
in its
cession or consent statute, apparently in no case to date has
a court
had occasion to invalidate a reservation by a State as
violative
of that general limitation. State
jurisdictional
reservations
which have been sustained by the
66
courts
include the reservation of the right to tax privately owned
railroad
property in a military reservation (Fort leavenworth R.R.
v.Lowe,
supra; United States v. Unzeuta, supra); to levy a gross
sales
tax with respect to work done in an area of legislative
jurisdiction
(James v. Dravo Contracting Co., supra; to tax the sale
of
liquor in a national park subject to legislative jurisdiction
(Collins
v. Yosemite Park, 304 U.S. 518 (1938)); to permit residents
to
exercise the right of suffrage (Arapojolu v. McMenamin, 113
Cal.App.2d
824, 249 P.2d 318 (1952)); and to have criminal
jurisdiction
as to any malicious, etc., injury to the buildings of
the
Government within the area over which jurisdiction had been ceded
to the
United States (United States v. Andem, 158 Fed. 996 (D.N.J.,
1908)0. And, of course, there are numerous areas,
used by the
Federal
Government for nearly all of its many purposes, as to which
the
several States retain all legislative jurisdiction, solely or
concurrently
with the United States, or as to which they have
reserved
a variety of rights while granting legislative jurisdiction
as to
other matters to the Federal Government, and as to which no
question
concerning the State-retained jurisdiction has been raised.
LIMITATIONS ON AREAS OVER WHICH
JURISDICTION MAY BE ACQUIRED BY
CONSENT
OF STATE UNDER CLAUSE 17: In
general.--Article I, section 8,
clause
17, of the Constitution, provides that the Congress shall have
the
power to exercise exclusive legislation over "Places" which have
been
"purchased" by the Federal Government, with the consent of the
legislature
of the State, "for the Erection of Forts, Magazines,
Arsenals,
dock-Yards, and other needful Buildings."
The quoted words
serve
to limit the scope of clause 17 (but do not apply, since the
decision
in the Fort Leavenworth R.R. case, supra, to transfers of
jurisdiction
by other means). They exclude from its purview
places
which
were not "purchased" by the
67
Federal
Government, and, if the rule of ejusdem generis applied,
places
which, though purchased by the Federal Government, are for use
for
purposes not enumerated in the clause.
Area required to be "purchased"
by Federal Government.--The
"purchase"
requirement contained in clause 17 serves to exclude from
its
operation places which had been part of the public domain and
have
been reserved from sale. See Fort Leavenworth
R.R. v. Lowe,
supra;
United States v. Unzeuta, supra; Six Cos., Inc. v. De Vinney,
2
F.Supp. 693 (D.Nev., 1933); Lt. Louis-San Francisco Ry. v.
Satterfield,
27 F.2d 586 (C.A. 8, 1928). It likewise
serves to
exclude
places which have been rented to the United States
Government. Unites States v. Tierney, 28 Fed.Cas. 159,
No. 16,517
(C.C.S.D.Ohio,
1864); Mayor and City Council of Baltimore v.
Linthicum,
170 Md. 245, 183 Atl. 531 (1936); People v. Bondman, 161
Misc.
Rep. 145, 291 N.Y.S. 213 (1936). Acquisition
by the United
States
of less than the fee is insufficient for the acquisition of
exclusive
jurisdiction under clause 17. Ex Parte
Hebard, 11
68
Fed.
Cas. 1010, No. 6312 (C.C.D.Kan., 1877); United States v.
Schwalby,
8 Tex.Civ.App. 679, 29 S.W. 90 (1894), writ of error
refused,
87 Tex. 604, 30 S.W. 435, rev'd. on other grounds, 162 U.S.
255. And Federal purchase of property at a tax
sale has been held
not to
transfer jurisdiction. United States v.
Penn, 48 Fed. 669
(C.C.E.D.Va.,
1880).
The term "purchased" does,
however, include acquisitions by
means
of condemnation proceedings,as will as acquisitions pursuant to
negotiated
agreements. See James v. Dravo
Contracting Co., supra;
Mason
Co. v. Tax Com'n, supra; Holt v. United States, 218 U.S. 245
(1910);
Chaney v. Chaney, 53 N.M. 66, 201 P.2d 782 (1949); Arledge v.
Mabry,
52 N.M. 303, 197 P.2d 884 (1948); People v. Collins, 105 Cal.
504, 39
Pac. 16, 17 (1895). The term also
includes cessions of title
by a
State to the Federal Government. United States v. Tucker, 122
Fed.
518 (W.D.Ky., 1903). A conveyance of
land to the United States
for a
consideration of $1 has likewise been regarded as a purchase
within
the meaning of clause 17. 39 Ops. A.G.
99 (1937).
Acquisition
of property by a corporation created by a special act of
Congress
as an instrumentality of the United States for the purpose
of
operating a soldiers' home constitutes a purchase by the Federal
Government
for purposes of clause 17. Sinks v. Reese,
supra; People
v.
Mouse, 203 Cal. 782, 265 Pac. 944, app. dism., sub nom. California
v.
Mouse, 278 U.S. 662, cert. den., 278 U.S. 614 (1928); State v.
Intoxicating
Liquors, 78 Me. 401, 6 Atl. 4 (1886); State ex rel.
69
Lyle v.
Willett, 117 Tenn. 334, 97 S.W. 299 (1906); Foley v. Shriver,
81 Va.
568 (1886). However, it has been held
that a purchase by such
a
corporation does not constitute a purchase by the Federal
Government. In re O'Connor, 37 Wis. 379, 19 Am. Rep. 765
(1875); In
re
Kelly, 71 Fed. 545 (C.C.E.D. Wis., 1895); Brooks Hardware Co. v.
Greer,
111 Me. 78, 87 Atl. 889 (1911), (question was left open); see
also
Tagge v. Gulzow, 132 Neb. 276, 271 N.W. 803 (1937). Since
acquisitions
by condemnation are construed as purchases under article
I,
section 8, clause 17, of the Constitution, it seems that donations
would
also be interpreted as purchases. See
Pothier v. Rodman, 285
Fed.
632 (D.R.I., 1923), aff'd., 264 U.S. 399 (1924); question raised
but
decision based on other grounds in Mississippi River Fuel
Corporation
v. Fontenot, 234 F.2d 898 (C.A. 5, 1956), cert. den., 352
U.S.
916.
In State ex rel. Board of Commissioners
v. Bruce, 104 Mont. 500,
69 P.2d
97 (1937), the court considered the question when a purchase
is
completed. Originally, Montana had a
combined cession and consent
statute,reserving
to the State only the right to serve process.
Another
statute was enacted in 1934 consenting to the acquisition of
and
ceding jurisdiction over lands around Fort Peck Dam, but
reserving
to the State certain rights, including the right to tax
within
the territory. The Government, prior to
the passage of the
second
act, secured options to purchase land from individuals,
entered
into possession and made improvements under agreements with
the
owners. Contracts of sale and deeds
were not executed until
after
the passage of the second act. The
court held that by going
into
possession and making improvements the United States accepted
the option
and completed a binding obligation which was a "purchase"
under
the Constitution, and that the State had no right to tax within
the
ceded territory. The case came up again
on the same facts in
light
of several Supreme Court decisions. The
Supreme Court of
Montana
reached the same decision. State ex
rel. Board of
Commissioners
v. Bruce, 106 Mont. 322, 77 P.2d 403 (1938), aff'd.,
305
U.S. 577. But
70
in
Valley County v. Thomas, 109 Mont. 345, 97 P.2d 345 (1939), the
Montana
court came to a contrary conclusion, specifically overruling
the
Bruce cases.
Term "needful Buildings"
construed. The words "Forts,
Magazines,
Arsenals, dock-Yards, and other needful Buildings," as
they
appear in article I, section 8, clause 17, of the Constitution,
generally
have not been construed according to the rule of ejusdem
generis;
the words "other needful Buildings"have been construed as
including
structures not of a military character ad any buildings or
works
necessary for governmental; purposes.
28 Ops. A.G. 185 (1935).
Thus,
post offices, courthouses and customs houses all have been held
to
constitute "needful Buildings."
The term "needful Buildings" in
71
clause 17
has also been held to include national cemeteries,
penitentiaries,
steamship piers, waters adjoining Federal lands,
aeroplane
stations, Indian schools, canal locks and dams, National
Homes
for Disabled Volunteer Soldiers, res-
72
ervoirs
and aqueducts, and a relocation center.
In Nikis v.
Commonwealth,
144 Va. 618, 131 S.E. 236 (1926), it was held that the
abutment
and approaches connected with a bridge did not come within
the
term "buildings," but a cession statute additionally reciting
consent
rather than a simple consent statute was there involved.
The Attorney General has said (26 Ops.
A.G. 289 (1907), (p.
297)):
There can be no question and, so far as I
am aware, none has
been raised that the word
"buildings" in this passage [of the
Constitution] is used in a sense
sufficiently broad to include
public works of any kind * * *
The
most recent, and most comprehensive, definition of the term
"needful
Buildings," as it appears in clause 17, is to be found in
James
v. Dravo Contracting co., 302 U.S. 134, in which the court said
(pp.
142-143):
Are the locks and dams in the instant
case "needful buildings"
within the purview of Clause 17? The State contends that they
are not.
If the clause were construed according to the rule of
ejusdem generis, are those of the same
sort as forts, magazines,
arsenals and dockyards, that is,
structures for military
purposes. And it may be that the thought of such "strongholds"
was uppermost in the minds of the framers. Eliot's Debates, Vol.
5, pp. 130, 440, 511; Cf. Story on the
Constitution,
73
Vol. 2 Sec. 1224. But such a narrow construction has been
found
not to be absolutely required and to be
unsupported by sound
reason in view of the nature and
functions of the national
government which the Constitution
established. * * * We construe
the phrase"other needful
buildings" as embracing whatever
structures are found to be necessary in
the performance of the
functions of the Federal Government.
In this decision,the Supreme court
expressed its sanction to the
conclusion
therefore generally reached by other authorities, that the
rule of
ejusdem generis had been renounced, and that acquisition by
the
United States for any purpose might be held to fall within the
Constitution,
where a structure is involved.
LIMITATIONS ON AREAS OVER WHICH
JURISDICTION MAY BE ACQUIRED BY
CESSION
OF STATE: Early view.--Until the Fort leavenworth R.R. case,
the
courts had made no distinction between consents and cessions, and
had
treated cessions as the "consent" referred to in the
Constitution. United States v. Davis, 25 Fed. Cas. 781,
No. 14,930
(C.C.D.Kan..,
74
1877). In the case of In re O'Connor, 37 Wis. 379,
19 Am. Rep. 765
(1875),
decided before Fort Leavenworth R.R. v. Lowe, supra, the
stated
(p. 387):
For it is not competent for the
legislature to abdicate its
jurisdiction over its territory, except where the lands are
purchased by the United States, for the
specific purposes
contemplated by the constitution. When that is done, the state
may cede its jurisdiction over them to
the United States.
Present view.--After the Fort Leavenworth
R.R. case, it was held
that
either a purchase with the consent of the States or an express
cession
of jurisdiction could accomplish a transfer of legislative
jurisdiction. United States v. Tucker, 122 Fed. 518 (W.D.
Ky.,
1903);
Commonwealth v. King, 252 Ky. 699, 68 S.W.2d 45 (1934); State
ex rel.
Jones v. Mack, 23 Nev. 359, 47 Pac. 763 (1897); Curry v.
State,
111 Tex.Cr.App. 264, 12 S.W.2d (1928); 9 Ops.A.G. 263 (1858);
13
Ops.A.g. 411 (1871); 15 Ops.A.G. 480 (1887); cf. United States v.
Andem,
158 Fed. 996 (D.N.J., 1908).
By means of a cession of legislative
jurisdiction by a State, the
Federal
Government may acquire legislative jurisdiction not only over
areas which
fall within the purview of article I, section 8, clause
17, of
the Constitution, but also over areas not within the scope of
that
clause. While a State may cede to the
Federal Government
legislative
jurisdiction over a "place" which was "purchased" by the
Federal
Government for the "Erection of Forts, Magazines, Arsenals,
dock-Yards,
and other needful Buildings," it is not essential that an
area be
"purchased" by the Federal Government in order to be the
subject
of a State cession statute. Thus, the
transfer of
legislative
jurisdiction pursuant to a State cession statute has
75
been
sustained with respect to areas which were part of the public
domain
and which have been reserved from sale or other disposition.
Fort
Leavenworth R.R. v. Lowe, supra; Chicago, Rock Island & Pacific
Railway
v. McGlinn, 114 U.S. 542 (1885); Benson v. United States, 146
U.S.
325 (1892). It is not even essential
that the Federal
Government
own an area in order to exercise with respect to it
legislative
jurisdiction ceded by a State. Thus, a
privately owned
railroad
line running through a military reservation may be subject
to
federal legislative jurisdiction as the result of a cession. Fort
Leavenworth
R.R. v. Lowe, supra; Chicago, etc., Ry. v. McGlinn,
supra;
United States v. Unazeuta, supra.
Similarly, a privately
operated
hotel or bath house leased from the Federal Government and
licitation
a military reservation may, as a result of a State cession
statute,
be subject to Federal legislative jurisdiction. Arlington
Hotel
Company v. Fant, 278 U.S. 439 (1929);
Buckstaff Bath House Co.
v.
McKinley, 308 U.S. 358 (1939). Superior Bath House Co. v.
McCaroll,
312 U.S. 176 (1941). Legislative jurisdiction acquired
pursuant
to a State cession statute may extend to privately owned
land
within the confines of a national park.
Petersen v. United
States,
191 F.2d 154 (C.A. 9, 1951), cert. den., 342 U.S. 885. It
will
not so extend if the State's cession statute limits cession to
lands
owned by the Government. Op. A.G.,
Cal., No. NS3019 (Oct. 22,
1940). In United States v. Unzeuta, supra, the
extension of Federal
legislative
jurisdiction over a privately owned railroad right-of-way
located
within an area which was owned by the Federal Government and
subject
to the legislative jurisdiction of the Federal Government was
justified
as follows (pp. 143-145):
* * * There was no express exception of
jurisdiction over this
right of way, and it can not be said that
there
76
was any necessary implication creating
such an exception. The
proviso that the jurisdiction ceded
should continue no longer
than the United States shall own and
occupy the reservation had
reference to the future and cannot be
regarded as limiting the
cession of the entire reservation as it
was known and described.
As the right of way to be located with
the approval of the
Secretary of War ran across the
reservation, it would appear to
be
impracticable for the State to attempt to police it, and the
Federal jurisdiction may be considered to
be essential to the
appropriate enjoyment of the reservation
for the purpose to
which it was devoted.
* * * * *
The mere fact that the portion of the
reservation in question is
actually used as a railroad right of way
is not controlling on
the question of jurisdiction. Rights of way for various
purposes,such as for railroads, ditches.
pipe lines, telegraph
and telephone lines across Federal
reservations, may be entirely
compatible with exclusive jurisdiction
ceded to the United
States. * * * While the grant of the
right of way to the
railroad company contemplated a permanent
use, this does not
alter the fact that the maintenance of
the jurisdiction of the
United States over the right of way, as
being within the
reservation, might be necessary in order
to secure the benefits
intended to be derived from the
reservation.
This excerpt from the court's opinion
appears to indicate that
the
proctocolitis of a given situation will be highly persuasive, if
not
conclusive, on the issue of whether Federal legislative
jurisdiction
may be exercised over privately owned areas used for
non-governmental
purposes.
Cessions of legislative jurisdiction are
free not only from the
requirements
of article I, section 8, clause 17, as to purchase--and,
with
it, ownership--but they are also free from the requirement that
the
property be used for one of the purposes enumerated in clause 17,
assuming
that however broad
77
those
purposes are under modern decisions the term "other needful
Buildings"
used therein may have some limitation.
In Collins v.
Yosemite
Park Co., 304 U.S. 518 (1938), in which the Supreme Court
sustained
the exercise of Federal legislative jurisdiction acquired
pursuant
to a State cession statute,it was said (pp. 529-530):
*
* * There is no question about the power of the United States
to exercise jurisdiction secured by
cession, thought this is not
provided for by Clause 17. And it has been held that such a
cession may be qualified. It has never been necessary,
heretofore, for this Court to determine
whether or not the
United States has the constitutional
right to exercise
jurisdiction over territory, within the
geographical limits of a
State, acquired for purposes other than
those specified in
Clause 17. It was raised but not decided in Arlington Hotel v.
Fant, 278 U.S. 439, 454. It was assumed without discussion in
Yellowstone Park Transportation Co. v.
Gallatin County, 31 F.2d
644. On account of the regulatory phases
of the Alcoholic
Beverage control Act of California, it is
necessary to determine
that question here. The United States has large bodies of
public lands. These properties are used for forests,parks,
ranges,wild life sanctuaries, flood
control, and other purposes
which are not covered by Clause 17. In Silas Mason Co. v. Tax
commission of Washington, 302 U.S. 186,
we upheld in accordance
with the right of the United States to
acquire private property
for use in "the reclamation of arid
and semiarid lands" and to
hold its purchases subject to state
jurisdiction. In other
instances,it may be deemed important or
desirable by the
National Government and the State
Government in which the
particular property is located that
exclusive jurisdiction be
vested in the United States by cession or
consent. No ques-
78
tion is raised as to the authority to
acquire land or provide
for national parks. As the National Government may, "by
virtue
of its sovereignty" acquire lands
within the border of states by
eminent domain and without their consent,
the respective
sovereignties should be in a position to
abject their
jurisdiction. There is no constitutional objecting to such an
adjustment of right. * * *
This
quoted excerpt suggests that the Federal Government may exercise
legislative
jurisdiction, ceded to it by a State, over any area which
it
might own, acquire, or use for Federal purposes. In Bowen v.
Johnston,
306 U.S. 19 (1939), the Supreme Court again indicated that
it was
constitutionally permissible for the Federal Government to
exercise
over a national park area legislative jurisdiction which
might
be ceded to it by a State.
Specific purposes for which cessions
approved.--While the
Collins
case, supra, indicates the current absence of limitations,
with
respect to use or purpose for which the Federal Government
acquires
land, on the authority to transfer legislative jurisdiction
to that
Government by cession, it is of interest to note something of
the
variety of specific uses and purposes for which cessions had been
deemed
effective: post offices, court-houses and custom houses: United
States v.
Andem, 158 Fed. 996 (D.N.J., 1908); Brown v. United States,
257
Fed. 46 (C.A. 5, 1919), rev'd. on other grounds, 256 U.S. 335
(1921);
State ex rel. Jones v. Mack, 23 Nev. 359, 47 Pac. 763 (1897),
(cession
statute treated as a consent); Saver v. Steinbasuer, 14 Wis.
70
(1881); lighthouses: Newcomb v. Rockport, 183
79
Mass.
74, 66 N.E. 587 (1903); national penitentiary:
Steele v.
Halligan,
229 Fed. 1011 (W.D. Wash., 1916); national home for
disabled
volunteer soldiers: People v. Mouse, 203 Cal. 782, 265 Pac.
944,
app. dem., 278 U.S. 662 (1928); bridge for military purposes: 13
Ops.
A.G. 418 (1871); national parks: Robbins v. United States, 284
Fed. 39
(C.A. 8, 1922); Yellowstone Park Transp. Co. v. Gallatin
County,
31 F.2d 644 (C.A. 9, 1929), cert. den., 280 U.S. 555; State
ex rel.
Grays Harbor Construction Co. v. Department of Labor and
Industries,
167 Wash. 507, 10 P.2d 213 (1932). Cf.
Via v. State
Commission
on Conservation, etc., 9 F.Supp. 556 (W.D.Va., 1935),
aff'd,
296 U.S. 549 (1939); waters contiguous to nave yard: Ex parte
Tatem,
23 Fed. Cas. 708, No. 13,759 (E.D.Va., 1877).
LIMITATIONS ON AREAS OVER WHICH
JURISDICTION MAY BE RETAINED BY
FEDERAL
RESERVATION: The courts have not, apparently,had occasion to
consider
whether any limitations exist with respect to the types of
areas
in which the Federal Government may exercise legislative
jurisdiction
by reservation at the time of granting statehood. There
appears,
however, to be no reason for concluding that Federal
legislative
jurisdiction may not be thus retained with respect to all
the
variety of areas over which Federal legislative jurisdiction may
be
ceded by a State.
PROCEDURAL PROVISIONS IN STATE CONSENT OR
CESSION STATUTES: A
number
of State statutes providing for transfer of legislative
jurisdiction
to the Federal Government contain provisions for the
filing
of a deed, map, plat, or description pertaining to the land
involved
in the transfer, or for other action by Federal or State
authorities,
as an incident of such transfer. Such
provisions have
variously
held to constitute conditions precedent to a transfer of
jurisdiction,
or as
80
pertaining
to matters of form noncompliance with which will not
defeat
an otherwise proper transfer. It has
also been held that
there
is a presumption of Federal compliance with State procedural
requirements. Steele v. Halligan, 229 Fed. 1011 (W.D.Wash., 1916).
JUDICIAL NOTICE OF FEDERAL EXCLUSIVE
JURISDICTION: Comfit of
decisions.--There
is a conflict between decisions of several State
courts
with respect to the question whether the court will take
judicial
notice of the acquisition by the Federal Government of
exclusive
jurisdiction. In Baker v. State, 47
Tex. Cr.App. 482, 83
S.W.
1122 (1904), the court took judicial notice that a certain
parcel
of land was owned by the United States and was under its
exclusive
jurisdiction. And in Lasher v. State,
30 Tex. Cr.App. 387,
17 S.W.
1064 (1891), it was stated that the courts of Texas would
take
judicial notice of the fact that Fort McIntosh is a military
post,
ceded to the United States, and that crimes committed within
such
fort are beyond the jurisdiction of the State courts.
A number of States uphold the contrary
view, however. In People
v.
Collins, 105 Cal. 504, 39 Pac. (1895), the court
81
took
the view that Federal jurisdiction involves a question of fact
and
that the courts would not take judicial notice of such questions.
In United States v. Carr, 25 Fed.Cas.
306, No. 14,732
(C.C.S.D.Ga.,
1872), the court held that allegation of exclusive
Federal
jurisdiction in the indictment, without a deniable the
defendant
during the trial, was sufficient to establish Federal
jurisdiction
over the crime alleged. As to lands
acquired by the
Federal
Government since the amendment of section 355 of the Revised
Statutes
of the United States on February 1, 1940, which provided for
formal
acceptance of legislative jurisdiction, it would appear
necessary
to establish the fact
82
of such
acceptance in order to establish Federal jurisdiction. In
any event,
whether the United States has legislative jurisdiction
over an
area, and the extent of any such jurisdiction, involve
Federal
questions, and a decision on these questions by a State court
will
not be binding on Federal courts.
CHAPTER IV
TERMINATION OF
LEGISLATIVE
JURISDICTION
UNILATERAL RETROCESSION OR RECAPTURE OF
JURISDICTION:
RETROCESSION.--There
has been discussed in the preceding chapter
whether
the United States, while continuing in ownership and
possession
of land, may unilaterally retrocede to the State
legislative
jurisdiction it has held with respect to such land. It
was
concluded that, while there is opinion to the contrary, by
analogy
to the decision in the case of Fort Leavenworth R.R. v. Lowe,
114
U.S. 525 (1885), acceptance of such retrocession by the State is
essential,
although it seems probable that such acceptance may be
presumed
in the absence of--to use the term employed in the Fort
Leavenworth
R.R. case, supra--a "dissent" on the part of the State.
Recapture.--In Yellowstone Park Transp.
Co. v. Gallatin County,
31 F.2d
644 (C.A. 9, 1929), cert. den., 280 U.S. 555, it was stated
that a State
cannot unilaterally recapture jurisdiction which had
previously
been ceded by it to the Federal Government.
A similar
rule
must apply, for lack of any basis on which to rest any different
legal
reasoning, where Federal legislative jurisdiction by the
Federal
Government at the time the State was admitted into the Union,
or
where it is derived
83
84
from
the provisions of article I, section 8, clause 17, of the
Constitution. In any case, therefore, it would appear
clear that a
State
cannot unilaterally recapture legislative jurisdiction once it
is
vested in the Federal Government.
MEANS OF TERMINATION OF JURISDICTION: In
general.--Federal
legislative
jurisdiction over an area within a State will, however,
terminate
under any of the following three sets of circumstances:
1.
Where the Federal Government, by or pursuant to an act
of Congress, retrocedes jurisdiction and
such retrocession is
accepted by the State;
2.
Upon the occurrence of the circumstances specified in a
State cession or consent statute for the
reversion of
legislative jurisdiction to the State; or
3.
When the property is no longer used for a Federal
purpose.
FEDERAL STATUTORY RETROCESSION OF
JURISDICTION: In general.--
Over
the years the United States Government has, in the natural
course
of events, acquired legislative jurisdiction over land when
such
jurisdiction obviously was neither needed nor exercised. In
some
such cases where hardship has been worked on the Federal
Government,
on State and local governments, or on individuals,
statutes
have been enacted by the Congress returning jurisdiction to
the
States. These statutes can be grouped into
categories:
1.
Those enacted to give the inhabitants of federally
owned property the normal incidents of
civil government enjoyed
by the residents of the State in which
the property is located,
such as voting and access to the local
courts i cases where
residence within a State is a factor.
2.
Those enacted to give State or local governments
authority for policing highways
traversing federally owned
property.
85
A small
number of other somewhat similar statutes cannot easily be
categorized.
This chapter deals only with general
retrocessions of
legislative
jurisdiction possessed by the United States.
Retrocessions
relating to particular matters, such as taxation, will
be
dealt with in chapter VII.
Right to retrocede not early
apparent.--The right of Congress to
retrocede
jurisdiction over lands which are within the exclusive
legislative
jurisdiction of the United States has not always been
apparent. Justice Story, it has already been noted,
had expressed
the
view in 1819 that the Federal Government was required by clause
17 to
assume jurisdiction over areas within the conflicting views
that
continued to exist on the subject of retrocession even at that
late
date. Both the senators who favored the
bill and those who
opposed
it were desirous of finding a means of negating or avoiding a
decision
of the Supreme Court of Ohio, preceding the enactment in
1871 of
a statute retroceding jurisdiction over a disabled soldiers'
home in
Ohio demonstrates the conflicting views that continued to
exist
on the subject of retrocession even at that late date. Both the
senators
who favored the bill and those who opposed it were desirous
of
finding a means of negating or avoiding a decision of the Supreme
Court
of Ohio, which had held that the residents of the home could
not
vote because of Federal possession of legislative jurisdiction
over
the area on which the home was located.
Contemplating Justice
Story's
decision on the one hand, and the Ohio decision on the other,
Senator
Thurman of Ohio said, "the dilemma, therefore, is one out of
which
you cannot get." Out of the dilemma, however, Congress did get,
but not
without much debate. Without detailing
the arguments, pro
and
con, advanced during Senate debate, a few quotations will suffice
to
point out the reasoning in favor of and against the measure.
86
During the
debate Senator Thurman also said:
It [the bill] provides, that "the
jurisdiction over the place"
shall be ceded to the State of Ohio. Is it necessary for me to
say to any lawyer that that is an
unconstitutional bill? The
Constitution of the United States says in
so many words that the
Congress shall have power "to
exercise exclusive jurisdiction in
all cases whatsoever over" such
territory. Can Congress cede
away one of its powers? We might as well undertake to cede away
the power to make war, the power to make
peace, to maintain an
Army or a Navy, or to provide a civil
list, as to undertake to
cede away that power.
and:
* * * As was read to the Senate yesterday
from a decision made
by Judge Story, it is not competent for
Congress to take a
cession of land for one of the purposes
mentioned in the clause
of the Constitution which I read
yesterday, to wit, for the seat
of the national capital, for forts,
arsenals, hospitals, or the
like; it is not competent for Congress to
take any such cession
limited by a qualification that the State
shall have even
concurrent jurisdiction with the Federal
Government over that
territory, much less that the State can
have exclusive
jurisdiction over it; because the
Constitution of the United
States, the supreme law of the land,
declares that over all
territory owned by the United States for
such a purpose Congress
shall have exclusive jurisdiction. Then, obviously, if it is
not competent for Congress to accept from
a State a grant of
territory the State reserving
jurisdiction over it, or even a
qualified jurisdiction over it, where the
territory is used for
one of these purposes, as a matter of
course Congress cannot
cede away the jurisdiction of the United
States.
87
In discussing whether it was necessary
that exclusive
jurisdiction
be in the United States, Senator Morton of Indiana, one
of the
proponents of the bill, said:
It [clause 17] does not say it shall
have; but the language is,
"and to exercise like
authority;" that is, it may acquire
complete jurisdiction; but may it not
acquire less? Now, I
undertake to say that the rule and the
legislation heretofore by
which the Government has had exclusive
jurisdiction over
arsenals in the States has been without
good reason. It has
always been a difficulty. There is not any sense in it. It
would have been a matter of more
convenience from the beginning,
both to the Federal Government and the
States, if the ordinary
jurisdiction to punish crimes and enforce
ordinary contracts had
been reserved over arsenal grounds and in
forts. There never
was any reason in that. It has always been a blunder and has
always been an inconvenience.
But the question is now presented whether
the Government may
not, by agreement with the State, take
jurisdiction just so far
as she needs it, and leave the rest to
the State, where it was
in the first place. It seems to me that reason says that that
may be done, because the greater always
includes the less. It
seems, too, that convenience would say
that it should be done. *
* *
The bill was passed. The Supreme Court of the State of Ohio, in
another
contested election case, thereafter upheld the right of the
inmates
of the home to vote. In the course of
the court's opinion
the
authority of Congress to retrocede jurisdiction was likewise
upheld.
Right to retrocede established.--That the
Federal Government may
retrocede
to a State legislative jurisdiction over an
88
area
and that a State may accept such retrocession would appear to be
fully
established by the reasoning adopted by the Supreme Court in
Fort
Leavenworth R.R. v. Lowe, 114 U.S. 525 (1885), in which it was
stated
that the rearrangement of legislative jurisdiction over a
Federal
area within the exterior boundaries of a State is a matter of
agreement
by the Federal Government and the particular State in which
the
federally owned area is located. While
this reasoning was
employed
to sustain a cession of legislative jurisdiction by a State
to the Federal
Government, it would appear to be equally applicable
to a
retrocession of legislative jurisdiction to a State.
Some 27 years after enactment of the
legislation retroceding
jurisdiction
over the disabled soldiers' home in Ohio, Congress
enacted
a statute similarly retroceding jurisdiction over such homes
in
Indiana and Illinois. The Supreme Court of Indiana, in a case
contesting
the inmates' right to vote, upheld this right and the
right
of Congress to retrocede jurisdiction. An additional such
retrocession
statute, involving a home in Kansas, was enacted in
1901.
Construction of retrocession
statutes.--It has been held that
statutes
retroceding jurisdiction to a State must be strictly
construed. This view was not followed, on the other hand,
in Offutt
Housing
Company v. Sarpy County, 351 U.S. 253 (1956).
There, the
Supreme
Courts said (p. 260):
* * * We could regard Art. I, Sec. 8, cl. 17 as of such
overriding and comprehensive scope that
consent by Congress to
state taxation of obviously valuable
private interests located
in an area subject to the power of
"exclusive Legislation" is
to be found only in explicit and
unambiguous legislative
enactment. We have not here-
89
tofore so regarded it, see S.R.A., Inc.
v. Minnesota, 327 U.S.
558; Baltimore Shipbuilding Co. v.
Baltimore, 195 U.S. 375, nor
are we constrained by reason to treat
this exercise by Congress
of the "exclusive Legislation" power
and the manner of
construing it any differently from any
other exercise by
Congress of that power. This is one of those cases in which
Congress has seen fit not to express
itself unequivocally. It
has preferred to use general language and
thereby requires the
judiciary to apply this general language
to a specific problem.
To that end we must resort to whatever
aids to interpretation
the legislation in its entirety and its
history provide.
Charged as we are with this function, we
have concluded that the
more persuasive construction of the
statute, however flickering
and feeble the light afforded for
extracting its meaning, is
that the States were to be permitted to
tax private interests,
like those of this petitioner, in housing
projects located on
areas subject to the federal power of
"exclusive Legislation."
We do not hold that Congress has
relinquished its power over
these areas. We hold only that Congress, in the exercise of its
power, has permitted such state taxation
as is involved in the
present case.
It is difficult to follow the reasoning
in the Offutt case that
the
Congress did not relinquish the Federal power of "exclusive
Legislation"
over the areas involved, but merely permitted State
taxation,
since imposition of taxes requires "jurisdiction" in the
State
over the subject matter, aside from any "consent" of the
Federal
Government, as will be more fully developed hereinafter.
SUMMARY OF RETROCESSION STATUTES: Retrocessions few.--There
have
been relatively few instances, however, in which the federal
Government
has retroceded all legislative jurisdiction over an area
that is
normally exercised by a State. The
90
instances
mentioned below are all which were found in a diligent
search
of Federal statutes.
Statutes enacted to afford civil rights
to inhabitants of
Federal
enclaves.--One of the earliest retrocession statutes enacted
by the Congress
of the United States involved a portion of the
District
of Columbia. The seat of the general
government had been
established
on territory received in part from the State of Maryland
and in
part from the State of Virginia, embracing the maximum ten
miles
square permitted by clause 17. By the
act of February 27,
1801, 2
Stat. 103, that portion of the District of Columbia which had
been
ceded by Maryland was designated the county of Washington, and
that
portion which had been ceded by Virginia was denominated the
county
of Alexandria. A report on the bill
providing for
retrocession
to Virginia of Alexandria County stated:
* * * The people of the county and town
of Alexandria have been
subjected not only to their full share of
those evils which
affect the District generally, but they
have enjoyed none of
those benefits which serve to mitigate
their disadvantages in
the county of Washington. The advantages which flow from the
location of the seat of government are almost
entirely confined
to the latter county, whose people, as
far as your committee are
advised, are entirely content to remain
under the exclusive
legislation of Congress. But the people of the county and town
of Alexandria, who enjoy few of those
advantages, are (as your
committee believe) justly impatient of a
state of things which
subjects them not only to all the evils
of inefficient
legislation, but also to political
disfranchisement. To enlarge
on the immense value of the elective
franchise would be
unnecessary before an American Congress,
or in the present state
of public opinion. The condition of
91
thousands of our fellow-citizens who,
without any equivalent,
(if equivalent there could be,) are thus
denied a vote in the
local or general legislation by which
they are governed, who, to
a great extent, are under the operation
of old English and
Virginia statutes, long since repealed in
the counties where
they originated, ad whose, sons are cut
off from many of the
most highly valued privileges of life,
except upon the condition
of leaving the soil of their birth, is
such as most deeply move
the sympathies of those who enjoy those
rights themselves, and
regard them as inestimable. * * *
It has been noted that other statutes,
the acts of January 21,
1871,
16 Stat. 399, July 7, 1898, 30 Stat. 668, and March 3, 1901, 31
Stat. 1175,
were thereafter enacted by the Congress in concern over
voting
rights. During the debate on the
Congress in concern over
voting
rights. During the debate on the 1871
bill much was said, pro
and
con, concerning the "right" of the inhabitants of the disabled
soldiers'
home to vote.
Other statutes of "special"
application have been passed which
involved
additional fields of civil rights. One
such statute is the
act of
March 4, 1921. During World War I the
United States Housing
Corporation
acquired exclusive jurisdiction over a site on which a
town
was to be built for the purpose of housing Government employees.
After
the war, according to the report which accompanied the bill to
the
House of Representatives, the Federal Government desired:
* * * that the property [jurisdiction] be
retroceded to the
State of Virginia in order that that
State may exercise
political power, so that taxes may be
levied and the town may be
incorporated. As it is now, the town of Cradock, consisting of
2,000 people, is without the protection
of any civil government,
as the National Government is no longer
in charge there.
92
The
bill passed both the Senate and House without discussion or
debate.
Another statute of "special" application which deals with the
problem
of normal civil rights for inhabitants of Federal enclaves
is the
act of March 4, 1949, known as the Los Alamos Retrocession
Bill. Identical bills were introduced in the House
and Senate to
cover
the problems arising at the Atomic Energy Commission area at
Los
Alamos. The House bill was finally
enacted. The following
extract
from the Senate report on the bill indicates the problems
desired
to be eliminated by the legislation:
The need for establishing uniformity of
jurisdiction in the
administration of civil functions of the
Los Alamos area, and
the further need for assuring the people
of the area the right
of franchise and the right to be heard in
the courts of New
Mexico, was emphasized by two recent decisions of the Supreme
Court of the State of New Mexico. These decisions declared that
those persons residing on territory
subject to exclusive Federal
jurisdiction are not citizens of the
State of New Mexico and,
therefore, have neither the right to vote
nor the right to sue
in courts of that State for divorce. However, under an act of
Congress approved October 9, 1940 (Buck
Act), the State of New
Mexico is authorized to require such
noncitizens to pay sales,
use, and income taxes just as do those
persons enjoying full
State citizenship.
The effect of this bill will be to remove
disabilities inherent
in the noncitizen status of persons
residing on the areas now
under exclusive Federal
jurisdiction. It will give them the
same rights and privileges which those
persons residing on lands
at Los Alamos under State jurisdiction
now enjoy. It will give
them the right to
93
vote in State and Federal elections. It will give them the
right to have full effect given to their
wills and to have their
estates administered. It will give them rights to adopt
children, to secure valid divorces in appropriate
cases, and to
secure licenses to enjoy the land for
hunting and fishing.
The Atomic Energy Act of 1954 included a
section which similarly
retroceded
jurisdiction over Atomic Energy Commission land at Sandia
Base,
Albuquerque, to the State of New Mexico.
Statutes enacted to give State or local
governments authority
for
policing highways.--These statutes may be divided into two
groupings,
"general" and "special."
There are two in the "general"
category,
one authorizing the Attorney General, and the other the
Administrator
of Veterans' Affairs, in very similar language, to
grant
to States or political subdivisions of States easements in or
rights-of-way
over lands under the supervision of the Federal officer
granted
the power, and to cede to the receiving State partial,
concurrent,
or exclusive jurisdiction over he area involved in the
grant. Both these statutes, it is indicated by
information in
official
records, were enacted to resolve problems arising out of the
desirability
of State, rather than Federal, policing of highways.
Efforts
of the Department of Defense to acquire authority similar to
that
given by these statutes to the Attorney General and the
Administrator
of Veterans' Affairs have not been successful to this
time,
notwithstanding that apparently all the "special" statutes
enacted
to provide State authority for policing highways have
involved
military installations.
94
The first of the statutes of
"special" application in the field
of
jurisdiction over highways concerned the Golden Gate Bridge and
the
California State highways, which crossed the Presidio of San
Francisco
Military Reservation and the Fort Baker Military
Reservation. On February 13, 1931, the Secretary of War,
exercising
a
congressional delegation of authority, granted to the Golden Gate
Bridge
and Highway District of California certain rights-of-way to
extend,
maintain and operate State roads across these military
reservations. The grant from the Secretary of War was
subject to the
condition
that the State of California would assume responsibility
for
managing, controlling, policing and regulating traffic. A
subsequent
statute retroceded to the State of California the
jurisdiction
necessary for the State to carry out its responsibility
for
policing the highways.
The next statute related to another
approach to the Golden Gate
Bridge. Statutes enacted thereafter have related to
highways
occupying
areas at Vancouver Barracks Military Reservation,
Washington,
Fort Devens Military Reservation, Massachusetts, Fort
Bragg,
North Carolina, Fort Sill, Oklahoma, Fort Belvoir, Virginia,
and
Wright-Patterson Air Force Base, Ohio.
95
Miscellaneous statutes retroceding
jurisdiction.--Six statutes
appear
to have been enacted by the Federal Government retroceding
jurisdiction
for reasons not demonstrably connected with civil rights
of
inhabitants or State policing of highways. The first of these in
point
of time was enacted in 1869, to permit the State of Vermont to
exercise
jurisdiction over a State court building which was permitted
to be
constructed on federally owned land. A
1914 statute
temporarily
retroceded to the State of California jurisdiction over
portions
of the Presidio of San Francisco and Fort Mason, so that
city
and State authorities could police these areas during a period
when
the Panama-Pacific International Exposition was to be held
thereon.
A 1927 statute ceded to the Commonwealth
of Virginia
jurisdiction
over an area known as Battery Cove, for the purpose of
transferring
from Federal to Virginia officials authority to police
the
area. The cove, which was on the
Potomac River abutting
Virginia,
had been transformed into dry land during dredging
operations
in the Potomac. It was part of the
territory originally
ceded
to the United States by Maryland for the seat of government. In
1939,
the Congress enacted a statute retroceding to the Commonwealth
of
Massachusetts jurisdiction over a bridge in Springfield. The
reason
for this retrocession was that, while
96
the
bridge spanned a pond located on territory over which the United
States exercised
exclusive legislative jurisdiction, both ends of the
bridge
were located on land controlled by the city.
In 1945, long existing disputes and
confusion over the boundary
line
between the District of Columbia and the Commonwealth of
Virginia
led to the enactment of a statute by the Federal Government
ceding
concurrent jurisdiction to the Commonwealth over territory to
a line
fixed as a boundary.
The only remaining instance found of the
Federal enactment of a
retrocession
statute for a miscellaneous purpose relates to the Chain
of
Rocks Canal in Madison County, Wisconsin.
That statute was
enacted,
it seems, simply because the United States had no further
requirement
for jurisdiction over the area involved.
REVERSION OF JURISDICTION UNDER TERMS OF
STATE CESSION STATUTE:
In
general.--Most State statutes providing for cession of legislative
jurisdiction
to the United States further provide for reversion of
the
ceded jurisdiction to the State upon termination of Federal
ownership
of the property. Some of these, and
other State statutes,
contain
various provisions otherwise limiting the duration of Federal
exercise
of ceded jurisdiction. The Attorney
General has since an
early
date approved such limitations.
Leading cases.--In two important Federal
court cases
consideration
was given to the effect of provisions in a State
cession
statute that the legislative jurisdiction transferred by such
statute
to the Federal Government shall cease or revert
97
to the
State upon the occurrence of the conditions specified in the
statute. In each of these cases, the legal validity
of such
provision
was fully sustained although in one instance the Supreme
Court
indicated that Federal legislative jurisdiction might merely be
"suspended"
while the circumstances specified in the State statute
prevailed.
In Crook, Horner & Co. v. Old Point
Comfort Hotel Co., et al.,
54 Fed.
604 (C.C.E.D.Va., 1893), the court gave effect to the
provisions
in a Virginia cession statute that legislative
jurisdiction
diction shall exist in the United States only so long as
the
area is used for fortifications and other objects of national
defense,
and that such jurisdiction shall revert to Virginia in the
event
the property is abandoned or used for some purpose not
specified
in the Virginia cession statute.
In Palmer v. Barrett, 162 U.S. 399
(1896), New York had ceded to
the
United States jurisdiction over the Brooklyn Navy Yard subject to
the
condition that it be used for a navy yard and hospital purposes.
Part of
the area in question was subsequently leased to the city of
Brooklyn
for use by market wagons. The lease was
terminable by the
United
States on thirty days' notice; it provided that the city of
Brooklyn
would patrol the premises, that no permanent buildings would
be
erected on the premises, and that during the period of the lease
the
water tax for water consumed by the Navy Yard would be reduced to
that
charged to manufacturing establishments in Brooklyn. The
plaintiff
brought suit in the State courts to recover damages for his
alleged
unlawful ouster from two market stands which had been in his
possession. One of the defenses was that the State court
had no
jurisdiction. The United States Supreme Court disposed of
this
contention
as follows (p. 403):
98
* * * The power of the State to impose
this condition [that the
land be used for purposes of a navy yard
and hospital] is clear.
In speaking of a condition placed by the
State of Kansas on a
cession of jurisdiction made by that
State to the United States
over land held by the United States for
the purposes of a
military reservation, this court said in
Fort Leavenworth
Railroad v. Lowe, (p. 539), supra:
"It not being a case where
exclusive legislative authority is vested
by the Constitution of
the United States, that cession could be
accompanied with such
conditions as the State might see fit to
annex, not inconsistent
with the free and effective use of the
fort as a military post."
As to
the question of jurisdiction, the court said (p. 404):
* * * In the absence of any proof to the
contrary, it is to be
considered that the lease was valid, and
that both parties to it
received the benefits stipulated in the
contract. This being
true, the case then presents the very
contingency contemplated
by the act of cession, that is, the
exclusion from the
jurisdiction of the United States of such
portion of the ceded
land not used for the governmental
purposes of the United States
had been free from condition or
limitation, the land should be
treated and considered as within the e
jurisdiction of the
United States, it is clear that under the
circumstances here
existing, in view of the reservation made
by the State of New
York in the act ceding jurisdiction, the
exclusive authority of
the United States over the land covered
by the lease was at
least suspended whilst the lease remained
in force.
Had the
Federal Government, instead of leasing the property to the
city of
Brooklyn on a short-term lease, devoted it to Federal
purposes
other than those specified in the New York cession statute,
legislative
jurisdiction would presumably have
99
reverted
to the State of New York Although the
court in the case
before
it spoke of the suspension of jurisdiction, instead of
termination
of jurisdiction, it presumably took into account the fact
that the
lease was of short duration and that there was no evidence
that
the Federal Government had abandoned all plans for the future
use of
the leased area for the purposes
specified in the New York
statute. It must be assumed that a permanent
reversion, instead of a
temporary
suspension, of Federal legislative jurisdiction would occur
where
the evidence indicates that it is no longer the intention of
the
Federal Government to use the property for the purposes specified
in the
State cession statute.
REVERSION OF JURISDICTION BY TERMINATION
OF FEDERAL USE OF
PROPERTY:
Doctrine announced.--In the case of Fort Leavenworth R.R.
v.
Lowe, U.S. 525 (1885), when considering a cession statute which
did not
contain a reverter provision the court nevertheless said of
the
ceded jurisdiction (p. 542):
* * * It is necessarily temporary, to be
exercised only so long
as the places continue to be used for the
public purposes for
which the property was acquired or
reserved from sale. When
they cease to be thus used, the
jurisdiction reverts to the
State.
Discussion of doctrine.--Only in one
case, however, has the
Supreme
Court concluded that reversion for such reasons had occurred.
In
S.R.A., Inc v. Minnesota, 327 U.S. 558 (1946), the question
presented
was whether the State of Minnesota had jurisdiction to tax
realty
sold by the United States to a private party under an
installment
contract, the tax being assessed "subject to fee title
remaining
in the United States," where such realty had been purchased
by the
United States with the consent of the State.
After stating
that a
State must have jurisdiction in order to tax, the court said
(pp.
563-564):
100
In this instance there were no specific
words in the contract
with petitioner which were intended to
retain sovereignty in the
United States. There was no express retrocession by Congress to
Minnesota, such as sometimes occurs. There was no requirement
in the act of cession for return of
sovereignty to the State
when the ceded territory was no longer
used for federal
purposes. In the absence of some such provisions, a transfer of
property held by the United States under
state cessions pursuant
to Article I, Sec. 8, Clause 17, of the
Constitution would leave
numerous isolated islands of federal
jurisdiction, unless the
unrestricted transfer of the property to
private hands is
thought without more to revest
sovereignty in the States. As the
purpose of Clause 17 was to give control
over the sites of
governmental operations to the United
States, when such control
was deemed essential for federal
activities, it would seem that
the sovereignty of the United States
would end with the reason
for its existence and the disposition of
the property. We shall
treat this case as though the
Government's unrestricted transfer
of property to nonfederal hands is a
relinquishment of the
exclusive legislative power. Recognition has been given to this
result as a rule of necessity. If such a step is necessary,
Minnesota showed its acceptance of a
supposed retrocession by
its levy of a tax on the property. Under these assumptions the
existence of territorial jurisdiction in Minnesota so as to
permit state taxation depends upon whether there was a transfer
of the property by the contract of sale.
The
court concluded that under its contract of sale with the United
States,
the vendee acquired the equitable title to the land, and that
therefore
the Federal legislative jurisdiction over the property
reverted
to the State.
101
Of interest in the above-quoted excerpt from
the Supreme Court's
opinion
is the reference to the State's acceptance of the reversion
of
legislative jurisdiction. As has been
indicated in the preceding
chapter,
the consent of the State and Federal Government is
ordinarily
essential to effect transfers of legislative jurisdiction
from
one to the other. However, where--as is
suggested in the S.R.A.
opinion--the
termination of federal ownership and use of the property
results
in a termination of Federal legislative jurisdiction, it
would
seem that to add to this rule a proviso that a State must
accept
such jurisdiction would result, in the event of a State's
refusal
to accept the reversion, either in the continuance of Federal
legislative
jurisdiction over an area not owned or used by the
Federal
Government, or in the creation of a "no-man's land" over
which
neither the Federal Government nor the State has jurisdiction.
It
seems highly doubtful in view of these practical results, and
barring
special circumstances, that the State's acceptance is
essential. Moreover, in the S.R.A. opinion, the court
seemed to
imply
that the termination of federal legislative jurisdiction over
an area
no longer owned or used by the Federal Government rests o
constitutional
principles. If so, Federal legislative
jurisdiction
over
such area would appear to revert to the State irrespective of
the
latter's wishes in the matter. In any
event the Congress could,
for
example, expressly provide for reversion of jurisdiction to the
State upon
cessation of Federal ownership of property, although the
S.R.A.
decision would seem to make such express provision
unnecessary.
102
An early Federal statute granting
authority for the sale of
surplus
military sites contained a provision that upon sale of any
such
site jurisdiction thereover which had been ceded to the Federal
Government
by a State was to cease. The statute
made no provision
for
State acceptance of the retrocession.
The modern counterpart of
this
statute, providing for disposition of surplus Federal property,
makes
no reference whatever to termination of jurisdiction had by the
United
States over property disposed of thereunder, but the General
Services
Administration, which administers the existing statute, has
no
information of any exception to full acceptance by agencies of the
Federal
and State governments of the theory that all jurisdiction
reverts
to the State upon Federal disposition of real property under
this
statute. While the case of S.R.A., Inc. v. Minnesota, supra, is
the
only case in which the Supreme Court concluded that on the facts
presented
Federal legislative jurisdiction reverted to the State, the
court
in several earlier cases indicated that changed circumstances
might
result in a reversion of legislative jurisdiction. In Benson
v.
United States, 146 U.S. 325 (1892), the intervening factor was an
action
of the Executive branch. In that case
it was contended that
jurisdiction
passed to the United States only over such portions of
the
military reservation as were actually used for military purposes,
and
that the United States therefore had no jurisdiction over a
homicide
which was committed on a part of the reservation used for
farming
purposes. In rejecting this contention, the court said (p.
331):
* * * But in matters of that kind the
courts follow the action
of the political department of the
government. The entire tract
had been legally reserved for military
purposes. * * * The
character and purposes of its occupation
having been officially
and legally established
103
by that branch of the government which
has control over such
matters, it is not open to the courts, on a question of
jurisdiction, to inquire what may be the
actual uses to which
any portion of the reserve is temporarily
put. * * *
The
views expressed by the court in the Benson case, which presumably
would
be applicable to a retrocession as well as a cession, narrow
substantially
the rule as stated in the excerpt from the Fort
Leavenworth
case quoted earlier in this chapter.
The Bernson case was followed in
Arlington Hotel Co. v. Fant,
278
U.S. 439 (1929), in overruling an argument that jurisdiction was
not
lodged in the United States over an area leased to a private
hotel
operator within a reservation over which jurisdiction had been
ceded
to the United States, and it was again followed in the case of
United States
v. Unzeuta, 281 U.S. 138 (1930), where the Federal
Government
was held to have jurisdiction over an area (on which a
crime
had been committed) constitution a right-of-way over a Federal
enclave. The same rule has been applied in other
case.
The reluctance of the court to ignore
jurisdiction
determinations
by the Executive branch is further illustrated by its
opinion
in Phillips v. Payne, 92 U.S. 130 (1876), in which was
presented
the question of the legal validity of the retrocession by
the Federal
Government to Virginia of that portion of the District of
Columbia
which had previously been ceded by Virginia to the Federal
Government. In the course of its opinion, the court
stated (p. 131)
the
position of the plaintiff in error that the Federal legislative
procedures
leading to the
104
retrocession
were "in violation of the Constitution" but it held that
(p.
134):
The plaintiff in error is estopped from
raising the point which
he seeks to have decided. He cannot, under the circumstances,
vicariously raise a question, nor force
upon the parties [i.e.,
the Federal Government and Virginia] to
the compact an issue
which neither of them desires to make.
In this litigation we are constrained to
regard the de facto
condition of things which exists with
reference to the county of
Alexandria as conclusive of the rights of
the parties before us.
The position taken by the court in the
Benson, Arlington Hotel,
Unzeuta,
and Phillips cases suggests that the rule announced in the
Fort
Leavenworth case would not apply in any situation in which the
Executive
branch has indicated that the area involved, thought
presently
used for non-Federal purposes, is intended to be used for
Federal
purposes. Where, of course, a condition
in a State cession
or
consent statute pursuant to which legislative jurisdiction was
obtained
by the Federal Government provides that jurisdiction shall
revert
to the State if the areas, or any portion of it, is used, even
temporarily,
for purposes other than those specified in the State
consent
or cession statute, full effect would be given to such
condition.
Absent such express condition in the State consent or
cession
statute, it seems probable that the courts would conclude
that
Federal legislative jurisdiction has terminated only upon a
clear
showing that the area is not only not being used for the
purposes
for which it was acquired but also that there appears to be
no plan
to use it for such purpose in the future.
CHAPTER V
CRIMINAL
JURISDICTION
RIGHT OF DEFINING AND PUNISHING FOR
CRIMES: Exclusive Federal
jurisdiction.--Areas
over which the Federal Government has acquired
exclusive
legislative jurisdiction are subject to the exclusive
criminal
jurisdiction of the United States.
Bowen v. Johnston, 306
U.S.19
(1939); United States v. Watkins, 22 F.2d 437 (N.D.Cal 1927).
That
the States can neither define nor punish for crimes in such
areas
is made clear in the
105
106
case of
In re Ladd, 74 Fed. 31 (C.C.N.D.Neb., 1896), (p. 40):
* * * The cession of jurisdiction over a
given territory takes
the latter from within, and places it
without, the jurisdiction
of the ceding sovereignty. After a state has parted with its
political jurisdiction over a given tract
of land, it cannot be
said that acts done thereon are against
the peace and dignity of
the state, or are violations of its laws;
and the state
certainly cannot claim jurisdiction
criminally be reason of acts
done at place beyond,or not within, its
territorial
jurisdiction, unless by treaty or statute
it may have retained
jurisdiction over its own citizens, and
even then the
jurisdiction is only over the person as a
citizen. * * *
The
criminal jurisdiction of the Federal Government extends to
private
land over which legislative jurisdiction has been vested in
the
Government, as well as to federally owned lands. United States
v.
Unzenuta, supra; see also Petersen v. United States, 191 F.2d
154
(C.A. 9, 1951), cert.den., 342 U.S. 885.
Indeed, the Federal
Government's
power derived from exclusive legislative jurisdiction
over an
area may extend beyond
107
the
boundaries of the area, as may be necessary to make exercise of
the
Government's jurisdiction effective; thus, the Federal
Government
may punish a person not in the exclusive jurisdiction
area
for concealment of his knowledge concerning the commission of
a
felony within the area. Cohens v.
Virginia, 6 Wheat. 264, 426-
429
(1821).
In Hollister v. United States, 145 Fed.
773 (C.A. 8, 1906), the
court
said (p. 777):
Instances of relinquishment and
acceptance of criminal
jurisdiction by state Legislatures and
the national Congress,
respectively, over forts, arsenals,
public buildings, and other
property of the United States situated
within the states, are
common, and their legality has never, so
far as we know, been
questioned.
On the other hand, while the Federal
Government has power
under
various provisions of the Constitution to define, and
prohibit
as criminal, certain acts or omissions occurring anywhere
in the
United States, it has no power to punish for various other
crimes,
jurisdiction over which is retained by the States under our
Federal-State
system of government, unless such crimes occur on
areas
as to which legislative jurisdiction has been vested in the
Federal
Government. The absence of jurisdiction
in a State, or
in the
Federal Government, over a criminal act occurring in an area
as to
which only the other of these governments has legislative
jurisdiction
is demonstrated by the case of United States v. Tully,
140
Fed. 899 (C.C.D.Mont.,
108
1905). Tully had been convicted by a State court in
Montana of
first
degree murder, and sentenced to be hanged.
The Supreme Court
of the
State reversed the conviction on the ground that the
homicide
had occurred on a military reservation over which
exclusive
jurisdiction was vested in the Federal Government. The
defendant
was promptly indicted in the Federal court, but went free
as the
result of a finding that the Federal Government did not have
legislative
jurisdiction over the particular land on which the
homicide
had occurred. The Federal court said
(id. p. 905):
It is unfortunate that a murderer should go unwhipped of
justice, but it would be yet more
unfortunate if any court
should assume to try one charged with a
crime without
jurisdiction over the offense. In this case, in the light of
the verdict of the jury in the state court, we may assume that
justice would be done the defendant were
he tried and convicted
by any court and executed pursuant to its
judgment. But in this
court it would be the justice of the vigilance
committee wholly
without the pale of the law. The fact
that the defendant is
to be discharged may furnish a text for
the thoughtless or
uninformed to say that a murderer has
been turned loose upon a
technicality; but this is not a
technicality. It goes to the
very right to sit in judgment. * * *
These sentiments no doubt
appealed with equal force to the Supreme
Court of Montana, and
it is to its credit that it refused to
lend its aid to the
execution of one for the commission of an
act which, in its
judgment, was not cognizable under the
laws of its state; but I
cannot being myself to the conclusion
reached by that able
court, and it is upon the judgment and
conscience of this court
that the matter of jurisdiction here must
be decided.
The
United States and each State are in many respects separate
sovereigns,
and ordinarily one cannot enforce the laws of the
other.
109
State and local police have no authority
to enter an exclusive
Federal
area to make investigations, or arrests, for crimes
committed
within such areas since Federal, not State, offenses are
involved. Only Federal law enforcement officials, such
as
representatives
of the Federal Bureau of Investigation and United
States
marshals and their deputies, would be authorized to
investigate
such offenses and make arrests in connection with them.
The
policing of Federal exclusive jurisdiction areas must be
accomplished
by Federal personnel, and an offer of a municipality
to
police a portion of a road on such an area could not be accepted
by the
Federal official in charge of the area, as police
protection
by a municipality to such an area would be inconsistent
with
Federal exclusive jurisdiction.
Concurrent Federal and State criminal
jurisdiction.--There
are, of
course, Federal areas as to which a State, in ceding
legislative
jurisdiction to the United States, has reserved some
measure
of jurisdiction, including criminal jurisdiction,
concurrently
to itself. In general, where a crime
has been
committed
in an areas over which the Untied States and a State have
concurrent
criminal jurisdiction, both governments may try the
accused
without violating the double jeopardy clause of the Fifth
Amendment. Grafton v. United States, 206 U.S.
110
333
(1907), held that the same acts constituting a crime cannot,
after a
defendant's acquittal or conviction in a court of competent
jurisdiction
of the Federal Government, be made the basis of a
second
trial of the defendant for that crime in the same or in
another
court, civil or military, of the same government. However,
where
the same act is a crime under both State and Federal law, the
defendant
may be punished under each of them.
Hebert v. Louisiana,
272
U.S. 312 (1926). It was stated by the
court in United
States
v. Lanza, 260 U.S. 377 (1922), (p. 382):
It follows that an act denounced as a
crime by both national and
state sovereignties is an offence against
the peace and dignity
of both and may be punished by each. The Fifth Amendment, like
all the other guaranties in the first
eight amendments, applies
only to proceedings by the Federal
Government, Barron v.
Baltimore, 7 Pet. 243, and the double
jeopardy therein forbidden
is a second prosecution under authority
of the Federal
Government after a first trial for the
same offense under the
same authority. * * *
It is well settled, of course, that where
two tribunals have
concurrent
jurisdiction that which first takes cognizance of a
matter
has the right, in general, to retain it to a conclusion, to
the
exclusion of the other. The rule seems
well stated in Mail v.
Maxwell,
107 Ill. 554 (1883),(p. 561):
Where one court has acquired
jurisdiction, no other court, State
or Federal, will, in the absence of
supervising or appellate
jurisdiction, interfere, unless in
pursuance of some statute,
State or Federal, providing for such interference.
111
Other
courts have held similarly. There
appears to be some
doubt
concerning the status of a court-martial as a court, within
the
meaning of the Judicial Code, however.
Law enforcement on areas of exclusive or
concurrent
jurisdiction.--The
General Services Administration is authorized by
statute
to appoint its uniformed guards as special policemen, with
the
same powers as sheriffs and constables to enforce Federal laws
enacted
for the protection of persons and property, and to prevent
beaches
of the peace, to suppress affrays or unlawful assemblies, and
to
enforce rules made by the General Services Administration for
properties
under its jurisdiction; but the policing powers of such
special
policemen are restricted to Federal property over which the
United
States has acquired exclusive or concurrent jurisdiction.
Upon
the application of the head of any Federal department or agency
having
property of the United States under its administration or
control
and over which the United States has exclusive or concurrent
jurisdiction,
the General Services Administration is authorized by
statute
to detail any such special policeman for the protection of
such
property and, if it is deemed desirable, to extend to such
property
the applicability of regulations governing property
promulgated
by the General Services Administration.
The General
Services
Administration is authorized by the same statute to utilize
the
facilities of existing Federal law-enforcement agencies, and,
with
the consent of any State or local agency, the facilities and
services
of such State or local law enforcement agencies.
Although the Department of the Interior
required protection for
an
installation housing important secret work, the General
112
Services
Administration was without authority to place uniformed
guards
on the premises in the absence in the United States of
exclusive
or concurrent jurisdiction over the property, and
notwithstanding
the impropriety of permitting the policing of the
property
by local officials, if they were willing, without
necessary
security clearances.
Civilian Federal employees may be
assigned to guard duty on
Federal
installations, but there is no Federal statue (other than
that
appertaining to General Services Administration and three
statutes
of even less effect--16 U.S.C. 559 (Forest Service), and 16
U.S.C.
10 and 10a (National Park Service)) conferring any special
authority
on such guards. They are not peace
officers with the usual
powers
of arrest; and have no greater powers of arrest than private
citizens. As citizens, they may protect their own
lives and property
and the
safety of others, and as agents of the Government they have a
special
right to protest the property of the Government. For both
these
purposes they may bear arms irrespective of State law against
bearing
arms. Such guards, unless appointed as
deputy sheriffs
(where
the State has at least concurrent criminal jurisdiction), or
deputy
marshals (where the United States has at least concurrent
criminal
jurisdiction), have no
113
more authority
than other private individuals so far as making
arrests
is concerned.
State and local officers may, by special
Federal statute,
preserve
the peace and make arrests for crimes under the laws of
States,
upon immigrant stations, and the jurisdiction of such
officers
and of State and local courts has been extended to such
stations
for the purposes of the statute.
Partial jurisdiction.--In some instances
States in granting to
the
Federal Government a measure of exclusive legislative
jurisdiction
over an area have reserved the right to exercise, only
by
themselves, or concurrently by themselves as well as by the
Federal
Government, criminal jurisdiction over the area. In
instances
of complete State retention of criminal jurisdiction,
whether
with respect to all matters or with respect to a
specified
category of matters, the rights of the States, of the
United
States, and of any defendants, with respect to crimes as to
which
State jurisdiction is so retained are as indicated in this
chapter
for areas as to which the Federal Government has no
criminal
jurisdiction. In instances of
concurrent State and
Federal
criminal jurisdiction with respect to any matters the
rights
of all parties are, of course, determined with respect to
such
matters according to the rules of law generally applicable in
areas
of concurrent jurisdiction.
Accordingly, there is no
114
body of
law specially applicable to criminal activities in areas
under the
partial legislative jurisdiction of the United States.
State criminal jurisdiction
retained.--State criminal
jurisdiction
extends into areas owned or occupied by the Federal
Government,
but as to which the Government has not acquired
exclusive
legislative jurisdiction with respect to crimes. And
as to
many areas owned by the Federal Government for its various
purposes
it has not acquired legislative jurisdiction.
The
Forest
service of the Department of Agriculture, for example, in
accordance
with a provision of Federal law (16 U.S.C. 480), has not
accepted
the jurisdiction proffered by the statutes of many States,
and the
vast majority of Federal forest lands are held by the
Federal
Government in a proprietorial status only.
The Federal Government may not prosecute
for ordinary crimes
committed
in such areas. Federal civilians who
may
115
be
appointed as guards in the areas do not have police powers, but
possess
only the powers of arrest normally had by any citizen
unless
they receive appointments as State or local police
officers.
Acts committed partly in area under State
jurisdiction.--Where
a crime
has been in part committed in a Federal exclusive
legislative
jurisdiction area, the States in some instances have
asserted
jurisdiction. It was held in
Commonwealth v. Rohrer,
37Pa.
D. and C. 410 (1937), that a dealer furnishing milk for use
at a
veterans' hospital was subject to the provisions of the Milk
Control
Board Law. The court was of the opinion
that while the
State
had no jurisdiction with respect to a crime committed wholly
within
the area over which legislative jurisdiction had been ceded
to the
Federal Government for the hospital, it did have
jurisdiction
of a crime the essential elements of which were
committed
within the State, even though other elements thereof were
committed
within the ceded territory. Two more
recent decisions of
the
Supreme Court (i.e., Penn Dairies, Inc., et al. v. Milk Control
Commission
of Pennsylvania, 318 U.S. 261 (1943), and Pacific Coast
Dairy,
Inc. v. Department of Agriculture of California, 318 U.S.
285
(1943)) suggest that only where the federal Government does not
have
exclusive legislative jurisdiction would a State have such
authority. It has been held, however, that even where
acts are
done
wholly on Federal property, a State property, a State
prosecution
is proper where the effects of the acts are felt in an
area
under State jurisdiction. People v.
Commonwealth Sanitation
Co.,
1007 N.Y.S.2d 982 (1951); cf. State v. Kelly, 76 Me. 331
(1884).
On the other hand, transportation through
a State for delivery
to an
area, within the boundaries of the State, which is
116
under the
exclusive jurisdiction of the United States has been held
not to
be a violation of laws prohibiting the importation into the
State
of the matter transported.
Retrial on change in jurisdiction.--Where
a person is
convicted
of a crime in a State court and the territory in which
the
crime was committed is subsequently ceded to the United States,
he may
be properly retried or sentenced in the State court, it was
held in
Commonwealth v. Vaughn, 64 Pa. D & C. 320 (1948). The
court
said (p. 322):
* * * The act when done was a violation
of the law of this
Commonwealth which is still in full force
and effect, done
within its territorial jurisdiction; the
Commonwealth had
jurisdiction of the subject matter and
obtained jurisdiction of
the person by proper process, and its proper officer proceeded
with legal action in the proper court,
which court has never
relinquished its jurisdiction, so
obtained. * * * When the
jurisdiction of a court has legally and
properly attached to the
person and subject matter in a legal
proceeding, such
jurisdiction continues until the cause is
fully an completely
disposed of * * *.
The
court points out that if the subject matter (in this case, the
crime)
is wiped out the court loses its jurisdiction.
The crime
would
no longer exist and no one can be punished for a crime which
does
not exist at time of trial therefor, or of meting out
punishment.
SERVICE OF STATE CRIMINAL PROCESS: In
general.--That State
criminal
process may extend into areas owned or occupied by the
United
States but not under its legislative jurisdiction is well set
out in
the case of Cockburn v. Willman, 301 Mo. 575, 257 S.W. 458
(1923),
(p. 587):
117
The mere fact that he was territorial
within the confines of a
Government reservation at the time the
warrant was served upon
him did not render him immunity exists
only when it appears in
the cession by the State to the National
Government that the
former has divested itself of all power
over the place or
territory in regard to the execution of
process or the arrest
and detention of persons found thereon
who are charged with
crime.
Right by Federal grant.--The immunity of
persons in areas
under
the exclusive jurisdiction of the federal Government from
service
upon them of State process occasioned great concern at the
constitutional
ratifying conventions that such areas might become
havens
for felons. At an early date, Congress
provided that
in
lighthouse and certain related areas criminal and civil process
might
be served by the States notwithstanding the acquisition of
exclusive
jurisdiction by the Federal Government over such sites.
Right by State reservation.--States have
commonly included in
their
consent and cession statutes a reservation of the power to
serve
civil and criminal process in the areas to which such
statutes
relate, and all such State statutes which are currently in
effect contain
such reservations. The words of
reservation
vary,
but usually are contained in a clause following the cession
language
and are worded approximately as follows:
* * * this state, however, reserving the
right to execute
118
its process, both criminal and civil,
within such territory.
Reservations to serve process not
inconsistent with exclusive
jurisdiction.--The
reservation by a State of the right to serve
criminal
and civil process in an area over which such Federal
jurisdiction
exists is not, however, inconsistent with the exercise
by the
Federal Government of exclusive jurisdiction over the area,
and a
State does not by such a reservation acquire jurisdiction to
punish
for a crime committed within a ceded area.
United States v.
Travers,
28 Fed. Cas. 204, No. 16,537 (C.C.D.Mass., 1814); United
States
v. Davis, 25 Fed. cas. 646, No. 14,867 (C.C.D.R.I.,
1819). Indeed, it has been said that process served
under a
reservation
becomes, quo ad hoc, process of the United States,
and
that when a State officer acts to execute process on a Federal
enclave
he acts under the authority of the United States, but
these
statements appear inconsistent with the generally prevailing
view of
reservations to serve process as retention by the State of
its
sovereign authority. Even, as is often
the case, where a State
retains
"concurrent jurisdiction," to serve civil
119
and
criminal process, or the right to serve such process as if
jurisdiction
over lands "had not been ceded," the quoted words have
been
construed not to give the State jurisdiction to punish persons
for
offenses committed within the ceded territory.
United States
v.
Cornell, 25 Fed. Cas. 646, No. 14,867 (C.C.D.R.I., 1819); Lasher
v.
State, 30 Tex. Cr.App. 387 17 S.W. 1064 (1891); Commonwealth v.
Clary,
8 Mass. 72 (1811). In the Cornell case,
supra, the
United
States purchased certain lands in Rhode Island for military
purposes. The State gave its consent to these
purchases,
reserving,
however, the right to execute all civil and criminal
processes
on the ceded lands, in the same way as if they had not
been a
reservation of concurrent jurisdiction by the State. The
court
answered this in the negative as follows (pp. 648-649):
In its terms it certainly does not
contain any reservation of
concurrent jurisdiction or
legislation. It provides only that
civil and criminal processes, issued
under the authority of the
state, which must of course be for acts
done within, and
cognizable by, the state, may be executed
within the ceded
lands, notwithstanding the cession. Not a word is said from
which we can infer that it was intended
that the state should
have a right to punish for acts done
within the ceded lands. The
whole apparent object is answered by
considering the clause as
meant to prevent these lands from
becoming a sanc-
120
tuary for fugitives from justice, for
acts done within the
acknowledged jurisdiction of the
state. Now there is nothing
incompatible with the exclusive
sovereignty or jurisdiction of
one state, that it should permit another
state, in such cases,
to execute its processes within its
limits * * *.
And
reservation of right to "execute" process, it has been held,
retains
no more authority in the State than a reservation to
"serve"
process, even in the absence of the word "exclusive" in the
description
of the quantum of jurisdiction ceded to the United
States. Rogers v. Squier, F.2d 948 (C.A. 9, 1946), cert. den.,
330
U.S. 840.
The Supreme Court of Nevada has held
(State ex rel. Jones v.
Mack,
23 Nev. 359, 47 Pac. 763 (1897)) that exception from a cession
of the
"administration of the criminal laws" reserved to the State
only
the right to serve process, and a similar holding with respect
to a
similar California statute was once made by a Federal court; but
at
least on five occasions Attorneys General of the United States
have
ruled that such language gave a State cognizance of criminal
offenses
against its laws in the place ceded. It
has also been held
that a
reservation to serve process for "any cause there [in the
ceded area]
or elsewhere in the state arising, where such cause comes
properly
under the jurisdiction of the laws of this state," merely
reserved
he right to serve process, and was not inconsistent with a
transfer
of exclusive jurisdiction.
In People v. Hillman, 246 N.Y. 467, 159
N.E. 400 (1927), it was
held
that the courts of the State of New York had no jurisdiction
over a
robbery committed on a highway which passed through the West
Point
Military Reservation. Ownership of the
land had been acquired
by the
United States, and the State had ceded jurisdiction over the
land,
reserving the
121
right
to serve civil and criminal process thereon and the right of
occupancy
of the highways. The latter
reservation, the court said,
should
not be construed as a reservation of political dominion and
legislative
authority over the highways but meant merely that the
State
reserved the right to appropriate for highway purposes the
customary
proportion of land embraced in the tract.
Warrant of arrest deemed process.--By the very nature of the
purposes
which the State reservations to serve criminal and civil
process
were intended to carry out, such reservations include
the
right to execute a warrant of arrest, including a warrant
issued
on a request for extradition. Such
warrants are a form
of
legal process. However, various Federal
instrumentalities
have
regulations governing the manner in which such process shall
be
served, and even in the absence of formal regulations on the
subject,
the service of process may
122
not be
accomplished in manner such as to constitute an interference
with an
instrumentality of the Federal Government.
Arrest without warrant not deemed service
of process.--It has
been
held that an arrest without a warrant may not be effected by a
State
police officer in an area under exclusive Federal jurisdiction,
for a
crime committed off the area, since such an arrest does not
involve
service of process. A reservation to
make such arrest might,
of
course, be made. State officials may
enter an exclusive Federal
jurisdiction
area, to make an investigation related to an offense
committed
off the area, only in manner such as will not interfere
with an
instrumentality of the Federal Government, and in accordance
with
any Federal regulations for this purpose.
Coroner's inquest.--Various authorities
have held that a State
cannot
render coroner service in an area under exclusive Federal
jurisdiction,
but in an early case (County of Allegheny v.
McClung,
53 Pa. 482 (1867)), it was suggested that a coroner's
inquest
might constitute criminal process.
123
Writ of habeas corpus.--In three early
cases a reservation of
the right
to serve process was construed as giving authority to a
State
to serve a writ of habeas corpus upon a federal military
officer
with respect to his alleged illegal detention, under color
of
Federal authority, of a person upon a Federal enclave (State v.
Dimick,
12 N.H. 194 (1841); In re Carlton, 7 Cow. 471 (N.Y., 1827);
and
Commonwealth v. Cushing, 11 Mass. 67
(1814))> The lack of
jurisdiction
is State courts to inquire by habeas corpus into the
propriety
of the confinement of persons held under the authority or
color
of authority of the United States has since been firmly fixed
and
confirmed. Ableman v. Booth, 21 How.
506 (1859), In re Tarble,
13
Wall. 397 (1871), Johnson v. Eisentrager, 339 U.S. 763 (1950).
Nor, it
would seen, may a writ of habeas corpus out of a State
court
in any case lie under the usual State reservation to serve
process
with reference to a person held in an area under exclusive
Federal
jurisdiction, although his holding be not under Federal
authority
(e.g., the holding of a child by an adult claiming
parental
authority), since such a reservation permits service only
with
respect to matters arising outside the exclusive jurisdiction
area.
It has been held, on the other hand, that a writ of habeas
corpus
properly might issue from a Federal court to discharge from
the
custody of a State official a prisoner held for a crime
indicated
to have been committed in an area which, while within the
State,
was under the exclusive legislative jurisdiction of the
United
States. Ex parte Tatem, 23 Fed. Cas.
708, No. 13,759
(E.D.Va.,
1877). The court issued the writ
reluctantly in the
Tatem
case, however, and in In re Bradley, 96 Fed. 969
(C.C.S.D.Cal.,
1898), the court said (p. 970):
Unquestionably, the circuit and district courts
of the United
States may, on habeas corpus, discharge
from custody one who is
restrained of his liberty in violation of
the constitution of
the United States, even though
124
he is so restrained under state process
to answer for an alleged
crime against the state. Rev. St. Sec. 753. This power,
however, in the federal judiciary,
"to arrest the arm of the
state authorities, and to discharge a
person held by them, is
one of great delicacy" (Ex parte Thompson, 23 Fed. Cas. p.
1016), and ought not to be exercised in
any case where suitable
relief can be had through the regular
procedure of the state
tribunals * * *.
The
court said further (p. 971):
Assuming--without, however,
deciding--that the allegations of
the petition, in the case at bar, show,
that the imprisonment of
the petition is without due process of
law, and violative of the
federal constitution, they do not, as
held in Ex parte Royall,
supra, "suggest any reason why the
state court of original
jurisdiction may not, without
interference upon the part of the
courts of the United States, pass upon
the question which is
raised," as to the lack of
jurisdiction in the state government
over the land or place in question.
The Supreme Court has ruled that whether
the United States had
exclusive
legislative jurisdiction over land where an alleged crime
was committed
is to be determined by the court to which the
indictment
was returned,, and no by writ of habeas corpus in
connection
with proceedings for the removal of the accused from
another
jurisdiction for trial. Rodman v.
Pothier, 264 U.S. 399
(1924). Presumable this rule would apply to
extradition as well as
to
removal proceedings.
FEDERAL CRIMES ACT OF 1790: Effects limited.--Among the
problems
which early resulted from the creation of Federal enclaves
was
that of the administration of criminal law over these areas.
Once
these areas were withdrawn from State jurisdiction, in the
absence
of congressional legislation they were left without criminal
law.
Congress, in order to correct this situ-
125
ation,
passed the first Federal Crimes Act, in 1790.
However,
this
act defined only the more serious crimes, such as murder,
manslaughter,
maiming, etc., punishing their commission in areas
under
the "sole and exclusive jurisdiction of the United States."
Persons
who committed other offenses in these areas escaped
unpunished.
The gravity of the situation was
indicated by Joseph Story in
his
comment on a bill which he wrote inn 1816 "to extend the judicial
system
of the United States." He stated, in
part, as follows:
* * * Few, very few of the practical
crimes, (if I may so say,)
are now punishable by statutes, and if
the courts have no
general common law jurisdiction (which is
a vexed question,)
they are wholly dispunishable. The State Courts have no
jurisdiction of crimes committed on the
high seas, or in places
ceded to the United States. Rapes, arsons, batteries, and a
host of other crimes, may in these p;aces
be now committed with
impunity. Surely, in naval yards, arsenals, forts, and
dockyards, and on the high seas, a common
law jurisdiction is
indispensable. Suppose a conspiracy to commit treason in any of
these places, by civil persons, how can
the crime be punished?
These are cases where the United States
have an exclusive local
jurisdiction. And can it be less fit that the Government should
have power to protect itself in all other
places where it
exercises a legitimate authority? That Congress have power to
provide for all crimes against the United States, is
incontestable. * * *
126
These
Federal areas within the States over which Congress had
exclusive
jurisdiction had become, it would seem from Story's
comment,
a criminals' paradise. The act of 1790,
supra, defining
and
punishing for certain crimes on such areas left many grossly
reprehensible
acts undefined and unpunished, the States no longer
had
jurisdiction over these areas, and the Federal courts had no
common
law jurisdiction.
ASSIMILATIVE CRIMES STATUTES:
Assimilative Crimes Act of 1825.--
In
order, therefore, to provide a system of criminal law for ceded
areas,
Congress, in 1825, passed the first assimilative crimes
statute. This was section 3 of the act of March 3,
1825, 4 Stat.
115,
which provided:
AND BE IT FURTHER ENACTED, That, if any
offence shall be
committed in any of the places aforesaid,
the punishment of
which offence is not specially provided
for by any law of the
United States, such offence shall, upon a conviction in any
court of the United States having
cognisance thereof, be liable
to, and receive the same punishment as
the laws of the state in
which such fort, dock-yard, navy-yard,
arsenal, armory, or
magazine, or other place, ceded as
aforesaid, is situated,
provide for the like offence when
committed within the body of
any county of such state.
Mr. Webster, who sponsored this bill,is
indicated to have
explained
the purpose of its third section as follows (register of
Debates
in Congress, 18th Cong., 2d Sess., Jan. 24, 1825, Gales &
Seaton,
Vol. I, p. 338):
127
* * * it must be obvious, that, where the
jurisdiction of a
small place, containing only a few
hundreds of people, (a navy
yard for instance,) was ceded to the
United States, some
provision was required for the punishment
of offences; and as,
from the use to which the place was to be
put, some crime were
likely to be more frequently committed
than others, the
committee had thought it sufficient to
provide for these, and
then to leave the residue to be punished
by the laws of the
state in which the yard, &c. might
be. He [Webster] was
persuaded that the people would not view
it as an hardship, that
the great class of minor offences should
continue to be punished
in the same manner as they had been
before the cession.
In United States v. Davis, decided in
1829, the court
stated
the purpose of the act of 1825, at page 784:
The object of the act of 1825 was to
provide for the punishment
of offences committed in places under the
jurisdiction of the
United States, where the offence was not
before punishable by
the courts of the United States under the
actual circumstances
of its commission. * * *
The act of 1825 was construed by the
Supreme Court in United
States
v. Paul, 6 Pet. 141 (1832). An act of
1829 of the New York
legislature
was held not to apply under the Assimilative Crimes Act
to the
West Point Military Reservation, situated in the State of
New
York. Chief Justice Marshall ruled that
the act of 1825 was to
be
limited to the adoption of States laws
in effect at the time of
its
enactment. Any State laws enacted after
March 3, 1825, could
not be
adopted by the act and would therefore be of no effect in a
Federal
enclave. It appeared, therefore, that
the assimilative
crimes
statute would have to be re-enacted periodically in order to
keep
the criminal laws of Federal enclaves abreast with State
criminal
laws.
128
In United States v. Barney, 24 Fed. Cas.
1011, No. 14,524
(C.C.S.D.N.Y.,
1866), the court held that the act of 1825 applied
only to
those places which were under the exclusive jurisdiction of
the
United States at the time the act was passed.
Therefore, the
act
would not apply to any areas ceded to the Federal Government by
the
States after March 3, 1825. It was
similarly apparent then
that
any areas ceded by the States to the Federal Government after
the
date of the act of 1825 were left without criminal law except
as to
those few offenses defined in the Federal Crimes Act of 1790,
supra.
Assimilative Crimes Act of 1866.--The
Paul case limited the
act as
to time, and the Barney case as to place.
The Congress
completely
remedied the situation brought about by the Barney case,
and
alleviated the problems raised by the Paul case, by the act of
April
5, 1866 (14 Stat. 12, 13), re-enacting an Assimilative Crimes
Act. This law extended the act to "any place
which has been or
shall
hereafter be ceded" to the United States.
It also spelled
out
what had in any event probably been the law--that no subsequent
repeal of
any State penal law should affect any prosecution for
such
offense in any United States court.
Accordingly, though a
State
penal law was re-pealed that law still remained as part of
the
Federal criminal code for the Federal area.
Re-enactments of Assimilative crimes Act,
1898-1940.--The next
re-enactment
of the Assimilative Crimes Act came on July 7, 1898
(30
Stat. 717). The constitutionality of
the 1898 act was
sustained
in Franklin v. United States, 216 U.S. 559 (1910), writ
of
error dism., 220 U.S. 624. This case
held that the act did not
delegate
to the States authority in any way to change the criminal
laws
applicable to places over which the United States had
jurisdiction,
adopting only the State law in exist-
129
ence at
the time the 1898 act was enacted, and that the act was not
an
unconstitutional delegation of authority be Congress.
The following statements were made by
Chief Justice White in
United
v. Press Publishing Company, 219 U.S. 1 (1911), referring to
the
1898 statute (page 9):
It is certain, on the face of the quoted
section, that it
exclusively relates to offenses committed
on United States
reservations, etc., which are "not
provided for by any law of
the United States," and that as to
such offenses the state law,
when they are by that law defined and
punished, is adopted and
made applicable. That is to say, while the statute leaves no
doubt where acts are done on reservations
which are expressly
prohibited and punished as crimes by a
law of the United States,
that law is dominant and controlling,
yet, on the other hand,
where no law of the United States has
expressly provided for the
punishment of offenses committed on
reservations, all acts done
on such reservations which are made
criminal by the laws of the
several States are left to be punished
under the applicable
state statutes. When these results of the statute are borne in
mind it becomes manifest that Congress,
in adopting it,
sedulously considered the two-fold
character of our
constitutional government, and had in
view the enlightened
purpose, so far as the punishment of
crime was concerned, to
interfere as little as might be with the authority
of the States
on that subject over all territory
situated within their
exterior boundaries, and which hence
would be subject to
exclusive state jurisdiction but for the
existence of a United
States reservation. In accomplishing these purposes it is
apparent that the statute, instead of
fixing by its own terms
the punishment for crimes committed on
such reservations which
were not previously provided for by a law
of the United States,
adopted and wrote in the state law, with
the single difference
that the offense,
130
although punished as an offense against
the United States, was
nevertheless punishable only in the way
and to the extent that
it would have been punishable if the
territory embraced by the
reservation remained subject to the
jurisdiction of the State. *
* *
The Assimilative Crimes Act of 1898
became section 289 of the
Criminal
Code by the act of March 4, 1909 (35 Stat. 1088). In
referring
to section 289 the court, in Puerto Rico v. Shell Co.,
302
U.S. 253 (1937), said (page 266):
Prosecutions under that section, however,
are not to enforce the
laws of the state, territory or district,
but to enforce the
federal law, the details of which,
instead of being recited, are
adopted by reference.
The
constitutionality of the act was upheld in Washington, P. and
C. Ry.
v. Magruder, 198 F. 218 (D.Md., 1912).
The court said (p.
222):
Congress may not empower a state
Legislature to create offenses
against the United States or to fix their
punishment. Congress
may lawfully declare the criminal law of
a state as it exists at
the time Congress speaks shall be the law
of the United States
in force on particular portions of the
territory of the United
States subject to the latter's exclusive
criminal jurisdiction.
* * *
Section 289 of the Criminal Code was
subsequently reenacted on
three
occasions:
1.
Act of June 15, 1933, 48 Stat. 152, adopting State laws in
effect on June 1, 1933. 2. Act of June 20, 1935, 49 Stat.
394, adopting State laws in
effect on April 1, 1935. 3. Act of June 6, 1940, 54 Stat.
234, adopting State laws in
effect on February 1, 1940.
131
Subsequently the act of June 11, 1940 (54
Stat. 304), extended
the
scope and operation of the assimilative crimes statute by
amending
section 272 of the Criminal Code so that the criminal
statutes
set forth in chapter 11, title 18, United States Code,
including
the assimilative crimes statute, applied to lands under
the
concurrent as well as the exclusive jurisdiction of the United
States.
Assimilative Crimes Act of 1948.--The
present assimilative
crimes
statute was enacted on June 25, 1948, in the revision and
codification
into positive law of title 18 of the United States
Code. It now constitutes section 13 of title 18 of
the Code,
and
reads as follows:
Whoever within or upon any of the places
now existing or
hereafter reserved or acquired as
provided in section 7 of this
title, is guilty of any act or omission
which, although not made
punishable by any enactment of Congress,
would be punishable if
committed or omitted within the
jurisdiction of the State,
Territory, Possession, or District in
which such place is
situated, by the laws thereof in force at
the time of such act
or omission, shall be guilty of a like
offense and subject to a
like punishment.
Section 7 of title 18, United States
Code, referred to in
section
13, merely defines the term "special maritime and
territorial
jurisdiction of the United States," in pertinent part
as
follows:
(3) Any lands reserved or acquired for
the use of the United
States, and under the exclusive or
concurrent jurisdiction
thereof, or any place purchased or
otherwise acquired by the
United States by consent of the
legislature of the State in
which the same shall be, for the erection
of a fort, magazine,
arsenal, dockyard, or other needful
building.
132
The language of the present assimilative
crimes statute, it
may be
noted, does away with the requirement for further periodic
re-enactment
of the law to keep abreast with changes in State penal
laws. The words "by the laws thereof in force
at the time of such
act or
omission" make such re-enactments unnecessary. The
previously
existing section 289 of the Criminal Code, through its
several
re-enactments, supra, need, "by the laws thereof, now in
force." Accordingly, under the language of the
present statute the
State
law in force at the time of the act or omission governs if
there
was no pertinent Federal law. All
changes, modifications and
repeals
of State penal laws are adopted by the Federal Criminal
Code,
keeping the act up to date at all times.
INTERPRETATIONS OF ASSIMILATIVE CRIMES
ACT: Adopts State law.--
It is
emphasized that the Assimilative Crimes Act adopts the State
law.
The Federal courts apply not State penal laws, but Federal
criminal
laws which have been adopted by reference.
Operates only when offense is not
otherwise defined.--The
Assimilative
Crimes Act operates only when the Federal Criminal Code
has not
defined a certain offense or provided for its punishment.
Furthermore,
when an offense has been defined and prohibited by the
Federal
code the assimilative crimes statute cannot be used to
redefine
and enlarge or narrow the scope of the Federal offense. The
law
applicable in this
133
matter
is clearly set out in Williams v. United States, 327 U.S.
711
(1946), (p. 717):
We hold that the Assimilative Crimes Act
does not make the
Arizona statute applicable in the present
case because (1) the
precise acts upon which the conviction
depends have been made
penal by the laws of congress defining
adultery and (2) the
offense known to arizona as that of
"statutory rape" has been
defined and prohibited by the Federal
Criminal Code, and is not
to be redefined and enlarged by
application to it of the
Assimilative Crimes Act. The fact that the definition of this
offense as enacted by Congress results in
a narrower scope for
the offense than that given to it by the
State, does not mean
that the congressional definition must
give way to the State
definition. * * * The interesting legislative history of the
Assimilative Crimes Act discloses nothing
to indicate that,
after Congress has once defined a penal
offense, it has
authorized such definition of it. It has not even been
suggested that a conflicting State
definition could give a
narrower scope to the offense than that
given to it by Congress.
We believe that, similarly, a conflicting
State definition does
not enlarge the scope of the offense
defined by Congress. The
Assimilative Crimes Act has a natural
place to fill through its
supplementation of the Federal Criminal
Code, without giving it
the added effect of modifying or
repealing existing provisions
of the Federal Code.
The Assimilative Crimes Act has a certain
purpose to fulfill
and its
application should be strictly limited to that purpose. On
the
other hand, it has been applied when there has been the
slightest
gap in Federal law. In Ex parte Hart,
157 Fed. 130
(D.Ore,
1907) the court, in interpreting the act of July 7, 1898,
said
(p. 133):
134
When, therefore, section 2 declares that
when any offense is
committed in any place, the punishment
for which is not provided
for by any law of the United States, it comprehends
offenses
created by Congress where no punishment
is prescribed, as well
as offenses created by state law, where
none such is inhibited
by Congress. So that the latter section is as comprehensive and
far-reaching as the former, and is in
practical effect the same
legislation.
Includes common law.--It has also been
held that the
Assimilative
Crimes Act adopted not only the statutory laws of a
State,
but also the common law of the State as
to criminal
offenses. United States v. Wright, 28 Fed. Cas. 791,
No. 16,774
(D.
Mass., 1871).
Excludes statute of limitations.--The
Assimilative Crimes Act
does
not, however, incorporate into the Federal law the general
statute
of limitations of a State relating to crimes; question on
this
matter arose in United States v. Andem, 158 Fed. 996 (D.N.J.,
1908),
where the court held that the Federal statute of limitations
would
apply, the State statute of limitations being a different
statute
from that which defined the offense.
Excludes law on sufficiency of
indictments.--In McCoy v.
Pescor,
145 F.2d 260 (C.A. 8, 1944), cert. den., 324 U.S. 868
(1945),
question arose as to the sufficiency of Federal indictments
under a
Texas statute adopted by the Assimilative Crimes Act. The
court
held (p. 262):
Petitioner argues that the question here
is controlled by the
decisions of the Texas courts regarding
the sufficiency of
indictments under the adopted Texas
statute. * * * The Texas
decisions, however, are not controlling. Prosecutions under 18
U.S.C.A. Sec. 468, "are not to
enforce the laws of the state,
territory, or district,
135
but to enforce the federal law, the
details of which, instead of
being recited, are adopted by
reference." * * *
This is
amplified in a discussion concerning the Assimilative
Crimes
Act in 22 Calif.L.Rev. 152 (1934).
Offenses included.--The overwhelming
majority of offenses
committed
by civilians on areas under the exclusive criminal
jurisdiction
of the United States are petty misdemeanors (e.g.,
traffic
violations,drunkenness). Since these
are not define them
by
regulations is limited to a few Federal administrators, their
commission
usually can be punished only under the Assimilative
Crimes
Act. The act also has invoked to cover
a number of
serious
offenses defined by State, but not Federal law.
Offenses not included.--The Assimilative
Crimes act will not
operate
to adopt any State penal statutes which are in conflict
with
Federal policy as expressed by acts of Congress or by valid
administrative
regulations. In Air Terminal Services,
Inc. v.
Rentzel,
81 F.Supp. 611 (E.D.Va., 1949), a Virginia statute
provided
for segregation of white and colored races in places of
public
assemblage and entertainment. A
regulation of the Civil
Aeronautics
Administrator prohibited segregation at the Washington
National
airport located in Virginia. The
airport was under the
exclusive
criminal jurisdiction of the United States.
The question
presented
was whether the Virginia statute was adopted by the
Assimilative
Crimes Act, thus rendering the Administrator's
regulation
invalid. The court held, at page 612:
136
The fundamental purpose of the
assimilative crimes act was to
provide each Federal reservation a
criminal code for its local
government; it was intended "to use
local statutes to fill in
gaps in the federal Criminal Code." It is not to be allowed to
override other "federal policies as
expressed by Acts of
Congress" or by valid administrative
orders, Johnson v. Yellow
Cab Co., 321 U.S. 383, * * * and one of
those ""federal
policies" has been the avoidance of
race distinction in Federal
matters.
Hurd v. Hodge, 334 U.S. 24, 34, 68 S.Ct. 847. The
regulation of the Administrator, who was
authorized by statute,
Act of June 29, 1940, 54 Stat. 686, to
promulgate rules for the
Airport, is but an additional declaration
and effectuation of
that policy, and therefore its issuance
is not barred by the
assimilative crimes statute.
In Nash
v. Air Terminal Services, Inc., 85 F.Supp. 545 (E.D.Va.,
1949),
decided on the basis of facts existing before the
Administrator's
regulation was issued, it was held that the
Virginia
segregation statute had been adopted by the Assimilative
Crimes
Act, and did apply to the National Airport.
However, it was
held
that once the regulation was promulgated the State statute was
no
longer enforceable at the airport. The
court said (p. 548):
Too, the court is of the opinion that the
Virginia statute
already cited was then applicable to the
restaurants and
compelled under criminal penalties the
separation of the races.
The latter became a requirement of the
federal law prevailing on
the airport, by virtue of the
Assimilative Crimes Act, supra,
and continued in force until the
promulgation, on December 27,
1948, by the Administrator of Civil
Aeronautics of his
regulation expressing a different policy.
* * *
When lands are acquired by the United
States in a State for a
Federal
purpose, such as the erection of forts, arsenals or other
public
buildings, these lands are free, regardless of their
137
legislative
jurisdictional status, from such interference of the
State
as would destroy or impair the effective use of the land for
the
Federal purpose. Such is the law with reference
to all
instrumentalities
created by the Federal Government.
Their
exemption
from State control is essential to the independence and
sovereign
authority of the United States within the sphere of its
delegated
powers. Fort Leavenworth R.R. v. Lowe,
114 U.S. 525
(1885);
James v. Dravo Contracting Company, 302 U.S. 134 (1937).
In providing for the carrying out of the
functions and purposes
of the
Federal government, Congress on numerous occasions has
authorized
administrative officers or boards to adopt regulations to
effect
the will of Congress as expressed by Federal statutes. For
example,
the Secretary of the Interior is authorized to make rules
and
regulations for the management of parks, monuments and
reservations
under the jurisdiction of the National Park Service (16
U.S.C.
551); the Administrator of General Services is authorized to
make
regulations governing the use of Federal property under his
control
(40 U.S.C. 31a); and the head of each Department of the
Government
is authorized to prescribe regulations, not inconsistent
with
laws, for the government of his department, the conduct of its
officers
and clerks, the distribution and performance of its
business,
and the custody, use and preservation of the records,
papers,
and property appertaining to it (5 U.S.C. 22).
The law is
well
settled that any such regulation must meet two fundamental
tests:
(1) it must be reasonable and appropriate (Manhattan Co. v.
Commissioner,
297 U.S. 129, 134 (1936); International Ry. v.
Davidson,
257 U.S. 506, 514 (1922); Commissioner of Internal
138
Revenue
v. Clark, 202 F.2d 94, 98 (C.A. 7, 1953); Krill v. Arma
Corporation,
76 F.Supp. 14 17 (E.D.N.Y., 1948)), and (2) it must be
consistent
not only with the statutory source of authority, but
with
the other Federal statutes and policies (Manhattan Co. v.
Commissioner,
supra; International Ry. v. Davidson, supra; Johnson
v.
Keating, 17 F.2d 50, 52 (C.A. 1, 1926); In re Merchant Mariners
Documents,
91 F.Supp. 426, 429 (N.D.Cal., 1949); Peoples Bank v.
Eccles,
161 F.2d 636, 640 (D.C.App., 1947), rev'd. on other
grounds,
333 U.S. 426 (1948)).
It may be assumed that a Federal
regulation in conflict with a
State
law will nevertheless fail to prevent the adoption of the State
law
under the Assimilative Crimes Act, or to terminate the
effectiveness
of the law, unless the regulation meets the fundamental
tests
indicated above. However, there appear
to be no judicial
decisions
other than the Rentzel and Nash cases, supra, which both
indicated
a regulation to be valid that touch upon the subject. No
reported
judicial decision appears to exist upholding the
effectiveness,
under the Assimilative Crimes Act, of a primarily
regulatory
statute containing criminal provisions.
Liquor licensing
laws,
zoning laws, building codes, and laws controlling insurance
solicitation,
when these provide criminal penalties for violations,
are
such as are under consideration.
On the other hand, no judicial decision has
been discovered in
which
it has been held that a regulatory statute of the State which
was the
former sovereign was ineffective in an area under the
exclusive
jurisdiction of the Federal Government for the
139
reason
that the Assimilative Crimes Act did not apply to federalize
such
statutes. Several cases have from time
to time been cited
in
support of the theory that the act does not apply to criminal
provisions
of regulatory State statutes, but in each case the
decision
of the court actually was based on other grounds, whatever
the
dicta in which the court may have indulged.
Collins v. Yosemite Park Co., 304 U.S.
518 (1938), involved an
attempt
by a State body to license and control importation and sale
of liquor
in an area under partial (denominated "exclusive" in the
opinion)
Federal jurisdiction, where a right to impose taxes had been
reserved
by the State. While the court found
unenforceable by the
State
the regulatory provisions of State law attempted to be
enforced,
it seems clear that it did so on the ground that the
State's
reservation to tax did not reserve to it authority to
regulate,
taxation and regulation being essentially different; there
was no
question involved as to whether the same regulatory statutes
might
have been enforced as Federal law by a Federal agency under the
Assimilative
Crimes Act.
Petersen v. United States, 191 F.2d 154
(C.A. 9, 1951), cert.
den.,
342 U.S. 885, decided that legislative jurisdiction had been
transferred
from a State to the United States with respect to a
privately
owned area within a national park, and on this basis the
court
held invalid a license issued by the State, contrary to Federal
policy,
for sale of liquor on the area. As in
the Collins case, this
was a
disapproval of a State attempt to exercise State authority in a
matter
jurisdiction over which had been ceded to the Federal
Government.
In Crater Lake Nat. Park Co. v. Oregon
Liquor Control Com'n, 26
F.Supp.
363 (D.Ore., 1939), the court interpreted the Collins case as
holding
that "the regulatory features of the
140
California
Liquor Act are not applicable to Yosemite National
Park,"
and called attention to the similarity in the facts involved
in the
two cases. But in the Crater Lake Nat.
Park Co. case there
was
raised for the first time, by motion for issuance injunction,
the
question whether the Assimilative crimes Act effects the
federalization
of regulatory provisions of State law; this question
the
court did not answer, holding that its resolution should occur
through
a criminal proceeding and that there was no ground for
injunctive
relief.
The case of Birmingham v. Thompson, 200
F.2d 505 (C.A. 5, 1952),
like
the Collins and Petersen cases, resulted in a court's
disapproval
of a State's attempt to exercise State regulatory
authority
in a matter jurisdiction as to which had been transferred
to the
Federal Government. Here it was a
municipality (under State-
derived
authority, of cause) which sought to impose the provisions of
a
building code, particularly the requirement for a build its
incidental
fee, upon a Federal contractor, and the court held that a
State
reservation of taxing power did not extend to permit State
control
of building. Again, there was involved
no question as to
whether
the Assimilative Crimes Act federalized State regulatory
statutes.
In the case of Johnson v. Yellow Cab
Transit Co., 321 U.S. 383
(1944),
there was involved a State seizure of liquor in transit
through
State territory to an area under exclusive Federal
jurisdiction. The court's decision invalidating the
seizure was
based
on the fact that no State law purported to prohibit or regulate
a
shipment into or through the State, there was raised the question
whether
the Assimilative Crimes Act effected an adoption of State
law in
the Federal enclave, which might have had the effect of making
illegal
the transactions involved. The court
made clear that it was
avoiding
this question (p. 391):
141
Were we to decide that the assimilative
crimes statute is not
applicable to this shipment of liquors,
we would, in effect, be
construing a federal criminal statute
against the United States
in a proceeding in which the United
States has never been
represented. And, on the other hand, should we decide the
statute outlaws the shipment, such a
decision would be
equivalent to a holding that more than
200 Army Officers, sworn
to support the Constitution, had
participated in a conspiracy to
violate federal law. Not only that, it would for practical
purposes be accepted as an authoritative
determination that all
army reservations in the State of
Oklahoma must conduct their
activities in accordance with numerous
Oklahoma liquor
regulations, some of which, at least, are
of doubtful
adaptability. And all of this would be decided in a case
wherein neither the Army Officers nor the
War Department nor the
Attorney General of the United States
have been represented, and
upon a record consisting of stipulations
between a private
carrier and the legal representatives of
Oklahoma.
While
two justices of the Supreme Court rendered a minority opinion
expressing
the view that the Assimilative Crimes Act adopted State
regulatory
statutes for the Federal enclave and made illegal the
transactions
involved, the majority opinion cannot hereby be
construed,
in view of the plain language with which it expresses
the court's
avoidance of a ruling on the question, as holding that
the
Assimilative Crimes Act does not adopt regulatory statutes.
The absence of decisions on the point
whether the Assimilative
Crimes
Act is applicable to regulatory statutes containing criminal
provisions
may will long continue, in the general absence of Federal
machinery
to administer and enforce such statutes.
In any event, it
seems
clear that portions of such statutes providing for
administrative
machinery are inapplicable in Federal enclaves; and in
numerous
instances
142
such
portions will, in falling, bring down penal provisions from
which
they are inseparable.
UNITED STATES COMMISSIONERS ACT OF
1940: The act of October 9,
1940 (now
18 U.S.C. 3401), granted to United States commissioners the
authority
to make final disposition of petty offenses committed on
lands
under the exclusive or concurrent jurisdiction of the United
States,
this providing an expeditious method of disposing of many
cases
instituted under the assimilative crimes statute. By 28
U.S.C.
632, national park commissioners (see 28 U.S.C. 631), have had
extended
to them the jurisdiction and powers had by United States
commissioners
under 18 U.S.C. 43001.
The view has been expressed that under
this act United States
commissioners
are not authorized to try persons charged with petty
offenses
committed within a national monument, a national memorial
park,
or a national wildlife refuge, because
of the fact that United
States
held the particular lands in a proprietorial interest statue,
in
accordance with its usual practice respecting lands held for these
purposes,
and the act authorizes specially designated commissioners
to act
only with respect to lands over which the United States
exercises
either exclusive or concurrent jurisdiction.
It is interesting to note that the act of
October 9, 1940 (54
Stat.
1058), of which the present code section is a re-enactment by
the act
of June 25, 1948, was introduced as H.R. 1999, 76th Congress.
A
similar bill (H.R. 4011) without the phraseology
143
"or
over which the United States has concurrent jurisdiction" was
passed
by the House of Representatives in the 75th Congress. When
the bill
was reintroduced in the 76th Congress, the above-quoted
words
were included at the special request of the National Park
Service,
since only a small number of national park areas were
under
the exclusive jurisdiction of the United States, and without
some
language to provide for the trial jurisdiction of
commissioners
over petty offenses committed in the other areas the
benefits
of the proposed legislation could not be realized in many
national
parks.
The words "concurrent
jurisdiction" were suggested because they
were
understood as including partial (or proprietorial) jurisdiction
and as
consisting essentially of that jurisdiction of the Federal
Government
which is provided by the Constitution, article IV, section
8. In fact, for a number of years, a
proprietorial interest status
as
exercised over permanent reservations by the United States was
understood
among attorneys in the Department of the Interior as
"concurrent
jurisdiction." This construction has never been placed on
the
term "concurrent jurisdiction" either by the courts or by
Government
agencies generally, and at least in recent years the
Department
of the Interior has not so interpreted the term.
In this connection, it should be noted
that the Department of
the
Interior in the past considered obtaining, in collaboration
with
other interested Federal agencies, legislation which would
authorize
United States commissioners to try petty offenses against
the
United States, regardless of the status of the jurisdiction over
the
Federal area involved.
144
The Committee has given consideration to
broadening the powers
of
United States commissioners by authorizing them to act
additionally
on lands over which the Government has a proprietorial
interest
only. In the Committee's conclusions
and
recommendations,
it was recommended that the powers of
commissioners
also extend to any place "* * * which is under the
charge
and control of the United States."
CHAPTER VI
CIVIL JURISDICTION
RIGHT OF DEFINING CIVIL LAW LODGED IN
FEDERAL GOVERNMENT: In
general.--Once
an area has been brought under the exclusive
legislative
jurisdiction of the Federal Government, in general only
Federal
civil laws, as well as Federal criminal laws, are applicable
in such
area, to the exclusion of State laws.
In Western Union Tel.
co. v.
Chiles, 214 U.S. 274 (1909), suit had been brought under a law
of the
State of Virginia imposing a statutory civil penalty for
nondelivery
of a telegram, the telegram in this instance having been
addressed
to the Norfolk Navy Yard. The court
said (p. 278):
It is apparent from the history of the
establishment of the
Norfolk Navy Yard, already given, that it
is one of the places
where the Congress possesses exclusive
legislative power. It
follows that the laws of the State of
Virginia, with the
exception referred to in the acts of
Assembly, [right to execute
civil and criminal process] cannot be
allowed any operation or
effect within the limits of the
yard. The exclusive power of
legislation necessarily includes the
exclusive jurisdiction.
The subject is so fully discussed by Mr.
Justice Field,
delivering the opinion of the court in
Fort Leavenworth R.R. Co.
v. Lowe, 114 U.S. 525, that we need do no
more than refer to
that case and the cases cited in the
opinion. It is of the
highest public importance that the
jurisdiction of the State
should be resisted at the borders of
those
145
146
places where the power of exclusive
legislation is vested in the
congress by the Constitution. Congress already, with the design
that the places under the exclusive
jurisdiction of the United
States shall not be freed from the
restraints of the law, has
enacted for them (Revised Statutes, LXX,
chapter #) an extensive
criminal code ending with the provision
(Sec. 5391) that where
an offense is not specially provided for by any law United
States, it shall be prosecuted in the
courts of the United
States and receive the same punishment
prescribed by the laws of
the State in which the place is situated for
like offenses
committed within its jurisdiction. We do not mean to suggest
that the statute before us creates a
crime in the technical
sense.
If it is desirable that penalties should be inflicted
for a default in the delivery of a
telegram occurring within the
jurisdiction of the United States,
Congress only has the power
to establish them.
The civil authority of a State is
extinguished over privately
owned
areas and privately operated areas to the same extent as over
federally
owned and operated areas when such areas are placed under
the
exclusive legislative jurisdiction of the United States.
147
State reservation of authority.--State
reservation of authority
to
serve process in an area is not inconsistent with Federal exercise
of
exclusive jurisdiction over the area.
It has been held, however,
that a
reservation of the right to serve process does not permit a
State
to serve a writ of attachment against either public or private
property
located on an area under exclusive Federal jurisdiction,
and, it
would seem, it does not permit State service of a writ of
habeas
corpus with respect to a person held on such an area. It has
also
been held, on the other hand, that a reservation to serve
process
enables service, under a statue appointing the Secretary of
State
to receive service for foreign corporations doing business
within
the State, upon a corporation doing business within the
boundaries
of the State only upon an exclusive Federal jurisdiction
area. And residence of a person on an exclusive
Federal jurisdiction
area
does not toll application of the State statute of limitations
where
there has been a reservation of the right to serve proc-
148
ess. While a State may reserve various authority
of a civil
character
other than the right to serve process in transferring
legislative
jurisdiction over an area to the Federal Government, such
reservations
result in Federal possession of something less than
exclusive
jurisdiction, and the rights of States with respect to the
exercise
of reserved authority in a Federal area will be discussed a
subsequent
chapter.
Congressional exercise of right.--statute
relating to death or
injury
by wrongful act.--While the Congress has, through the
Assimilative
Crimes Act and Federal law defining various specific
crimes,
established a comprehensive system of Federal laws for the
punishment
of crimes committed in areas over which it has legislative
jurisdiction,
it has not made similar provision for civil laws in
such
areas. Indeed, the only legislative
action of the Federal
Government
toward providing Federal civil law in these areas has been
the
adoption (in the general manner accomplished by the Assimilative
Crimes
Act), for areas under the exclusive legislative jurisdiction
of the
United States, of the laws of the several States relating to
right
of action for the death or injury of a person by the wrongful
act or neglect
of another. The act of February 1,
1928, has a
history
relating back to 1919. In that year
Senator Walsh of Montana
first
introduced a bill (S. 206, 66th Cong., 1st Sess.), which was
debated
and passed by the Senate, but on which the House took no
action,
having substantially the language of the statute finally
enacted. Nearly identical bills were introduce by the
same senator
and
149
passed
by the Senate, without the filing of a report and without
debate,
in the three succeeding Congresses.
However, not until a
fifth
bill was presented by the senator (S. 1798, 70th Cong., 1st
Sess.)
did favorable action ensue in the House, as well as in the
Senate,
and the bill became law. On but two occasions were these
bills
debated. When the first bill (S. 206,
66th Cong., 1st Sess.)
came up
for consideration, on June 30, 1919, Senator Walsh said with
respect
to it:
The acts creating the various national
parks give to the United
States exclusive jurisdiction over those
territories, so that a
question has frequently arisen as to
whether, in case one
suffers death by the default or willful
act of another within
those jurisdiction, there is any law
whatever under which the
dependents of the deceased may recover
against the person
answerable for his death. For instance, in the Yellowstone
National Park quite a number of deaths
have occurred in
connection with the transportation of
passengers through the
park, and a very serious question arises
as to whether, in a
case of that character, there is any law
whatever under which
the widow of a man who was killed by the
neglect, for instance,
of the transportation company handling
the passengers in the
park could recover.
The purpose of this proposed statute is
to give a right of
action in all such cases exactly the same
as is given by the law
of the State within which the reservation
or other place within
the exclusive jurisdiction of the United
States may be located.
* * * * *
This is merely to give the same right of
action in case within a
district which is within the exclusive
jurisdic-
150
tion of the United States as is given by
the law of the State
within which it is located should the
occurrence happen outside
of the region within the exclusive
jurisdiction of the United
States.
Senator
Smoot interjected:
I understand from the Senator's statement
what is desired to be
accomplished, but I was wondering whether
it was a wise thing to
do that at this time. An act of Congress authorizes the payment
of a certain amount of money to the widow
or the heirs of an
employee killed or injured in the public
service. It is true
that those amounts are usually paid by
special bills by way of
claims against the Government when there
is no objection to
them.
I do not know just how this bill, if enacted into law,
will affect the existing law.
To
which Senator Walsh replied:
Let me say to the Senator that we are
required to take care of
the cases to which he has referred,
because they touch the
rights of persons in the employ of the
United States, and their
cause of action is against the United
States. This bill does
not touch cases of that kind at all. It merely touches cases of
injury inflicted by some one other than
the Government. Under
this bill the Government will be in no
wise liable at all.
During Senate consideration of the fifth
of the series of bills
(S.
1798, 70th Cong., 1st Sess.), on January 14, 1928, the following
discussion
was had:
Mr. WALSH of Montana. A similar bill has passed the Senate many
times, at least three or four, but for
some reason or other it
has not succeeded in securing the
approbation of the House. It
is intended practically to
151
make the application of what is known as
Lord Campbell's Act to
places within the exclusive jurisdiction
of the United States.
Practically every State now has given a
right of action to the
legal representatives of the dependent
relatives of one who has
suffered a death by reason of the neglect
or wrongful act of
another, there being no such recovery, it
will be recalled, at
common law.
There are a great many places in the
United States under the
exclusive jurisdiction of the United
States--the national parks,
for instance. If a death should occur within those, within the
exclusive jurisdiction of the United
States, there would be no
right of recovery on he part of the representatives
or
dependents of the person who thus
suffered death as a result of
the wrongful act or neglect of another.
In the State of the Senator I suppose a
right of action is given
by the act of the Legislature of the
State of Arkansas to the
representatives of one who thus suffers,
but if the death occur
within the Hot Springs Reservation, being
entirely within the
jurisdiction of the United States, no
recovery could be had,
because recovery can be had there only by
virtue of the laws of
Congress. The same applies to the Yellowstone National Park in
Wyoming and the Glacier National Park in
Montana.
Mr. WALSH of Montana. It would; so that if under the law of
Arkansas a right of recovery could be had
if the death occurred
outside of the national park, the same
right of action would
exist if it occurred in the national
park.
Mr. BRUCE. In other words, as I understand it, it is intended
to meet the common-law principle that a
personal action dies
with the death of the person?
152
Mr. WALSH of Montana. Exactly.
Only a single written report was
submitted (by the House
Committee
on the Judiciary, on S. 1798) on any of the bills related
to the
act of February 1, 1928. In this it was
stated:
This bill has passed the senate on three
or four occasions, but
has never been reached for action in the
House. This bill gives
a right of action in the case of death of
any person by neglect
or wrongful act of another within a
national park or other place
subject to the exclusive jurisdiction of
the United States
within the exterior boundaries of any
State.
It provides that a right of action shall
exist as though the
place were under the jurisdiction of the
State and that the
rights of the parties shall be governed
by the laws of the State
within the exterior boundaries of which
the national park or
other Government reservation may be. Under the common law no
right of action survived to the legal
representatives in case of
death of a person by wrongful act or
neglect of another. This
was remedied in England by what is known
as Lord Campbell's Act,
and the states have almost without
exception passed legislation
giving a right of action to the legal
representatives or
dependent relatives of one who has
suffered death by reason of
the wrongful act of another. This bill will provide a similar
remedy for places under the exclusive
jurisdiction of the United
States.
It may be noted that neither the language
of the 1928 act, nor
the
legislative history of the act, set out above, cast much light on
whether
the act constitutes a retrocession of a measure of
jurisdiction
to the States, or an adoption of State law as Federal
law. But a retrocession, it has been seen,
requires State consent,
and no
consent is provided for under this statute,
153
unlike
the case with repeat to Federal statutes providing for
application
of State laws relating to workmen's compensation,
unemployment
compensation, and other matters, where the Federal
statute
cannot be implemented without some action by the State. It
is
largely on this basis that the 1928 statute is here classified as
a
Federal adoption of State law, rather than a retrocession. It may
also be
noted hat the debate on the bills, and the House report, set
out in pertinent
part above, indicate that the purpose of the bill
was to
furnish a remedy to survivors in the nature of that provided
by Lord
Campbell's Act, and no reference is made to language in the
title
of the bill, and in its text, suggesting that the bill applied
to
personal injuries, as well as deaths, by wrongful act. While the
question
whether the act applies to personal injuries, as well as
deaths,
appears not to have been squarely presented to the courts,
for
purposes of convenience, only, the act is herein referred to as
providing
a remedy in both cases. In any event,
however, it would
clearly
seem not to apply to cases of damage to personal or real
property.
The statute adopting for exclusive
jurisdiction areas State laws
giving
a right of action for death or injury by wrongful act or
neglect
did not, it was held by a case which led to further Federal
legislation,
adopt a State's workmen's compensation
154
law. Murray v. Gerrick & Co., et al., 291
U.S. 315 (1934). An
argument
to the contrary was answered by the court as follows (p.
318):
* * * This argument overlooks the fact
that the federal statute
referred only to actions at law, whereas
the state act abolished
all actions at law for negligence and
substituted a system by
which employers contribute to a fund to
which injured workmen
must look for compensation. The right of action given upon
default of the employer in respect of his
obligation to
contribute to the fund is conferred as a
part of the scheme of
state insurance and not otherwise. The act of Congress vested
in Murray no right to sue the
respondents, had he survived his
injury.
Nor did it authorize the State of Washington to collect
assessments for its state fund from an
employer conducting work
in the Navy Yard. If it were held that beneficiaries may sue,
pursuant to the compensation law, we
should have the incongruous
situation that this law is in part
effective and in part
ineffective within the area under the
jurisdiction of the
federal government. Congress did not intend such a result. On
the contrary, the purpose was only to
authorize suits under a
state statute abolishing the common law
rule that the death of
the injured person abates the action for
negligence.
It was also held in the Murray case that
the 1928 Federal
statute
served to make effective in Federal areas the law as revised
from
time to time by the State, not merely the law in effect as of
the
date of transfer of legislative jurisdiction to
155
the
United States. The issue was not
presented, however, whether a
State
statute enacted after the 1928 Federal statue would apply.
State unemployment compensation and
workmen's compensation laws
may be
made applicable in such areas by authority of the Congress.
But
while the application of these laws has been made possible by
Federal
statutes, these statutes, discussed more fully in chapter
VII,
infra, did not provide Federal laws covering unemployment
compensation;
rather, they effect a retrocession of sufficient
jurisdiction
to the States to enable them to enforce and administer
in Federal
enclaves their State laws relating to unemployment
compensation
and workmen's compensation. The Federal
Government has
similarly
granted powers to the States for exercise in Federal
enclaves
with respect to taxation, and these also will be discussed
in a
subsequent chapter.
Early apparent absence of civil law.--A
careful search of the
authorities
has failed to disclose recognition prior to 1885 of any
civil
law as existing in areas under the exclusive legislative
jurisdiction
of the United States. Debates and other
parts of the
legislative
history of the Assimilative Crimes Act, indicating
prevalence
of a belief that in the absence of Federal statutory law
providing
for punishment of criminal acts such acts in exclusive
jurisdiction
areas could not be punished, suggest the existence in
that
time of a similar belief that in the absence of appropriate
Federal
statutes no civil law existed in such areas.
156
INTERNATIONAL LAW RULE: Adopted for areas
under Federal
legislative
jurisdiction.--In 1885 the United States Supreme Court
had
occasion to consider the case of Chicago, Rock Island & Pacific
Ry. v.
McGlinn, 114 U.S. 542, involving a cow which became a casualty
on a railroad
right-of way traversing fort Leavenworth reservation.
At the
time that the Federal Government had acquired legislative
jurisdiction
over the reservation a Kansas law required railroad
companies
whose roads were not enclosed by a fence to pay damages to
the
owners of all animals killed or wounded by the engines or cars of
the
companies without reference to the existence of any negligence.
A State
court had held the law applicable to the casualty involved in
the
McGlinn case. The United States Supreme
Court, in affirming the
judgment
of the State court, explained as follows its reasons for so
doing
(p. 546):
It is a general rule of public law,
recognized and acted upon by
the United States, that whenever
political jurisdiction and
legislative power over any territory are
transferred from one
nation or sovereign to another, the
municipal laws of the
country, that is, laws which are intended
for the protection of
private rights, continue in force until
abrogated or changed by
the new sovereign. By the cession public property passes from
one government to the other, but private
property remains as
before, and with it those municipal laws
which are designed to
secure its peaceful use and
enjoyment. As a matter of course,
all laws, ordinances, and regulations in
conflict with the
political character, institutions, and
constitution of the new
government are at once displaced. Thus,
upon a cession of
political jurisdiction
157
and legislative power--and the latter is
involved in the former-
-to the United States, the laws of the
country in support of an
established religion, or abridging the
freedom of the press, or
authorizing cruel and unusual
punishments, and the like, would
at once cease to be of obligatory force
without any declaration
to that effect; and the laws of the
country on other subjects
would necessarily be superseded by
existing laws of the new
government upon the same matters. But
with respect to other laws
affecting the possession, use and
transfer of property, and
designed to secure good order and peace
in the community, and
promote its health and prosperity, which are
strictly of a
municipal character, the rule is general,
that a change of
government leaves them in force until, by
direct action by the
new government, they are altered or
repealed. American
Insurance Co. v. Canter, 1 Pet. 542; Halleck,
International Law,
ch. 34, Sec. 14.
The rule thus defined by the court had
been applied previously
to
foreign territories acquired by the United States (American
Insurance
Company v. Canter, 1 Pet. 511 (1828)), but not until the
McGlinn
case was it extended to areas within the States over which
the
Federal Government acquired exclusive legislative jurisdiction.
The
McGlinn case has been followed many times, of course; adoption of
the
international
158
law
rule for areas under exclusive legislative jurisdiction has
filled
a vacuum which would otherwise exist in the absence of Federal
legislation,
and furnishes a code of civil law for Federal enclaves.
Federalizes State civil law, including
common law.--The rule
serves
to federalize not only the statutory but the common law of a
State. Kniffen v. Hercules Powder Co., 164 Kan.
196, 188 P.2d 980
(1948);
Kaufman v. Hopper, 220 N.Y. 184. 115 N.E. 470 (1917), see
also
151 App. Div. 28, 135 N.Y.Supp. 363 (1912), aff'd., 163 App.
Div.
863, 146 N. Y. Supp. 1096 (1914); Norfolk & P.B.L.R. v. Parker,
152 Va.
484, 147 S.E. 461 (1929); Henry Bickel Co. v. Wright's
Administratrix,
180 Ky. 181, 202 S.W. 672 (1918). But it applies
merely
to the civil law, not the criminal law, of a State. In re
Ladd,
74 Fed. 31 (C.C.D.Neb., 1896). See also
22 Calif. L. Rev. 152,
164
(1934).
Only laws existing at time of
jurisdiction transfer
federalized.--It
should be noted, however, that the international law
rule
brings into force only the State laws in effect at the time the
transfer
of legislative jurisdiction occurred, and later State
enactments
are not effective in the Federal enclave.
So, in
159
Arlington
Hotel Company v. Fant, 278 U.S. 439 (1929), the court
charged
an innkeeper on a Federal reservation at Hot Springs,
Arkansas,
with liability s an insurer of his guests' personal
property
against fire, under the common law rule, which was in effect
in that
State at the time legislative jurisdiction had passed to the
United
States over he area involved, although Arkansas, like most or
all
States, had subsequently modified this rule by statute so as to
require
a showing of negligence. The
non-applicability to areas
under
exclusive Federal legislative jurisdiction of State statutes
enacted
subsequent to the transfer of jurisdiction to the Federal
Government
has the effect that the civil law applicable in such areas
gradually
becomes obsolete, as demonstrated by the Arlington Hotel
Co.
case, since the Federal Government has not legislated for such
areas
except in the minor particulars already mentioned.
CIRCUMSTANCES WHEREIN FORMER STATE LAWS
INOPERATIVE: (A). By
action
of the Federal Government.--That an act of Congress may
constitute
the "direct action of the new government" mentioned in the
McGlinn
case which will in validate former State laws in an area over
which
exclusive legislative jurisdiction has been transferred to the
Federal
Government apparently has not been the subject of litigation,
undoubtedly
because the matter is so fundamental and self-evi-
160
dent. In Webb v. J.G. White Engineering Corp., 204
Ala. 429, 85 So.
729
(1920), State laws relating to recovery for injury were held
inapplicable
to an employee of a Federal contractor on an exclusive
Federal
jurisdiction area on the ground that Federal legislation had
pre-empted
the field. It is not clear whether the
same result would
have obtained
in the absence of exclusive jurisdiction in the Federal
Government
over the area in which the injury occurred. The "direct
action
of the new government" apparently may be action of the
Executive
branch as well as of the Congress. In
the case of Anderson
v.
Chicago and Northwestern R.R., 102 Neb. 578, 168 N.W. 196 (1918),
the
facts were almost precisely as in the McGlinn case. However, the
War
Department had ordered the railroad not to fence the railroad
right-of-way
on the ground that such fencing would interfere with the
drilling and maneuver of troops. The defendant
railroad was held not
liable
in the absence of a showing of negligence.
The court said
(102
Neb. 584):
The war department has decided that the
fencing of the right of
way would impair the effectiveness of the
territory for the
purpose for which the cession was
made. That department
possesses peculiar and technical skill
and knowledge of the
needs of the nation in the training of
its defenders, and of the
necessary conditions to make the ceded territory fit for the
purpose for which it was acquired. It is not for the state or
its citizens to interfere with the
purposes for which control of
the territory was ceded, and, when the
defendant was forbidden
to erect the fences by that department of
the United States
government lawfully in control of the
161
reservation, no other citizen can
complain of non-performance of
held defendant guilty of a violation of
law.
(b)
Where activity by State officials required.--An apparent
exception
to the international law rule is concerned with State laws
which
require administrative activity on the part of State officials.
In Stewart
& Co. v. Sadrakula, 309 U.S. 94 (1940), the question was
presented
as to whether certain safety requirements prescribed by the
New
York Labor Law applied to a post office building which was being
constructed
in an area over which the Federal Government had
exclusive
legislative jurisdiction. An employee
of a contractor
engaged
in the construction of the New York City Post Office fell
from
the building and was killed. His
administratrix, in an action
of tort
against the contractor, narrowed the scope of the charges of
negligence
until there finally was alleged only the violation of a
subsection
of the New York Labor Law which required the planking of
floor
beams. The Supreme Court of the United
States, in upholding a
judgment
for the administratrix based upon a finding that the Labor
Law was
applicable, said (pp. 101-103):
It is urged that the provisions of the
Labor Law contain
numerous administrative and other
provisions which cannot be
relevant to federal territory. The Labor Law does have a number
of articles. Obviously much of their language is directed at
situations that cannot arise in the
territory. With the
domestication in the excised area of the
entire applicable body
of state municipal law much of the state
law must necessarily be
appropriate. Some sections authorize quasi-judicial proceedings
or administrative action and may well
have no validity in the
federal area. It is not a question here of the exercise of
state administrative authority in federal
territory. We do not
agree, however, that because the Labor
Law is not applicable as
a whole, it follows that none of its
sections are. We have in
Collins v. Yosemite Park Company that the
sections of a Cali-
162
fornia statute which levied excises on
sales of liquor in
Yosemite National Park were enforceable
in the Park, while
sections of the same statute providing
regulation of the Park
liquor traffic through licenses were
unenforceable.
In view of the decisions in the Sadrakula
and Gerrick cases, the
conclusion
is inescapable that State laws which contemplate or
require
administrative action are not effective under the
international
law rule. Clearly, the States receive
no authority to
operate
administrative machinery within areas under exclusive Federal
legislative
jurisdiction through the adoption of State law as Federal
law for
the areas. Therefore, adoption as
Federal law of a State law
requiring
administrative action would be of little effect unless the
Federal
Government also established administrative machinery
paralleling
that of the State. Instead of providing
for the
execution
of such State laws as Federal law, the Federal Government
has
authorized the States to extend the application of certain such
laws to
areas of exclusive Federal legislative jurisdiction. Thus,
as has
been indicated, the States have been authorized to extend
their workmen's
compensation and unemployment compensation laws to
such
Federal areas. However, little or no
provision has been made
for
either State of Federal administration of laws in various other
fields.
163
(c)
Inconsistency with Federal law.--In Hill v. Ring
Construction
Co., et al., 19 F.Supp. 434 (W.D.Mo., 1937), which
involved
a contract question, the court refused to give effect under
the
international law rule to a statute which had been in effect in
the State
involved at the time legislative jurisdiction was
transferred
to the federal Government. This statute
provided that
thirteen
and one-half cubic feet (rather than the mathematically
provable
27 cubic feet) constituted a cubic yard. In refusing to
apply the
statute, the court stated it was inconsistent with the
"national
common law" which, according to the court, provides that
"two
added to two were always four and a cubic yard was a cubic
yard." The court makes clear, however, that it
strained to this
conclusion.
There appears to be no reported decision except that in
the
Hill case, supra, wherein a State civil law has been declared in
applicable
as Federal law under the international law rule in an area
under
exclusive Federal jurisdiction because of its inconsistency
with
other law of the new Federal sovereign. There are similarly no
cases
holding State law applicable notwithstanding such
inconsistency. The rule, as it was definition the McGlinn
case, is
very
clear on this subject, however, and State civil laws
inconsistent
with Federal laws would fall under the international law
rule as
State criminal laws inconsistent with Federal laws fall under
the
Assimilative Crimes Act.
164
INTERNATIONAL LAW RULE IN RETROCESSION OF
CONCURRENT
JURISDICTION:
A question which has not as yet been considered by the
courts
is the extent to which, if to any, the international law rule
is
applicable to areas which had been subject to exclusive
legislative
jurisdiction, and over which concurrent jurisdiction has
been
retroceded to the State. The fact hat concurrent jurisdiction
only is
retroceded, would, as a matter of statutory construction,
suggest
that Federal law currently in effect in the area is
unaffected. The applicable Federal criminal laws would
not,
presumably,
be repealed or suspended by a retrocession of concurrent
jurisdiction,
nor any other Federal statutes which were enacted for
areas Federal legislative jurisdiction. Similarly, it might be
argued,
such retrocession of concurrent jurisdiction does not serve
to
repeal Federal laws which were adopted pursuant to the
international
law rule. While it is a seeming anomaly
to have two
sets of
laws governing civil matters, it seems no more anomalous than
to have
two sets of criminal laws applicable to the same crime, and
that,
it has been seen, is a state of fact, to which reasonably
satisfactory
adjustment appears to have been made.
However, an
adjustment
to two sets of civil laws would seen more difficult, and,
indeed,
perhaps it would not be entirely possible.
The
considerations
supporting a conclusion that laws federalized under
the
international law rule would not survive a retrocession of
concurrent
jurisdiction to the State have their bases in the fact
that
international law rule is applied as a matter of necessity, in
order
to avoid a vacuum in the area which has been the subject of the
jurisdictional
transfer. When the need for the
application of the
rule no
longer exists, it is logical to assume, the laws which have
been
adopted thereunder are no longer effective. merit of this
conclusion
rests on practical considerations as well as logic, and
these
considerations would seem to make the conclusion outweigh the
contrary
position, based solely on considerations of logic.
165
STATE AND FEDERAL VENUE DISCUSSED: The
civil laws effective in
an area
of exclusive Federal jurisdiction are Federal law,
notwithstanding
their derivation from State laws, and a cause arising
under
such laws may be brought in or removed to a Federal district
court
under sections 24 or 28 of the former Judicial Code (now
sections
1331 and 1441 of title 28, United States Code), giving
jurisdiction
to such courts of civil actions arising under the "* * *
laws *
* * of the United States" where the matter in controversy
exceeds
the sum or value of $3,000, exclusive of interest and costs.
Steele
v. Halligan, 229 Fed. 1011 (W.D.Wash., 1916).
To the same
effect
as the holding in the Steele case, and following the decisions
in the
McGlinn and Arlington Hotel Co. cases, were those in Coffman
v.
Cleveland Wrecking Co., et al., 24 F.Supp.
581 (W.D.Mo., 1938),
and in Jewell
v. Cleveland Wrecking Co. of Cincinnati, et al., 28
F.Supp.
366 (W.D.Mo., 1938), rev'd. on other grounds, 111 F.2d 305
(C.A.
8, 1940). In each of these it was
decided that laws of the
State
(Missouri) existing at the time of Federal acquisition of
legislative
jurisdiction over an area became "laws of the United
States"
within that area. However, in a related
case in the same
district
(Jewell v. Cleveland Wrecking Co., 28 F.Supp. (W.D.Mo.,
1938)),
another judge appears to have rejected this view of the law
on
grounds not entirely clear but having their bases in the fact that
the
trial in the McGlinn case, supra, occurred in a State court (it
involved
a transitory action).
Transitory actions may be brought in
State courts
notwithstanding
that they arise out of events occurring in an
exclusive
Federal jurisdiction area. Ohio River
contract Co. v.
Gordon,
244 U.S. 68 (1917). Indeed, unless
there is involved one of
166
the
special situations (admiralty, maritime, and prize cases,
bankruptcy
matters and proceedings, etc.), as to which Federal
district
courts are given original jurisdiction by chapter 85 of
title
18, United States Code, only State courts, and not Federal
district
courts, may take cognizance of an action arising out of
events
occurring in an exclusive Federal jurisdiction area unless the
matter
in controversy exceeds the sum or value of $3,000, exclusive
of
interest and costs. But State authority
to serve process in
exclusive
Federal jurisdiction areas is limited to process relating
to
activities occurring outside of the areas, although a number of
States
now reserve broader authority relating to service of process,
so that
unless process can be served on the defendant outside the
exclusive
Federal jurisdiction area it appears that even a transitory
action
arising in such an area could not be maintained in a State
court. In such a case it appears that no remedy
whatever exists,
even
with
167
respect
to a transitory cause of action, where the matter in
controversy
does not involve the Federal jurisdiction area, generally
is held
as not cognizable in State courts. So,
except, as local
actions
may come within the purview of the limited (except in the
District
of Columbia) authority of Federal district courts to
entertain
them, no remedy is available in many types of such actions
arising
in Federal exclusive jurisdiction areas. Divorce actions and
actions
for probate of wills, it will be seen, have constituted a
special
problem in this respect. Local actions
pending in the State
courts
at the time of transfer of legislative jurisdiction from a
State
to the Federal Government should be proceeded in to a
conclusion,
it has been held. Van Ness v. Bank of
the United States,
13 Pet.
15 (1839).
FEDERAL STATUTES AUTHORIZING APPLICATION
OF STATE LAW: As has
been
indicated, the federal Government has authorized the extension
of
State workmen's compensation and unemployment compensation laws to
areas
of exclusive legislative jurisdiction.
In addition, the States
have
been authorized to extend certain of their tax laws to such
areas. As a consequence, areas of exclusive
legislative jurisdiction
are as
completely subject to certain State laws as areas in which the
Federal
Government has only a proprietorial interest.
The operation
and
effect of the extension of these State laws is considered more
fully
in chapter VII.
CHAPTER VII
RELATION OF STATE TO FEDERAL
ENCLAVES
EXCLUSIVE FEDERAL JURISDICTION: States
basically without
authority.--When
the Federal Government has acquired exclusive
legislative
jurisdiction over an area, by any of the three methods of
acquired
such jurisdiction, it is clear that the State in which the
area is
located is without authority to legislate for the area or to
enforce
any of its laws within the area.
169
170
no legislative
jurisdiction over the area to which the milk was
delivered. In holding that California could not enforce
its
regulations,
the court said (pp. 294-295):
The exclusive character of the
jurisdiction of the United States
on Moffett Field is conceded. Article I, Sec. 8, clause 17 of
the Constitution of the United States
declares the Congress
shall have power "To exercise
exclusive Legislation in all Cases
whatsoever, over" the District of
Columbia, "and to exercise
like Authority over all Places purchased
by the Consent of the
Legislature of the State in which the
Same shall be, for the
Erection of Forts, Magazines, Arsenals,
dock-Yards, and other
needful Buildings; * * *."
When the federal government acquired the
tract, local law not
inconsistent with federal policy remained
in force until altered
by national legislation. The state statute involved was adopted
long after the transfer of sovereignty
and was without force in
the enclave. It follows that contracts to sell and sales
consummated within the enclave cannot be
regulated by the
California law. To hold otherwise would be to affirm that
California may ignore the Constitutional
provision that "This
Constitution, and the laws of the United
States which shall be
made in Pursuance thereof; * * * shall be
the supreme Law of the
Land; * * *." It would be a denial of the federal power
"to
exercise exclusive
Legislation." As respects such
federal
territory Congress has the combined
powers of a general and a
state government.
The answer of the State and of the court
below is one of
confession and avoidance,--confession tat
the law in fact
operates to affect action by the
appellant within federal
territory, but avoidance of the
conclusion of invalidity by the
assertion that the law in essence is the
regulation of conduct
wholly within the state's jurisdiction.
171
The court below points out that the
statute regulates only the
conduct of California's citizens within
its own territory; that
it is the purchasing, handling, and
processing by the appellant
in California of milk to be sold below
the fixed price--not the
sale on Moffett Field--which is
prohibited, and entails the
penalties prescribed by the statute. And reliance is placed
upon the settled doctrine that a state is
not disenabled from
policing its own concerns, by the mere
fact that its regulations
may beget effects on those living beyond
its borders. We think,
however, that it is without application
here, because of the
authority granted the federal government
over Moffett Field.
In the light of the history of the
legislation, we are
constrained to find that the true purpose
was to punish
California's own citizens for doing in
exclusively federal
territory what by the law of the United States
was there lawful,
under the guise of penalizing preparatory
conduct occurring in
the State, to punish the appellant for a
transaction carried on
under sovereignty conferred by Art. In
Sec. 8, clause 17 of the
Constitution, and under authority
superior to that of California
by virtue of the supremacy clause.
In the Pennsylvania case, which involved
an area not subject to
exclusive
legislative jurisdiction, a contrary conclusion was
reached. The court said (p. 269):
172
We may assume that Congress, in aid of
its granted power to
raise and support armies, Article I, Sec.
8, cl. 12, and with
the support of the supremacy clause,
Article VI, Sec. 2, could
declare State regulations like the
present inapplicable to sales
to the government. * * * But there is no clause of the
Constitution which purports, unaided by
Congressional enactment,
to prohibit such regulations, and the
question with which we are
now concerned is whether such a prohibition is to be implied
from the relationship of the two
governments established by the
Constitution. We may assume also that, in
this absence of
Congressional consent, there is an
implied constitutional
immunity of the national government from
state taxation and from
state regulation of the performance, by
federal officers and
agencies, of governmental functions. * *
* But those who
contract to furnish supplies or render services
to the
government are not such agencies and do
not perform governmental
functions, * * * and the mere fact that
non-discriminatory
taxation or regulation of the contractor
imposes an increased
economic burden on the government is no
longer regarded as
bringing the contractor within any
implied immunity of the
government from state taxation or
regulation.
173
In each of the Dairy case there were
dissents. A dissent in the
Pennsylvania
case based on the ground that, in the view of the
dissenting
justice, Congressional policy contemplated securing milk
at a
price freely determined by competitive forces, and that, since
the
Pennsylvania regulation prevented the fruition of that policy, it
was
invalid. In two dissents in the
California case, views were
expressed
which, if adopted, would require congressional action
undertaking
the exercise of jurisdiction over an area purchased with
the
consent of the State before the jurisdiction of the State would
be
ousted. It is emphasized that these
views do not represent the
state
of the law. In one dissent it was said
(pp. 305-306):
The "exclusive legislation"
clause has not been regarded as
absolutely exclusory, and no convincing
reason has been advanced
why the nature of the federal power is
such that it demands that
all state legislation adopted subsequent
to the acquisition of
an enclave must have no application in
the area. * * *
If Congress exercises its paramount
legislative power over
Moffett Field to deny California the
right to do as it has
sought to do here, the matter is of
course at an end. But until
Congress does so, it should be the aim of
the federal military
procurement officers to observe statutes
such as this
established by state action in
furtherance of the public health
and welfare, and otherwise so conduct
their affairs as to
promote public confidence and good will.
The evident suggestion in this statement
that the Federal
Government
must exercise its exclusive jurisdiction before State
jurisdiction
is ousted apparently is without Federal jurisdiction
precedent. Moreover, this view would, if carried to its
logical
conclusion,
undermine the basis for the international law rule and
render
unnecessary the application of the rule to areas subject to
exclusive
legislative jurisdiction, since it would
174
seem
that, under this view, the laws of the State governing matters
on
which the Federal Government had not legislated would be fully
effective
in such areas. Finally, in view of the
opinion expressed
by the
majority of the Court in the Pennsylvania case that Congress
could
direct noncompliance with the State regulation involved in that
case,
the dissenting justice's suggestion that noncompliance in areas
of
exclusive legislative jurisdiction must be based on a similar
congressional
direction would, it seems, serve to nullify legal
distinctions
between the two types of areas.
In a second dissent in the California
case, there were expressed
views
somewhat similar to those indicated above.
The other
dissenting
justice stated (p. 300):
Enough has been said to show that the
doctrine of "exclusive
jurisdiction" over federal enclaves
is not an imperative. The
phrase is indeed a misnomer for the
manifold legal phases of the
diverse situations arising out of the
existence of federally-
owned lands within a state--problems calling
not for a single,
simple answer but for disposition in the
light of the national
purposes which an enclave serves. If Congress speaks, state
power is of course determined by what
Congress says. If
Congress makes the law of the state in
which there is a federal
site as foreign there as is the law of
China, then federal
jurisdiction would really be
exclusive. But short of such
Congressional assertion of overriding
authority, the phrase
"exclusive jurisdiction" more
often confounds than solves
problems due to our federal system.
This
suggestion that congressional action is an imperative to
establish
exclusive Federal legislative jurisdiction is, of course,
subject
to the same comment as is applicable to similar views
expressed
by the other dissenting justice.
However, the second
dissenting
justice also deplored the varied results which are
effected
by different degrees of Federal jurisdiction, and
175
after citing
some incongruities which might arise, he stated (p.
302):
These are not far-fetched
suppositions. They are the inevitable
practical consequences of making decision
here depend upon
technicalities of "exclusive
jurisdiction"--legal subtleties
which may become relevant in dealing with
prosecution for crime,
devolution of property, liability for
torts, and the like, but
which as a matter of good sense surely
are wholly irrelevant in
defining the duty of contracting officers
of the United States
in making contracts in the various States
of the Union, where
neither Congress nor the authoritative
voice of the Army has
spoken.
In the absence of such assertion of superior authority,
state laws such as those here under
consideration appear, as a
matter of sound public policy, equally
appropriate whether the
federal territory encysted within a state
be held on long or
short term lease or be owned by the
Government on whatever terms
of cession may have been imposed.
The majority opinion in the California
case anticipated the
dissents
and alluded to the suggestions contained in them as follows
(pp.
295-296):
We have this day held in Penn Dairies v.
Milk Control
Commission, ante, p. 261, that a
different decision is required
when the contract and the sales occur
within a state's
jurisdiction, absent specific national
legislation excluding the
operation of the state's regulatory
laws. The conclusions may
seem contradictory; but in preserving the balance between
national and state power, seemingly
inconsequential differences
often require diverse results. This must be so, if we are to
accord to various provisions of
fundamental law their natural
effect in the circumstances
disclosed. So to do is not to make
subtle or technical distinctions or o
deal in legal refinements.
Here we are bound to respect the relevant
176
constitutional provision with respect to
the exclusive power of
Congress over federal lands. As Congress may, if it find the
national interest so requires, override
the state milk law of
Pennsylvania as respects purchases for
the Army, so it may, if
not inimical to the same interest subject
its purchasing
officers on Moffett Field to the
restrictions of the milk law of
California. Until it speaks we should enforce the limits of
power imposed by the provisions of the
fundamental law.
The companion Dairy case are significant in a number of
respects. They illustrate sharply the effects of
exclusive
legislative
jurisdiction in curbing the authority of the States.
Quite
clearly, they establish that the law of the State has no
application
in an area of exclusive legislative jurisdiction, and
that
such exclusion of State authority rests on the fact of exclusive
legislative
jurisdiction; it is unnecessary for Congress to speak to
effect
that result. Such jurisdiction serves to
exclude not only the
operation
of State laws which constitute an interference with a
Federal
function, but also the application of State laws which are
otherwise
not objectionable on constitutional grounds.
The Dairy case are also significant in that
they indicate some
disposition,
as on the part of the justices constituting a minority
of the
court in the California case, to regard exclusive legislative
jurisdiction
as not constituting a barrier to the application of
State
law absent an expression by Congress that such barrier shall
exist. Such a view constitutes, it seems clear, a
sharp departure
from
overwhelming precedent, and serves to blur the historical legal
distinctions between areas of exclusive legislative
jurisdiction and
areas
in which the Federal Government has only a proprietorial
interest.
The views of the majority of the Supreme
Court in the California
case
are in accord with other decisions which have considered the
effects
of exclusive legislative jurisdiction on
177
the
authority of the State with respect to the area subject to such
jurisdiction.
Authority to tax excluded.--Exclusive
Federal legislative
jurisdiction,
it seems well settled, serves to immunize from State
taxation
privately owned property located in an area subject to such
jurisdiction.
[part of this page is
missing]
178
ter is
Surplus Trading Co. v. Cook, 281 U.S. 647 (1930), wherein the
Supreme
Court held that Arkansas was without authority to tax
privately
owned personal property located on a military reservation
which
was purchased by the Federal Government with the consent of the
legislature
of the State in which it was located.
The Supreme Court
based
its conclusion on the following proposition of law (p. 652):
It long has been settled that where lands
for such a purpose are
purchased by the United States with the
consent of the state
legislature the jurisdiction theretofore
residing in the State
passes, in virtue of the constitutional
provision [viz., article
I, section 8, clause 17], to the United
States, thereby making
the jurisdiction of the latter the sole
jurisdiction.
In
reaching its conclusion, the Supreme Court cited early cases such
as
Commonwealth v. Clary, 8 Mass. 72 (1811); Mitchell v. Tibbetts, 17
Pick
298 (Mass., 1839); United States v. Cornell, 25 Fed.Cas. 646,
No.
14,867 (C.C.D.R.I., 1819); and Sinks v. Reese, 19 Ohio St. 306
(1869). The Supreme Court also quoted with approval
the statement
which
was made in reliance on these same early cases in Fort
Leavenworth
R.R. v. Lowe, supra, at 537:
These authorities are sufficient to
support the proposition
which follows naturally from the language
of the Constitution,
that no other legislative power than that
of Congress can be
exercised over lands within a State
purchased by the United
States with her consent for one of the
purposes designated; and
that such consent under the Constitution
operates to exclude all
other legislative authority.
In the Cook case the area had been
purchased by the Federal
Government
with the consent of the legislature of the State,
jurisdiction
thereby passing to the United States under clause 17. In
Standard
Oil Company of California v. California, 291 U.S. 242
(1934),
the Supreme Court held that a cession of
179
exclusive
legislative jurisdiction to the Federal Government by a
State
also served to deprive the latter of the authority to lay a
license
tax upon gasoline sold and delivered to an area which was the
subject
of the jurisdictional cession.
180
Appellant challenges the validity of the
taxing act as construed
by the Supreme Court. The argument is that since the State
granted to the United States exclusive
legislative jurisdiction
over the Presidio, she is now without to
impose taxes in respect
of sales and deliveries made
therein. This claim, we think, is
well founded; * * *.
In Coleman Bros. Corporation v. City of
Franklin, 58 F.Supp. 551
(D.N.H.,
1945), aff'd. , 152 F.2d 527 (C.A. 1, 1945), cert. den., 328
U.S.
844, the same conclusion was reached with respect to the attempt
of a
city to tax the personal property used by a contractor in
constructing
a dam on an area of exclusive Federal legislative
jurisdiction,
and in Winston Bros. Co. v. Galloway, 168 Ore. 109, 121
P.2d
457 (1942), thee is distinguished the applicability of a tax on
net
earnings from work done by a Federal contractor on land over
which
the Federal Government did not have legislative jurisdiction,
and
that done on land over which it did have jurisdiction.
Other authority excluded.--Attempts on
the part of the States to
regulate
other activities in areas under Federal legislative
jurisdiction
have met with the same fate as attempts to control milk
prices
and to levy taxes. Thus, in In re Ladd,
181
74 Fed.
31 (C.C.D.Neb., 1896), it was held that the laws of Nebraska
requiring
a permit to sell liquor do not apply to areas of exclusive
legislative
jurisdiction. See also Farley v.
Scherno,
182
208
N.Y. 269, 101 N.E. 891 (1913). A State
cannot, without an
express
reservation of authority to do so, enforce in an area under
Federal
legislative jurisdiction the regulatory features of its
Alcoholic
Beverage Control Act. Collins v.
Yosemite Park Co., 304
U.S.
518 (1938). Nor may a State license,
under its Alcoholic
Beverage
Control Act, sale of liquor in an area which is within the
exterior
boundaries of the State but under exclusive Federal
jurisdiction. Peterson v. United States, 191 F.2d 154
(C.A. 9,
1951),
cert. den., 342 U.S. 885.
183
And, it appears, a State may not prevent,
tax, or regulate the
shipment
of liquor from outside of the State to an area within the
exterior
boundaries of the State but under exclusive Federal
legislative
jurisdiction. Johnson v. Yellow Cab
Transit Co., 321
U.S.
383 (1944); see also State v. Cobaugh, 78 Me. 401 (1886); and
Maynard
& Child, Inc. v. Shearer, 290 S.W.2d 790 (Ky., 1956). But it
has
been held that a wholesaler may not make a shipment of liquor to
an area
within the same State which is subject to exclusive Federal
jurisdiction
under a license from the State to export liquor, nor to
an
unlicensed purchaser in the area where the wholesaler's license
for domestic
sales limited such sales to licensed purchasers.
McKesson
& Robbins v. Collins, 18 Cal. App. 2d 648, 64 P.2d 469
(1937). And an excise tax has been held applicable
to liquor sold to
(but
not by) retailers located on Federal enclaves, where the tax is
on
sales by wholesalers. Op.A.G., Cal., No. 10,255 (Oct. 8, 1935).
State laws (and local ordinances) which
provide for
administrative
action have no application to areas under exclusive
Federal
legislative jurisdiction. State and
local governments cannot
enforce
ordinances relating to licenses, bonds, inspections, etc.,
with
respect to construction in areas under exclusive
184
Federal
jurisdiction. Oklahoma City, et al. v.
Sanders, 94 F.2d 323
(C.A.
10, 1953); Op. A.G., N.M., Mo. 5340 (Mar. 6, 1951); id. No.
5348
(Mar. 29, 1951); see also Birmingham v. Thompson, 200 F.2d 505
(C.A.
5, 19522). Other State and local
licensing provisions are also
inapplicable
in such areas. A State cannot enforce
its game laws in
an area
where exclusive legislative jurisdiction over wildlife has
been
ceded to the United States. Chalk v. United States, 114 F.2d 207
(C. A.
4, 1940), cert. den., 312 U.S. 679.
185
None of the laws of a State imposing
special duties upon its
residents
are applicable to residents of areas under exclusive
Federal
legislative jurisdiction. In one of the
very earliest cases
relating
to exclusive Federal legislative jurisdiction, it was stated
that
inhabitants of such areas are not "held to pay any taxes imposed
by its
[i.e. the State's] authority, nor bound by any of its laws,"
and it
was reasoned that it might be very inconvenient to the United
States
to have "their laborers, artificers, officers, and other
persons
employed in their service, subjected to the services required
by the
Commonwealth of the inhabitants of the several towns."
Commonwealth
v. Clary, 8 Mass. 72 (1811). A State
statute requiring
residents
of the State to work on State roads is not applicable to
residents
of an area subject to exclusive Federal legislative
jurisdiction. 16 Ops. A. G. 468 (1880); Pundt v.
Pendleton, 167 Fed.
997
(N.D.Ga., 1909).
But in Bailey v. Smith, 40 F.2d 958
(S.D.Iowa), it was held that
a
resident of an exclusive Federal jurisdiction area was not exempt
under a
State automobile registration law which exempted persons who
had
complied with registration laws of the State, territory, or
Federal
district of their residence, the term "Federal district"
being
construed to apply only to the District of Columbia, and the
United
States Supreme Court has upheld a requirement for registration
with
the State under similar circumstances.
Storaasli v. Minnesota,
283
U.S. 57 (1931). See also Valley County
v. Thomas, 109 Mont. 345,
97 P.2d
345 (1939).
186
Status of State and municipal
services.--The Comptroller General
of the
United States consistently and on a number of occasions has
disapproved
proposed payment by the federal Government to a State or
local
government of funds for fire-fighting on a Federal
installation,
either for services already rendered or for services to
be
rendered on a contractual basis. In support of his position he has
maintained
that there exists a legal duty upon municipal or other
fire-fighting
organizations to extinguish fires within the limits of
their
municipal or other boundaries. He has
not, in his decisions on
these
matters, distinguished between areas which are and those which
are not
under the legislative jurisdiction of the United States.
The Comptroller General has indicated
that his views relating to
fire-fighting
extend too her similar services ordinarily rendered by
or
under the authority of a State. See 6
Comp. Gen. 741 (1927);
Comp.
Gen. Dec. B-50348 (July 6, 1945); cf. id. B-51630 (Sept. 11,
1945),
where estimates and hearings made clear that an appropriation
act was
to cover cost of police and fire protection under agreements
with
municipalities. In disapproving a
proposed payment to a
municipality
for fir-fighting services performed on a Federal
installation,
he said (24 Comp. Gen. 599, 603):
* * * if a city may charge the Federal
Government for the
service of its fire department under the
circumstances here
involved, would it not follow that a
charge could be made for
the service of its police department, the
services of its
street-cleaning department and all
similar service usually
rendered by a city for the benefit and
welfare of its
inhabitants.
187
No court decisions dealing directly with
questions of obligation
for the
rendering of State and municipal services to Federal
installations
have been found. It would appear,
however, with
respect
to Federal areas over which a State exercises legislative
jurisdiction,
that while the furnishing of fire-fighting and similar
services
would be a matter for the consideration of officials of the
State
or a local government, the obligation to furnish them would be
a
concomitant of the powers exercised by those authorities within
such
areas (Comp. Gen. Dec. B-126228 (Jan. 6, 1956).
It may be noted that the Congress has
provided authority for
Federal
agencies to enter into reciprocal agreements with fire-
fighting
organizations for mutual aid in furnishing fire protection,
and,
further, for Federal rendering of emergency fire-fighting
assistance
in the absence of a reciprocal agreement.
Service of process.--It has been held
many times that the
reservation
by a State (or the grant to the States by the United
States)
of the right to serve process in an area is not inconsistent
with
Federal exercise of exclusive jurisdiction over the area. In
each of
the instances in which the consistency with exclusive Federal
jurisdiction
of a State's right to save process has been upheld,
however,
either the State had expressly reserved this right or the
Congress
had authorized such service. It seems entirely probable that
in the
absence of either a reservation of a Federal statutory
authorization
covering the matter a State would have no greater
authority
to serve process
188
in an
area of exclusive Federal jurisdiction than it does in an area
beyond
its boundaries. It has bee so held by
the Attorney General.
STATE RESERVATIONS OF JURISDICTION: In
general.--In ceding
legislative
jurisdiction to the Federal Government, and also in
consenting
to the purchase of land by the Federal Government pursuant
to
article I, section 8, clause 17, of the Constitution, it is a
common
practice of the States to reserve varying quanta jurisdiction.
There is now firmly established the legal
and constitutional
propriety
of reservations of jurisdiction in State consent and
cession
statutes. Subject to only one general
limitation, a State
has
unlimited discretion in determining the character and scope of
the
reservation which it desires to include in such statutes. The
sum and
substance of the limitation appears to be that a State may
not by
a reservation enlarge its authority with respect to the area
in
question; or, to put it conversely, that a reservation of
jurisdiction
by a State may not diminish or detract from the power
and
authority which the Federal Government possesses in the absence
of a
transfer to it of legislative jurisdiction.
Reservations construed.--State
reservations of jurisdiction have
presented
few legal problems. In no instance has
a State reservation
of
jurisdiction been invalidated, or its scope nar-
189
rowed,
on the ground that its effect was to enlarge the power of the
State
or to interfere with the functions of the Federal Government.
Instead,
the reported cases involving such reservations have
presented
questions concerning the scope of the reservation actually
made. Thus, in Collins v. Yosemite Park Co., 304
U.S. 518 (1938), it
was
held that a reservation by a State of the right to tax the sale
of
liquor does not include the right to enforce the regulatory
features
of the State's alcoholic beverage control act in an area in
which,
except inter alia the right to tax, the tax, the entire
jurisdiction
of the State had been ceded to the Federal Government.
Similarly,
in Birmingham v. Thompson, 200 F.2d 505 (C.A. 5, 1952), it
was
held that even though the State, in ceding jurisdiction to the
Federal
Government, reserved the right to tax persons in the area
over
which jurisdiction had been ceded, a city could not require the
payment
of a license fee by a contractor operating in the area where
issuance
of the license was coupled with a variety of regulatory
provisions. The results reached in these two cases
suggest that
State
statutes transferring jurisdiction will be construed strictly.
Only
those matters expressly mentioned as reserved will remain
subject
to the jurisdiction of the State.
190
AUTHORITY OF THE STATES UNDER FEDERAL
STATUTES: In general.--In
order
to ameliorate some of the practical consequences of exclusive
legislative
jurisdiction, Congress has enacted legislation permitting
the
extension and application of certain State laws to areas under
Federal
legislation jurisdiction. Thus,
Congress has authorized the
States
to extend to such areas certain State taxes on motor fuel (the
so-called
"Lea Act," 4 U.S.C. 104); to apply sales, use, and income
taxes
to such areas (the so-call "Buck Act," 4 U.S.C. 105 et seq.);
to tax
certain private leasehold interests on Government owned lands
(the
so-called "Military Leasing Act of 1947," 61 Stat. 774); and to
extend
to federal areas their workmen's compensation and unemployment
compensation
laws (26 U.S.C. 3305 (formerly 1606), subsec. (d), and
act of
June 25, 1936, 49 Stat. 1938, 40 U.S.C. 290, respectively).
Congress
has also enacted a statute retroceding to the States
jurisdiction
pertaining to the administration of estates of decedent
residents
of Veterans' Administration facilities, and, from time to
time,
various legislation providing for Federal exercise of less than
exclusive
jurisdiction in specific areas where conditions in the
particular
area or the character of the Federal undertaking thereon
indicated
the desirability of the extension of a measure of the
State's
jurisdiction to such areas.
Lea Act.--A 1936 statute, variously known
as the Lea Act and the
Hayden-Cartwright
Act, amended the Federal Highway Aid Act of 1916,
by
providing (section 10):
That all taxes levied by any State, Territory
or the District of
Columbia upon sales of gasoline and other
motor
191
vehicle fuels may be levied, in the same
manner and to the same
extent, upon such fuels when sold by or
through post exchanges,
ship stores, ship service stores,
commissaries, filling
stations, Licensed traders, and other
similar agencies, located
on United States military or other
reservations, when such fuels
are not for the exclusive use of the
United States. * * *
The
legislative history of this particular section of the act is
meager
and appears to be limited to matter contained in the
Congressional
record. It is indicated that the
language of this
section
was sponsored by organizations of State highway and taxing
officials. An amendment comprised of this language was
offered by
Senator
Hayden, of arizona, and was read and passed by the Senate
without
question or debate. It is logical to
assume that the
amendment
was inspired by the decision of the Supreme Court in the
Standard
Oil Company case discussed on page 178, above.
Under this section, as it was amended by
the Buck Act in 1940,
States
are given the right to levy and collect motor vehicle fuel
taxes
within Federal areas, regardless of the form of such taxes, to
the
same extent as though such areas were not Federal, unless the
fuel is
for the exclusive use of the Federal Government. Sanders v.
Oklahoma
Tax Commission, 197 Okla. 285, 169 P.2d 748 (1946), cert.
den.,
329 U.S. 780. Sales to Government
contractors are taxable
under
the act, but not sales to Army post exchanges, which are arms
of the
192
Federal
Government and partake of its immunities under this act.
Buck Act.--Four years later, in 1940, Congress
enacted a
retrocession
statute of wide effect. This law,
commonly known as the
Buck
Act, retroceded to the States partial jurisdiction over Federal
areas
so as to permit the imposition and collection of State sale and
use
taxes and income taxes within Federal areas. The Federal
Government
and its instrumentalities were excepted.
The House of Representatives passed a
bill during the first
session
of the 76th Congress which embodied nearly all of relating to
the
collection of income taxes from Federal employees residing on
Federal
enclaves and to an amendment of the Hayden-Cartwright Act of
1936. These additional matters were added as
amendments to the House
bill
after Senate hearings were held. The
intent behind the House
bill,
passed during the first session of the 76th Congress, as stated
in the
report accompanying the bill to the floor was:
The purpose of H.R. 6687 is to provide
for uniformity in the
administration of State sales and use
taxes within as well as
without Federal areas. It proposes to authorize the levy of
State taxes with respect to or measured
by sales or purchases of
tangible personal property on Federal
areas. The taxes would in
the vast majority of cases be paid to the
State by sellers whose
places of business are located off the
Federal areas and who
make sales of property to be delivered in
such areas.
The application of such taxes to the
gross receipts of a
retailer from sales in which delivery is
made to an area
193
over which it is asserted the United
States possesses exclusive
jurisdiction is being vigorously
contested even though the
retailer's place of business is located
off the Federal area and
the negotiations leading to the sale are
conducted and the
contract of sale is executed at the
retailer's place of
business. Despite the existence of these facts, which are
generally sufficient to give rise to
liability for the tax, and
which, insofar as the theory of the tax
is concerned, should, in
the opinion of your committee, be
sufficient to impose tax
liability, exemption from the tax is
asserted upon the ground
that title to the property sold passes on
the Federal area and,
accordingly, the sale occurs on land
which the State lacks
authority.
Passage of this bill will clearly
establish the authority of the
State to impose its sales tax with
respect to sales completed by
delivery on Federal areas, and except
insofar as the State tax
might be a prohibited burden upon the
United States would not,
with the exception hereinafter noted,
impose any duty upon any
person residing or located upon the
Federal area. Such action
would merely remove any doubt which now
exists concerning the
authority of the State to require
retailers located within the
State and off the Federal areas to report
and pay the tax on the
gross receipts from their sales in which
delivery is made to a
Federal area. A minor
problem presented with respect to the
application of State sales taxes on
Federal areas involves the
responsibility for such taxes of post
exchanges, shop-service
stores, commissaries, licensed traders,
and other similar
agencies operating on Federal areas.
Congress, in the amendment of section 10
of the Hayden-
Cartwright act, provided for the
application of motor-vehicle
fuel taxes with respect to the sales or
distributions of such
agencies. It would appear therefore to be entirely proper to
provide for the application of sales
194
taxes with respect to the retail sales of
tangible personal
property of such agencies.
The State have been extremely generous in
granting to the United
States exclusive jurisdiction over
Federal areas in order that
any conflicts between the authority of
the United States and a
State might be avoided. It would appear to be an equally sound
policy for the United States to prevent the avoidance of State
sales taxes with respect to sales on
Federal areas by
specifically authorizing, except insofar
as the taxes may
constitute a burden upon the United
States, the application of
such taxes on those areas.
The
House bill was amended by the Senate and therefore certain
portions
of this report must be read in the light of senate changes
in the
bill.
The report of the Senate committee on
finance which considered
the
House bill is also most informative in regard to the intent of
Congress
in enacting the law. The Senate report
gives the reasons
for the
general provision on the application of State sales and use
taxes
to Federal enclaves as:
Section 1 (a) of the committee amendment
removes the exemption
from sales or use taxes levied by a
State, or any duly
constituted taxing authority in a State,
where the exemption is
based solely on the ground that the sale
or use, with respect to
which such tax is levied, occurred in
whole or in part within a
Federal area. At the present time exemption from such taxes is
claimed on the ground that the Federal
Government has exclusive
jurisdiction over such areas. Such an exemption may be claimed
in
the following types of cases: First, where the seller's place
of business is within the Federal area
and a transaction occurs
there, and, second, where the seller's
place of business is
outside the Federal area but delivery is
made in Federal area
and payment received there.
195
This section will remove the right to
claim an exemption because
of the exclusive Federal jurisdiction
over the area in both
these situations. The section will not affect any right to
claim any exemption from such taxes on
any ground other than
that the Federal Government has exclusive
jurisdiction over the
area where the transaction occurred.
This section also contains a provision
granting the State or
taxing authority full jurisdiction and
power to levy and collect
any such sale or use tax in any Federal
area within such State
to the same extent and with the same
effect as though such area
was not a federal area. This additional authorization was
deemed to be necessary so as to make it
clear that the State or
taxing authority had power to levy or
collect any such tax in
any Federal area within the State by the
ordinary methods
employed outside such areas, such as by
judgment and execution
thereof against any property of the
judgment-debtor.
The provision relating to the application
of State income taxes
to
persons residing within a Federal area or receiving income from
transaction
occurring on or service performed in a Federal area is
explained
in the Senate report on the rationale that:
Section 2 (a) of the committee amendment
removes the exemption
from income taxes levied by a State, or
any duly constituted
taxing authority in a State, where the
exemption is based solely
on the ground that the taxpayer resides
within a Federal area or
receives performed in such area. One of the reasons for
removing the above exemption is because of
an inequity which has
arisen under the Public Salary tax Act of
1939. Under that act
a State is permitted to tax the
compensation of officers and
employees reside or are domiciled
196
in that State but is not permitted to tax
the compensation of
such officers and employees who reside
within the Federal areas
within such State. For example, a naval officer who is ordered
to the Naval Academy for duty and is
fortunate enough to have
quarters assigned to him within the Naval
academy grounds is
exempt from the Maryland income tax
because the Naval Academy
grounds are a Federal area over which the
United States has
exclusive jurisdiction; but his less
fortunate colleague, who is
also ordered there for duty and rents a
house outside the
academy grounds because no quarters are available inside, must
pay the Maryland income tax on his
Federal salary. Another
reason for removing the above exemption,
is that under the
doctrine laid down in James v. Dravo
Contracting Co. (302 U.S.
134, 1937), a State may tax the income or
receipts from
transactions occurring or services
performed in an area within
the State over which the United States
and the State exercise
concurrent jurisdiction but may not tax
such income or receipts
if the transactions occurred or the
services were performed in
an area within the State over which the
United States has
exclusive jurisdiction.
This section contains, for the same reasons, a similar provision
to the
one contained in section 1 granting the State or taxing
authority
full jurisdiction and power to levy and collect any such
income
tax in any federal area within such State to the same extent
and
with the same effect as though such area was not a Federal area.
During the 1940 Senate hearings on the
House bill,
representatives
of the War and Navy Departments expressed opposition
to
certain features of the bill. Vigorous
attack was made on an
aspect
of the original bill which would have permitted the
application
of State sales taxes on retail sales of tangible personal
property
by post exchanges, ship-service stores and
197
commissaries. These objections were the apparent cause of
an
amendment
which was explained by the Senate committee as follows:
Section 3 of the committee amendment
provides that sections 1
and 2 shall not be deemed to authorize
the levy or collection of
any tax on or from the United States or
any instrumentality
thereof.
This section also provides that sections 1 and 2 shall
not be deemed to authorize the levy or
collection of any tax
with respect to sale, purchase, storage,
or use of tangible
personal property sold by the United
States or any
instrumentality thereof to any authorized
purchaser. An
authorized purchaser being a person who
is permitted, under
regulations of the Secretary of War or
Navy, to make purchases
from commissaries, ship's stores, or voluntary unincorporated
organizations of Army or Navy personnel,
such as post exchanges,
but such person is deemed to be an
authorized purchaser only
with respect to such purchases and
is not deemed to be an
authorized purchaser within the meaning
of this section when he
makes purchases from organizations other
than those heretofore
mentioned.
For example, tangible personal property
purchased from a
commissary or ship's store by an Army or
naval officer or other
person so permitted to make purchases
from such commissary or
ship's store, is exempt from the State
sales or use tax since
the commissary or ship's store is an
instrumentality of the
United States and the purchaser is an
authorized purchaser. If
voluntary unincorporated organizations of
Army and Navy
personnel, such as post exchanges, are
held by the courts to be
instrumentalities of the United States,
the same rule will apply
to similar purchases from such
organizations;
198
but if they are held not to be such
instrumentalities, property
so purchased from them will be subject to
the State sales or use
tax in the same manner and to the same
extent as if such
purchase was made outside a Federal
area. It may also be noted
at this point that if a post exchange is
not such an
instrumentality, it will also be subject
to the States income
taxes by virtue of section 2 of the
committee amendment.
It may
be noted that post exchanges and certain other organizations
attached
to the armed forces have been judicially determined to be
Federal
instrumentalities. It should also be
noted that the
exemption
provision of the Buck Act was amended somewhat by the act
of
September 3, 1954, 68 Stat. 1227.
199
One of the Navy officers testifying at
the Senate hearing raised
a
question as to the effect on the Federal criminal jurisdiction over
federal
areas of a grant to the States of concurrent jurisdiction for
tax
matters. The Attorney General of the
United States raised the
same
question in commenting on the bill by letter to the Chairman of
the
Senate Finance Committee:
From the standpoint of the enforcement of
the criminal law, the
legislation may result in an
embarrassment which is probably
unintended. Criminal jurisdiction of the Federal courts is
restricted to Federal reservations over
which the Federal
Government has exclusive jurisdiction, as
well as to forts,
magazines, arsenals, dock-yards, or other
needful buildings
(U.S.C., title 18, sec. 451, par.
3d). A question would arise
as to whether, by permitting the levy of
sales and personal-
property taxes on Federal reservations,
the Federal Government
has ceded back to the States its
exclusive jurisdiction over
Federal reservations and has retained
only concurrent
jurisdiction over such areas. The result may be the loss of
federal criminal jurisdiction over
numerous reservations, which
would be deplorable.
After
considerable discussion and deliberation the issue was resolved
by a
Senate committee amendment to the House bill adding the
following
provision (54 Stat., at p. 1060):
Section 4. The provisions of this Act shall not for the
purposes of any other provision of law be
deemed to deprive the
United States of exclusive jurisdiction
over any Federal area
over which it would otherwise have
exclusive jurisdiction or to
limit the jurisdiction of the United
States over any Federal
area.
The
committee explained that:
200
Section 4 of the committee amendment was
inserted to make
certain that the criminal jurisdiction of
Federal courts with
respect to Federal ares over which the
United States exercises
exclusive jurisdiction would not be
affected by permitting the
States to levy and collect sales, use,
and income taxes within
such areas. The provisions of this section are applicable to
all Federal areas over which the United
States exercises
jurisdiction, including such areas as may
be acquired after the
date of enactment of this act.
The Buck Act added certain amendments to
the Hayden-Cartwright
(Let)
Act. The 1940 Senate committee report
explained why those
changes
were considered necessary:
Section 7 (a) of the committee amendment
amends section 10 of
the Hayden-Cartwright Act so that the
authority granted to the
States by such section 10 will more
nearly conform to the
authority granted to them under section 1
of this act. At the
present time a State such as Illinois, which
has a so-called
gallonage tax on gasoline based upon the
privilege of using the
highways in that State, is prevented from
levying such tax under
the Hayden-Cartwright Act because it is
not a tax upon the
"sale" of gasoline. The amendments recommended by your
committee will correct this obvious
inequity and will permit the
levying of any such tax which is levied
"upon, with respect to,
or measured by, sales, purchases,
storage, or use of gasoline or
other motor vehicle fuels."
By the Buck Act Congress took a great
stride in the direction of
removing
the tax inequities which had resulted from the existence of
Federal
"islands" in the various States and, in addition, opened the
way for
the State and local governments to secure additional revenue.
In Howard v. Commissioners, 344 U.S. 624
(1953), the Supreme
Court
(by a divided court), expressed the view that the
201
Buck Act
authorized State and local taxes measured by the income or
earnings
of any party "receiving income from transactions occurring
or
service performed in such area * * * to the same extent and with
the
same effect as though such area was not a Federal area." The
Court
of appeals of Kentucky had held that this tax was not an
"income
tax" within the meaning of the Constitution of Kentucky but
was a
tax upon the privilege of working within the city of
Louisville. The Supreme Court, after stating that the issue
was not
whether
the tax in question was an income tax within the meaning of
the
Kentucky law, held that the tax in question was a tax "measured
by, net
income, gross income, or gross receipts," as authorized by
the
Buck Act. In a dissenting opinion, here
quoted in pertinent part
to
clarify this important issue in this case, it was stated (p. 629):
I have not been able to follow the
argument that this tax is an
"income tax" within the meaning
of the Buck Act. It is by its
terms a "license fee" levied on
"the privilege" of engaging in
certain activities. The tax is narrowly confined to salaries,
wages, commissions and to the net profits
of businesses,
professions, and occupations. Many kinds of income are
excluded, e.g., divi-
202
dends, interest, capital gains. The exclusions emphasize that
the tax is on the privilege of working or
doing business in
Louisville. That is the kind of a tax the Kentucky Court of
appeals held it to be. Louisville v. Sebree, 308 Ky. 420, 214
S.W.2d 248. The Congress has not yet granted local authorities
the right to tax the privilege of working
for or doing business
with the United States.
In another case in which a State claimed
taxing authority under
the
Buck Act, a steel company which occupied a plant under lease from
the
Federal Government was thereby held subject to a State occupation
tax
under the act. Carnegie-Illinois Steel
Corp. v. Alderson, 127
W.Va.
807, 34 S.E.2d 737 (1945), cert. den., 326 U.S. 764. It has
also
been held that a tax on gasoline received in a State, within a
Federal
area, was a "sales or use" tax within the purview of the act,
and
that by the act the Congress retroceded to States sufficient
sovereignty
over Federal areas within their territorial limits to
enable
them to levy and collect the taxes described in the act.
Davis
v. Howard, 306 Ky. 149, 290 S.W.2d 467 (1947).
In Maynard &
Child,
Inc. v. Shearer, 290 S.W.2d 790 (Ky., 1956), it was held that
an
import tax was not such a tax as Congress had consented to be
collected
by its enactment of the Buck Act. In
Bowers v. Oklahoma
Tax
Commission, 51 F.Supp. 652 (W.D. Okla., 1943), a construction
contractor
was held to "use" material incorporated into the work, so
as to
subject him to a State use tax pursuant to the Buck Act. The
Attorney
General of Wyoming has ruled that the State use tax was not
applicable
to an auto purchased out of the State for private use on
an exclusive
Federal jurisdiction area within the State.
Op.A.G.,
Wyo.
(Dec. 9, 1947).
There appear to be no other instances of
general importance in
which
the character of State taxes as within the purview of the Buck
Act has
been questioned in the courts.
203
An early, and leading, case relating to
the effect of the Buck
Act on
State taxing authority is Kiker v. Philadelphia, 346 Pa. 624,
31 A.2d
289 (1943), cert. den., 320 U.S. 741.
In that case there was
interposed
as a defense against application of an income tax of the
city of
Philadelphia, to a non-resident of the city employed in an
area
within the city limits but under the exclusive legislative
jurisdiction
of the United States, the fact that the non-resident
received
no quid pro quo for the tax. The court
found the
availability
of services to be an answer to this defense.
The court
also
appears to have overcome any difficulty, and in these matters
its
views apparently are sustained by the Howard case, supra, and
other
decisions, in objections raised to the application of the tax
in a
vigorous dissenting opinion in this case that (1) the city, as
distinguished
from the State, could not impose a tax under the Buck
Act,
and (2) that a State grant to the federal Government of
legislative
jurisdiction over an area placed such area outside the
sovereignty
(and individuals and property within the area beyond the
taxing
power) of the State.
Military Leasing Act of 1947.--The Wherry
Housing Act of
204
1949,
in pertinent part, makes provision for arrangements whereby
military
areas (including, of course, such areas under the exclusive
legislative
jurisdiction of the United States) may be leased to
private
individuals for the construction of housing for rental to
military
personnel. The authority to lease out
military areas for
the
construction of such housing was supplied by the Military Leasing
Act of
1947, a provision of which (section 6) read as follows:
The lessee's interest, made or created
pursuant to the
provisions of this Act, shall be made
subject to State or local
taxation. Any lease of property authorized under the provisions
of this Act shall contain a provision
that if and to the extent
that such property is made taxable by State and local
governments by Act of Congress, in such
event the terms of such
lease shall be renegotiated.
The
legislative histories of both the 1947 and the 1949 statutes are
devoid
of authoritative information for measuring the extent of the
taxing
authority granted to the States, with the result that
ambiguities
in the language of the statutes which shortly became
apparent
led a number of conflicting court decisions, and other at
least
seemingly inconsistent interpre-
205
tation. The ambiguity as to whether the federally
granted tax
authority
with respect to leasehold interests extended to such
interests
located on lands under the exclusive legislative
jurisdiction
of the United States was resolved, however, by the
decision
of the Supreme Court of the United States in the case of
Offutt
Housing Company v. Sarpy County, 351 U.S. 253 (1956). The
court
stated (p. 259):
* * * To be sure, the 1947 Act does not
refer specifically to
property in an area subject to the power
of "exclusive
Legislation" by Congress. It does, however, govern the leasing
of Government property generally and its
permission to tax
extends generally to all lessees' interests
created by virtue of
the Act.
The legislative history indicates a concern about loss
of revenue to the States and a desire to
prevent unfairness
toward competitors of the private
interests that might otherwise
escape taxation. While the latter consideration is not
necessarily applicable where military
housing is involved, the
former is equally relevant to leases for
military housing as for
any other purpose. We do not say that
this is the only
admissible construction of these
Acts. We could regard Art. I,
Sec. 8, cl. 17 as of such overriding and
comprehensive scope
that consent by Congress to state
taxation of obviously valuable
private interests located in an area
subject to the power of
"exclusive Legislation" is to
be found only in explicit
206
and unambiguous legislative
enactment. We have not heretofore
so regarded it, sec S.R.A., Inc. v.
Minnesota. 327 U.S. 558;
Baltimore Shipbuilding Co. v. Baltimore,
1095 U.S. 375, nor are
we constrained by reason to treat this
exercise by Congress of
the "exclusive Legislation"
power and the manner of construing
it any differently from any other
exercise by Congress of that
power.
This is one of cases in which Congress has seen fit not
to express itself unequivocally. It has preferred to use
general language and thereby requires the
judiciary to apply
this general language to a specific problem. To that end we
must resort to whatever aids to
interpretation the legislation
in its entirety and its history
provide. Charged as we are with
this function, we have concluded that the
more persuasive
construction of the statute, however
flickering and feeble the
light afforded for extracting its
meaning, it that the States
were to be permitted to tax private
interests, like those of
this petitioner, in housing projects
located on areas subject to
the federal power of "exclusive
Legislation." We do not hold
that Congress has relinquished this power
over these areas. We
hold only that Congress, in the exercise
of this power, has
permitted such state taxation as is
involved in the present
case.
The opinion of the Supreme Court in the
Offutt case, it seems
clear,
was restricted to an interpretation of the statutes involved,
with
particular reference tot he language of the quoted portion of
the opinion
any Federal statute authorizing a State to exercise power
previously
denied to it might be construed, in the absence of
indication
of a positive contrary legislative intent, as authorizing
the
exercise of such power not only outside of areas under exclusive
Federal
legislative jurisdiction, but also within such areas. Under
this
construction the States need not have awaited the enactment of
the
Buck Act before taxing the income of Federal employees in areas
under
exclu-
207
sive
Federal legislative jurisdiction, since Congress had previously
authorized
State taxation of incomes of Federal employees generally.
Workmen's compensation.--In 1936 there
was enacted a statute
permitting
the application of State workmen's compensation laws to
Federal
areas. Both House and Senate reports on
the bill contained
concise
explanatory remarks concerning the reasons for the act. The
House
report, the more extensive of the two, sets forth the
circumstances
which motivated congressional action.
The pertinent
portions
of the report are:
The Committee on Labor, to whom was
referred the bill (H.R.
12599) to provide more adequate
protection to workmen and
laborers on projects, buildings,
constructions, improvements,
and property wherever situated, belonging
to the United States
of America, by granting to several States
jurisdiction and
authority to enter upon and enforce their
State workmens'
compensation, safety, and insurance laws on
all property and
premises belonging to the United States
of America, having had
the bill under consideration, report it
back to the House with a
recommendation that it do pass.
This bill is absolutely necessary so that
protection can be
given to men employed on projects as set
out in the foregoing
paragraph.
As a specific example, the Golden Gate
Bridge, now under
construction at San Francisco, which is
being financed by a
district consisting of several counties
of the State of
California, the men are almost constantly
working on property
belonging to the Federal Government
either on the Presidio
Military Reservation on
208
the San Francisco side of the Golden
Gate, or the Fort Baker
Military Reservation on the Marin County
side of the Golden
Gate.
A number of injuries have occurred on
this project and private
insurance companies with whom
compensation insurance has been
placed by the contractors have recently
discovered two
decisions--one by the Supreme Court of
the United States and one
by the Supreme Court of California--which
seem to hold that the
State Compensation Insurance Acts do not
apply, leaving the
workers wholly unprotected, except for their common-law right of
action for personal injuries which would
necessitate action
being brought in the Federal courts. In many cases objection to
the jurisdiction of the industrial
accident commission has been
raised over 1 year after the injury
occurred and after the
statute of limitations has run against a
cause of action for
personal injuries. This status of the law has made it possible
for the compensation insurance companies
to negotiate settlement
with the workers on a basis far below
what they would ordinarily
be entitled. The situation existing in this locality is merely
an example of the condition that exists
throughout the United
States wherever work is being performed
on Federal property.
The Senate report very briefly states the
problem in these
words:
The purpose of the amended bill is to
fill a conspicuous gap in
the workmen's compensation field by
furnishing protection
against death or disability to laborers
and mechanics employed
by contractors or other persons on
Federal property. The United
States Employees' Compensation Act covers
only persons directly
employed by the Federal Government. There
is no general General
statute applying the work-
209
men's compensation principle to laborers
and mechanics on
Federal projects, and although the right
of workmen to recover
under State compensation laws for death
or disability sustained
on Federal property has been recognized
by some of the courts, a
recent decision of the United States
Supreme Court (see Murray
v. Gerrick, 291 U.S. 315), has thrown
some doubts upon the
validity of these decisions by holding
that a Federal statute
giving a right of recovery under State
law to persons injured or
killed on Federal property refers merely
to actions at law.
Hence, it was held that this statute (act
of Feb. 1, 1928, 45
Stat. 54, U.S.C., ti. 16, sec. 457) did
not extend State
workmen's compensation acts to places
exclusively within the
jurisdiction of the Federal Government.
The
bill, as passed by the House, contained provisions subjecting
Federal
property to State safety and insurance regulations and
permitting
State officers to enter Federal property for certain
purposes
in connection with the act. The Senate
committee suggested
changes
and deletions in these provisions which were approved by the
Senate. The House concurred in the amendments, with
no objections
and
with only a general explanation of their purpose prior to such
action.
While in some few instances State
workmen's compensation laws
had
been held applicable in exclusive Federal jurisdiction areas
under a
1928 Federal statute or under the international law rule, the
case of
Murray v. Gerrick & Co., 291 U.S. 315 (1934), it was noted in
the
legislative reports on this subject, held workmen's compensation
laws inapplicable
in such areas.
210
The
1936 Federal statute authorized States to apply their workmen's
compensation
laws in these areas, but required legislative action by
the
States for accomplishment of this purpose; however, where a State
had an
appropriate law already in effect, but held in abeyance in an
area
because of federal possession of legislative jurisdiction over
the
area, Federal enactment of this statute activated the State law
without
the necessity of any action by the State.
Capetola v.
Barclay
White Co., 139 F.2d 556 (C.A. 3, 1943), cert. den., 321 U.S.
799. The statute was not applicable to causes of
action arising
before
its passage, however. State workmen's
compensation laws are
authorized
by this statute to be applied to employees of contractors
engaged
in work for the Federal Government. The
statute does not,
however,
permit application of State laws to persons covered by
provisions
of the Federal Employees' Compensation Law, or, it has
been
held, to employees of Federal instrumentalities.
211
Unemployment compensation.--The provision
for application of
State
unemployment compensation laws in Federal areas was enacted as
a
portion of the Social Security act Amendments of 1939:
No person shall be relieved from
compliance with a State
unemployment compensation law on the
ground that services were
performed on land or premises owned,
held, or possessed by the
United States, and any State shall have
full jurisdiction and
power to enforce the provisions of such
law to the same extent
and with the same effect as though such
place were not owned,
held, or possessed by the United States.
The
provision probably was born out of litigation, then pending in
Arkansas
courts, wherein the United States Supreme Court later upheld
imposition
of a State unemployment compensation tax upon a person
operating
in an area under Federal legislative jurisdiction only upon
the
basis of jurisdiction to tax property retroceded to or reserved
by the
State with respect to such area.
Buckstall Bath House Co. v.
McKinley,
308 U.S. 358 (1939). Other provisions
require certain
Federal
instrumentalities to comply with State unemployment
compensation
laws.
An example of the paucity of information
as to congressional
intent
and purpose in the provisions of the Social Security Act
Amendments
of 1939 effecting retrocession of jurisdiction is the
brief
statement in the House report on this section:
Subsection (d) authorizes the States to
cover under their
unemployment compensation laws services
performed upon land held
by the Federal Government, such as
services for hotels located
in national parks.
The Senate
report is identical. Although extensive
hear-
212
ings
covering some 2,500 pages were held on the bill, very few
references
were made to the purpose of this particular section. The
provision
was inserted on the recommendation of the Social Security
Board
in its written report to the President of the United States.
During
the latter stages of the hearings the Chairman of the Social
Security
Board explained that:
Item 8: We suggest that the States be
authorized to make their
unemployment compensation laws applicable
to persons employed
upon land held by the Federal Government,
such as employees of
the hotels in the National Parks. That is the same policy that
the Congress has pursued in the past, in
making all workmen's
compensation laws applicable to such
employees, such as the
employees of concessionaires in the
National Parks and on other
Federal properties.
This
quotation indicates that provision was included "to fill a
conspicuous
gap" in the unemployment compensation field. As it had
done
before, Congress followed a precedent.
Here that precedent was
the
statute dealing with the application of workmen's compensation
laws to
Federal enclaves. Coverage was
legislation was at all worthy
it
should protect as many people as possible.
Under this statute, it has been held, a
Government contractor is
required
to make State unemployment insurance contributions with
respect
to persons employed by him on an area over which the United
States
exercises exclusive legislative jurisdiction.
And post
exchanges,
ships' service stores, officers' messes and similar
entities
are required to pay the unem-
213
ployment
taxes, it has been held, although they are Government
instrumentalities,
on the ground that they do not come within an
exception
for "wholly owned" instrumentalities.
CHAPTER VII
RELATION OF STATE TO FEDERAL
ENCLAVES
EXCLUSIVE FEDERAL JURISDICTION: States
basically without
authority.--When
the Federal Government has acquired exclusive
legislative
jurisdiction over an area, by any of the three methods of
acquired
such jurisdiction, it is clear that the State in which the
area is
located is without authority to legislate for the area or to
enforce
any of its laws within the area.
169
170
no
legislative jurisdiction over the area to which the milk was
delivered. In holding that California could not enforce
its
regulations,
the court said (pp. 294-295):
The exclusive character of the
jurisdiction of the United States
on Moffett Field is conceded. Article I, Sec. 8, clause 17 of
the Constitution of the United States
declares the Congress
shall have power "To exercise
exclusive Legislation in all Cases
whatsoever, over" the District of
Columbia, "and to exercise
like Authority over all Places purchased
by the Consent of the
Legislature of the State in which the
Same shall be, for the
Erection of Forts, Magazines, Arsenals,
dock-Yards, and other
needful Buildings; * * *."
When the federal government acquired the
tract, local law not
inconsistent with federal policy remained
in force until altered
by national legislation. The state statute involved was adopted
long after the transfer of sovereignty
and was without force in
the enclave. It follows that contracts to sell and sales
consummated within the enclave cannot be
regulated by the
California law. To hold otherwise would be to affirm that
California may ignore the Constitutional
provision that "This
Constitution, and the laws of the United
States which shall be
made in Pursuance thereof; * * * shall be
the supreme Law of the
Land; * * *." It would be a denial of the federal power
"to
exercise exclusive
Legislation." As respects such
federal
territory Congress has the combined
powers of a general and a
state government.
The answer of the State and of the court
below is one of
confession and avoidance,--confession tat
the law in fact
operates to affect action by the appellant
within federal
territory, but avoidance of the
conclusion of invalidity by the
assertion that the law in essence is the
regulation of conduct
wholly within the state's jurisdiction.
171
The court below points out that the
statute regulates only the
conduct of California's citizens within
its own territory; that
it is the purchasing, handling, and
processing by the appellant
in California of milk to be sold below
the fixed price--not the
sale on Moffett Field--which is
prohibited, and entails the
penalties prescribed by the statute. And reliance is placed
upon the settled doctrine that a state is
not disenabled from
policing its own concerns, by the mere
fact that its regulations
may beget effects on those living beyond
its borders. We think,
however, that it is without application
here, because of the
authority granted the federal government
over Moffett Field.
In the light of the history of the
legislation, we are
constrained to find that the true purpose
was to punish
California's own citizens for doing in
exclusively federal
territory what by the law of the United
States was there lawful,
under the guise of penalizing preparatory
conduct occurring in
the State, to punish the appellant for a
transaction carried on
under sovereignty conferred by Art. In
Sec. 8, clause 17 of the
Constitution, and under authority
superior to that of California
by virtue of the supremacy clause.
In the Pennsylvania case, which involved
an area not subject to
exclusive
legislative jurisdiction, a contrary conclusion was
reached. The court said (p. 269):
172
We may assume that Congress, in aid of
its granted power to
raise and support armies, Article I, Sec.
8, cl. 12, and with
the support of the supremacy clause,
Article VI, Sec. 2, could
declare State regulations like the
present inapplicable to sales
to the government. * * * But there is no clause of the
Constitution which purports, unaided by
Congressional enactment,
to prohibit such regulations, and the
question with which we are
now concerned is whether such a
prohibition is to be implied
from the relationship of the two
governments established by the
Constitution. We may assume also that, in
this absence of
Congressional consent, there is an
implied constitutional
immunity of the national government from
state taxation and from
state regulation of the performance, by
federal officers and
agencies, of governmental functions. * *
* But those who
contract to furnish supplies or render
services to the
government are not such agencies and do
not perform governmental
functions, * * * and the mere fact that
non-discriminatory
taxation or regulation of the contractor
imposes an increased
economic burden on the government is no
longer regarded as
bringing the contractor within any
implied immunity of the
government from state taxation or
regulation.
173
In each of the Dairy case there were
dissents. A dissent in the
Pennsylvania
case based on the ground that, in the view of the
dissenting
justice, Congressional policy contemplated securing milk
at a
price freely determined by competitive forces, and that, since
the
Pennsylvania regulation prevented the fruition of that policy, it
was
invalid. In two dissents in the
California case, views were
expressed
which, if adopted, would require congressional action
undertaking
the exercise of jurisdiction over an area purchased with
the
consent of the State before the jurisdiction of the State would
be ousted. It is emphasized that these views do not
represent the
state
of the law. In one dissent it was said
(pp. 305-306):
The "exclusive legislation"
clause has not been regarded as
absolutely exclusory, and no convincing
reason has been advanced
why the nature of the federal power is
such that it demands that
all state legislation adopted subsequent
to the acquisition of
an enclave must have no application in
the area. * * *
If Congress exercises its paramount legislative
power over
Moffett Field to deny California the
right to do as it has
sought to do here, the matter is of
course at an end. But until
Congress does so, it should be the aim of
the federal military
procurement officers to observe statutes
such as this
established by state action in
furtherance of the public health
and welfare, and otherwise so conduct
their affairs as to
promote public confidence and good will.
The evident suggestion in this statement
that the Federal
Government
must exercise its exclusive jurisdiction before State
jurisdiction
is ousted apparently is without Federal jurisdiction
precedent. Moreover, this view would, if carried to its
logical
conclusion,
undermine the basis for the international law rule and
render
unnecessary the application of the rule to areas subject to
exclusive
legislative jurisdiction, since it would
174
seem
that, under this view, the laws of the State governing matters
on
which the Federal Government had not legislated would be fully
effective
in such areas. Finally, in view of the
opinion expressed
by the
majority of the Court in the Pennsylvania case that Congress
could
direct noncompliance with the State regulation involved in that
case,
the dissenting justice's suggestion that noncompliance in areas
of
exclusive legislative jurisdiction must be based on a similar
congressional
direction would, it seems, serve to nullify legal
distinctions
between the two types of areas.
In
a second dissent in the California case, there were expressed
views
somewhat similar to those indicated above.
The other
dissenting
justice stated (p. 300):
Enough has been said to show that the
doctrine of "exclusive
jurisdiction" over federal enclaves
is not an imperative. The
phrase is indeed a misnomer for the
manifold legal phases of the
diverse situations arising out of the
existence of federally-
owned lands within a state--problems
calling not for a single,
simple answer but for disposition in the
light of the national
purposes which an enclave serves. If Congress speaks, state
power is of course determined by what
Congress says. If
Congress makes the law of the state in
which there is a federal
site as foreign there as is the law of China, then federal
jurisdiction would really be
exclusive. But short of such
Congressional assertion of overriding
authority, the phrase
"exclusive jurisdiction" more
often confounds than solves
problems due to our federal system.
This
suggestion that congressional action is an imperative to
establish
exclusive Federal legislative jurisdiction is, of course,
subject
to the same comment as is applicable to similar views
expressed
by the other dissenting justice.
However, the second
dissenting
justice also deplored the varied results which are
effected
by different degrees of Federal jurisdiction, and
175
after citing
some incongruities which might arise, he stated (p.
302):
These are not far-fetched
suppositions. They are the inevitable
practical consequences of making decision
here depend upon
technicalities of "exclusive
jurisdiction"--legal subtleties
which may become relevant in dealing with
prosecution for crime,
devolution of property, liability for
torts, and the like, but
which as a matter of good sense surely
are wholly irrelevant in
defining the duty of contracting officers
of the United States
in making contracts in the various States
of the Union, where
neither Congress nor the authoritative
voice of the Army has
spoken.
In the absence of such assertion of superior authority,
state laws such as those here under
consideration appear, as a
matter of sound public policy, equally
appropriate whether the
federal territory encysted within a state
be held on long or
short term lease or be owned by the
Government on whatever terms
of cession may have been imposed.
The majority opinion in the California
case anticipated the
dissents
and alluded to the suggestions contained in them as follows
(pp.
295-296):
We have this day held in Penn Dairies v.
Milk Control
Commission, ante, p. 261, that a
different decision is required
when the contract and the sales occur
within a state's
jurisdiction, absent specific national
legislation excluding the
operation of the state's regulatory
laws. The conclusions may
seem contradictory; but in preserving the
balance between
national and state power, seemingly
inconsequential differences
often require diverse results. This must be so, if we are to
accord to various provisions of
fundamental law their natural
effect in the circumstances
disclosed. So to do is not to make
subtle or technical distinctions or o
deal in legal refinements.
Here we are bound to respect the relevant
176
constitutional provision with respect to
the exclusive power of
Congress over federal lands. As Congress may, if it find the
national interest so requires, override
the state milk law of
Pennsylvania as respects purchases for
the Army, so it may, if
not inimical to the same interest subject
its purchasing
officers on Moffett Field to the
restrictions of the milk law of
California. Until it speaks we should enforce the limits of
power imposed by the provisions of the
fundamental law.
The companion Dairy case are significant
in a number of
respects. They illustrate sharply the effects of
exclusive
legislative
jurisdiction in curbing the authority of the States.
Quite
clearly, they establish that the law of the State has no
application
in an area of exclusive legislative jurisdiction, and
that
such exclusion of State authority rests on the fact of exclusive
legislative
jurisdiction; it is unnecessary for Congress to speak to
effect
that result. Such jurisdiction serves
to exclude not only the
operation
of State laws which constitute an interference with a
Federal
function, but also the application of State laws which are
otherwise
not objectionable on constitutional grounds.
The Dairy case are also significant in
that they indicate some
disposition,
as on the part of the justices constituting a minority
of the
court in the California case, to regard exclusive legislative
jurisdiction
as not constituting a barrier to the application of
State
law absent an expression by Congress that such barrier shall
exist. Such a view constitutes, it seems clear, a
sharp departure
from
overwhelming precedent, and serves to blur the historical legal
distinctions between areas of exclusive legislative
jurisdiction and
areas
in which the Federal Government has only a proprietorial
interest.
The views of the majority of the Supreme
Court in the California
case
are in accord with other decisions which have considered the
effects
of exclusive legislative jurisdiction on
177
the
authority of the State with respect to the area subject to such
jurisdiction.
Authority to tax excluded.--Exclusive
Federal legislative
jurisdiction,
it seems well settled, serves to immunize from State
taxation
privately owned property located in an area subject to such
jurisdiction.
[part of this page is
missing]
178
ter is
Surplus Trading Co. v. Cook, 281 U.S. 647 (1930), wherein the
Supreme
Court held that Arkansas was without authority to tax
privately
owned personal property located on a military reservation
which
was purchased by the Federal Government with the consent of the
legislature
of the State in which it was located.
The Supreme Court
based
its conclusion on the following proposition of law (p. 652):
It long has been settled that where lands
for such a purpose are
purchased by the United States with the
consent of the state
legislature the jurisdiction theretofore
residing in the State
passes, in virtue of the constitutional
provision [viz., article
I, section 8, clause 17], to the United
States, thereby making
the jurisdiction of the latter the sole
jurisdiction.
In
reaching its conclusion, the Supreme Court cited early cases such
as
Commonwealth v. Clary, 8 Mass. 72 (1811); Mitchell v. Tibbetts, 17
Pick
298 (Mass., 1839); United States v. Cornell, 25 Fed.Cas. 646,
No.
14,867 (C.C.D.R.I., 1819); and Sinks v. Reese, 19 Ohio St. 306
(1869). The Supreme Court also quoted with approval
the statement
which
was made in reliance on these same early cases in Fort
Leavenworth
R.R. v. Lowe, supra, at 537:
These authorities are sufficient to
support the proposition
which follows naturally from the language
of the Constitution,
that no other legislative power than that
of Congress can be
exercised over lands within a State
purchased by the United
States with her consent for one of the
purposes designated; and
that such consent under the Constitution
operates to exclude all
other legislative authority.
In the Cook case the area had been
purchased by the Federal
Government
with the consent of the legislature of the State,
jurisdiction
thereby passing to the United States under clause 17. In
Standard
Oil Company of California v. California, 291 U.S. 242
(1934),
the Supreme Court held that a cession of
179
exclusive
legislative jurisdiction to the Federal Government by a
State
also served to deprive the latter of the authority to lay a
license
tax upon gasoline sold and delivered to an area which was the
subject
of the jurisdictional cession.
180
Appellant challenges the validity of the taxing
act as construed
by the Supreme Court. The argument is that since the State
granted to the United States exclusive
legislative jurisdiction
over the Presidio, she is now without to
impose taxes in respect
of sales and deliveries made
therein. This claim, we think, is
well founded; * * *.
In Coleman Bros. Corporation v. City of
Franklin, 58 F.Supp. 551
(D.N.H.,
1945), aff'd. , 152 F.2d 527 (C.A. 1, 1945), cert. den., 328
U.S.
844, the same conclusion was reached with respect to the attempt
of a
city to tax the personal property used by a contractor in
constructing
a dam on an area of exclusive Federal legislative
jurisdiction,
and in Winston Bros. Co. v. Galloway, 168 Ore. 109, 121
P.2d
457 (1942), thee is distinguished the applicability of a tax on
net
earnings from work done by a Federal contractor on land over
which
the Federal Government did not have legislative jurisdiction,
and
that done on land over which it did have jurisdiction.
Other authority excluded.--Attempts on
the part of the States to
regulate
other activities in areas under Federal legislative
jurisdiction
have met with the same fate as attempts to control milk
prices
and to levy taxes. Thus, in In re Ladd,
181
74 Fed.
31 (C.C.D.Neb., 1896), it was held that the laws of Nebraska
requiring
a permit to sell liquor do not apply to areas of exclusive
legislative
jurisdiction. See also Farley v.
Scherno,
182
208 N.Y.
269, 101 N.E. 891 (1913). A State
cannot, without an
express
reservation of authority to do so, enforce in an area under
Federal
legislative jurisdiction the regulatory features of its
Alcoholic
Beverage Control Act. Collins v.
Yosemite Park Co., 304
U.S.
518 (1938). Nor may a State license,
under its Alcoholic
Beverage
Control Act, sale of liquor in an area which is within the
exterior
boundaries of the State but under exclusive Federal
jurisdiction. Peterson v. United States, 191 F.2d 154
(C.A. 9,
1951),
cert. den., 342 U.S. 885.
183
And, it appears, a State may not prevent,
tax, or regulate the
shipment
of liquor from outside of the State to an area within the
exterior
boundaries of the State but under exclusive Federal
legislative
jurisdiction. Johnson v. Yellow Cab
Transit Co., 321
U.S.
383 (1944); see also State v. Cobaugh, 78 Me. 401 (1886); and
Maynard
& Child, Inc. v. Shearer, 290 S.W.2d 790 (Ky., 1956). But it
has
been held that a wholesaler may not make a shipment of liquor to
an area
within the same State which is subject to exclusive Federal
jurisdiction
under a license from the State to export liquor, nor to
an
unlicensed purchaser in the area where the wholesaler's license
for domestic
sales limited such sales to licensed purchasers.
McKesson
& Robbins v. Collins, 18 Cal. App. 2d 648, 64 P.2d 469
(1937). And an excise tax has been held applicable
to liquor sold to
(but
not by) retailers located on Federal enclaves, where the tax is
on
sales by wholesalers. Op.A.G., Cal., No. 10,255 (Oct. 8, 1935).
State laws (and local ordinances) which
provide for
administrative
action have no application to areas under exclusive
Federal
legislative jurisdiction. State and
local governments cannot
enforce
ordinances relating to licenses, bonds, inspections, etc.,
with
respect to construction in areas under exclusive
184
Federal
jurisdiction. Oklahoma City, et al. v.
Sanders, 94 F.2d 323
(C.A.
10, 1953); Op. A.G., N.M., Mo. 5340 (Mar. 6, 1951); id. No.
5348
(Mar. 29, 1951); see also Birmingham v. Thompson, 200 F.2d 505
(C.A.
5, 19522). Other State and local
licensing provisions are also
inapplicable
in such areas. A State cannot enforce
its game laws in
an area
where exclusive legislative jurisdiction over wildlife has
been
ceded to the United States. Chalk v. United States, 114 F.2d 207
(C. A.
4, 1940), cert. den., 312 U.S. 679.
185
None of the laws of a State imposing
special duties upon its
residents
are applicable to residents of areas under exclusive
Federal
legislative jurisdiction. In one of the
very earliest cases
relating
to exclusive Federal legislative jurisdiction, it was stated
that
inhabitants of such areas are not "held to pay any taxes imposed
by its
[i.e. the State's] authority, nor bound by any of its laws,"
and it
was reasoned that it might be very inconvenient to the United
States
to have "their laborers, artificers, officers, and other
persons
employed in their service, subjected to the services required
by the
Commonwealth of the inhabitants of the several towns."
Commonwealth
v. Clary, 8 Mass. 72 (1811). A State
statute requiring
residents
of the State to work on State roads is not applicable to
residents
of an area subject to exclusive Federal legislative
jurisdiction. 16 Ops. A. G. 468 (1880); Pundt v.
Pendleton, 167 Fed.
997
(N.D.Ga., 1909).
But in Bailey v. Smith, 40 F.2d 958
(S.D.Iowa), it was held that
a
resident of an exclusive Federal jurisdiction area was not exempt
under a
State automobile registration law which exempted persons who
had
complied with registration laws of the State, territory, or
Federal
district of their residence, the term "Federal district"
being
construed to apply only to the District of Columbia, and the
United
States Supreme Court has upheld a requirement for registration
with
the State under similar circumstances.
Storaasli v. Minnesota,
283
U.S. 57 (1931). See also Valley County
v. Thomas, 109 Mont. 345,
97 P.2d
345 (1939).
186
Status of State and municipal
services.--The Comptroller General
of the
United States consistently and on a number of occasions has
disapproved
proposed payment by the federal Government to a State or
local
government of funds for fire-fighting on a Federal
installation,
either for services already rendered or for services to
be
rendered on a contractual basis. In support of his position he has
maintained
that there exists a legal duty upon municipal or other
fire-fighting
organizations to extinguish fires within the limits of
their
municipal or other boundaries. He has
not, in his decisions on
these
matters, distinguished between areas which are and those which
are not
under the legislative jurisdiction of the United States.
The Comptroller General has indicated
that his views relating to
fire-fighting
extend too her similar services ordinarily rendered by
or
under the authority of a State. See 6
Comp. Gen. 741 (1927);
Comp.
Gen. Dec. B-50348 (July 6, 1945); cf. id. B-51630 (Sept. 11,
1945),
where estimates and hearings made clear that an appropriation
act was
to cover cost of police and fire protection under agreements
with
municipalities. In disapproving a
proposed payment to a
municipality
for fir-fighting services performed on a Federal
installation,
he said (24 Comp. Gen. 599, 603):
* * * if a city may charge the Federal
Government for the
service of its fire department under the
circumstances here
involved, would it not follow that a
charge could be made for
the service of its police department, the
services of its
street-cleaning department and all
similar service usually
rendered by a city for the benefit and
welfare of its
inhabitants.
187
No court decisions dealing directly with
questions of obligation
for the
rendering of State and municipal services to Federal
installations
have been found. It would appear,
however, with
respect
to Federal areas over which a State exercises legislative
jurisdiction,
that while the furnishing of fire-fighting and similar
services
would be a matter for the consideration of officials of the
State
or a local government, the obligation to furnish them would be
a
concomitant of the powers exercised by those authorities within
such
areas (Comp. Gen. Dec. B-126228 (Jan. 6, 1956).
It may be noted that the Congress has
provided authority for
Federal
agencies to enter into reciprocal agreements with fire-
fighting
organizations for mutual aid in furnishing fire protection,
and,
further, for Federal rendering of emergency fire-fighting
assistance
in the absence of a reciprocal agreement.
Service of process.--It has been held
many times that the
reservation
by a State (or the grant to the States by the United
States)
of the right to serve process in an area is not inconsistent
with
Federal exercise of exclusive jurisdiction over the area. In
each of
the instances in which the consistency with exclusive Federal
jurisdiction
of a State's right to save process has been upheld,
however,
either the State had expressly reserved this right or the
Congress
had authorized such service. It seems entirely probable that
in the
absence of either a reservation of a Federal statutory
authorization
covering the matter a State would have no greater
authority
to serve process
188
in an area
of exclusive Federal jurisdiction than it does in an area
beyond
its boundaries. It has bee so held by
the Attorney General.
STATE RESERVATIONS OF JURISDICTION: In
general.--In ceding
legislative
jurisdiction to the Federal Government, and also in
consenting
to the purchase of land by the Federal Government pursuant
to
article I, section 8, clause 17, of the Constitution, it is a
common
practice of the States to reserve varying quanta jurisdiction.
There is now firmly established the legal
and constitutional
propriety
of reservations of jurisdiction in State consent and
cession
statutes. Subject to only one general
limitation, a State
has
unlimited discretion in determining the character and scope of
the
reservation which it desires to include in such statutes. The
sum and
substance of the limitation appears to be that a State may
not by
a reservation enlarge its authority with respect to the area
in
question; or, to put it conversely, that a reservation of
jurisdiction
by a State may not diminish or detract from the power
and
authority which the Federal Government possesses in the absence
of a
transfer to it of legislative jurisdiction.
Reservations construed.--State
reservations of jurisdiction have
presented
few legal problems. In no instance has
a State reservation
of
jurisdiction been invalidated, or its scope nar-
189
rowed,
on the ground that its effect was to enlarge the power of the
State or
to interfere with the functions of the Federal Government.
Instead,
the reported cases involving such reservations have
presented
questions concerning the scope of the reservation actually
made. Thus, in Collins v. Yosemite Park Co., 304
U.S. 518 (1938), it
was
held that a reservation by a State of the right to tax the sale
of
liquor does not include the right to enforce the regulatory
features
of the State's alcoholic beverage control act in an area in
which,
except inter alia the right to tax, the tax, the entire
jurisdiction
of the State had been ceded to the Federal Government.
Similarly,
in Birmingham v. Thompson, 200 F.2d 505 (C.A. 5, 1952), it
was
held that even though the State, in ceding jurisdiction to the
Federal
Government, reserved the right to tax persons in the area
over
which jurisdiction had been ceded, a city could not require the
payment
of a license fee by a contractor operating in the area where
issuance
of the license was coupled with a variety of regulatory
provisions. The results reached in these two cases
suggest that
State
statutes transferring jurisdiction will be construed strictly.
Only
those matters expressly mentioned as reserved will remain
subject
to the jurisdiction of the State.
190
AUTHORITY OF THE STATES UNDER FEDERAL STATUTES: In general.--In
order
to ameliorate some of the practical consequences of exclusive
legislative
jurisdiction, Congress has enacted legislation permitting
the
extension and application of certain State laws to areas under
Federal
legislation jurisdiction. Thus,
Congress has authorized the
States
to extend to such areas certain State taxes on motor fuel (the
so-called
"Lea Act," 4 U.S.C. 104); to apply sales, use, and income
taxes
to such areas (the so-call "Buck Act," 4 U.S.C. 105 et seq.);
to tax
certain private leasehold interests on Government owned lands
(the
so-called "Military Leasing Act of 1947," 61 Stat. 774); and to
extend
to federal areas their workmen's compensation and unemployment
compensation
laws (26 U.S.C. 3305 (formerly 1606), subsec. (d), and
act of
June 25, 1936, 49 Stat. 1938, 40 U.S.C. 290, respectively).
Congress
has also enacted a statute retroceding to the States
jurisdiction
pertaining to the administration of estates of decedent
residents
of Veterans' Administration facilities, and, from time to
time,
various legislation providing for Federal exercise of less than
exclusive
jurisdiction in specific areas where conditions in the
particular
area or the character of the Federal undertaking thereon
indicated
the desirability of the extension of a measure of the
State's
jurisdiction to such areas.
Lea Act.--A 1936 statute, variously known
as the Lea Act and the
Hayden-Cartwright
Act, amended the Federal Highway Aid Act of 1916,
by providing
(section 10):
That all taxes levied by any State,
Territory or the District of
Columbia upon sales of gasoline and other
motor
191
vehicle fuels may be levied, in the same
manner and to the same
extent, upon such fuels when sold by or
through post exchanges,
ship stores, ship service stores,
commissaries, filling
stations, Licensed traders, and other
similar agencies, located
on United States military or other
reservations, when such fuels
are not for the exclusive use of the
United States. * * *
The
legislative history of this particular section of the act is
meager
and appears to be limited to matter contained in the
Congressional
record. It is indicated that the language
of this
section
was sponsored by organizations of State highway and taxing
officials. An amendment comprised of this language was
offered by
Senator
Hayden, of arizona, and was read and passed by the Senate
without
question or debate. It is logical to
assume that the
amendment
was inspired by the decision of the Supreme Court in the
Standard
Oil Company case discussed on page 178, above.
Under this section, as it was amended by
the Buck Act in 1940,
States
are given the right to levy and collect motor vehicle fuel
taxes
within Federal areas, regardless of the form of such taxes, to
the
same extent as though such areas were not Federal, unless the
fuel is
for the exclusive use of the Federal Government. Sanders v.
Oklahoma
Tax Commission, 197 Okla. 285, 169 P.2d 748 (1946), cert.
den.,
329 U.S. 780. Sales to Government
contractors are taxable
under
the act, but not sales to Army post exchanges, which are arms
of the
192
Federal
Government and partake of its immunities under this act.
Buck Act.--Four years later, in 1940,
Congress enacted a
retrocession
statute of wide effect. This law,
commonly known as the
Buck
Act, retroceded to the States partial jurisdiction over Federal
areas
so as to permit the imposition and collection of State sale and
use
taxes and income taxes within Federal areas. The Federal
Government
and its instrumentalities were excepted.
The House of Representatives passed a
bill during the first
session
of the 76th Congress which embodied nearly all of relating to
the
collection of income taxes from Federal employees residing on
Federal
enclaves and to an amendment of the Hayden-Cartwright Act of
1936. These additional matters were added as
amendments to the House
bill
after Senate hearings were held. The
intent behind the House
bill,
passed during the first session of the 76th Congress, as stated
in the
report accompanying the bill to the floor was:
The purpose of H.R. 6687 is to provide
for uniformity in the
administration of State sales and use
taxes within as well as
without Federal areas. It proposes to authorize the levy of
State taxes with respect to or measured
by sales or purchases of
tangible personal property on Federal
areas. The taxes would in
the vast majority of cases be paid to the
State by sellers whose
places of business are located off the
Federal areas and who
make sales of property to be delivered in
such areas.
The application of such taxes to the
gross receipts of a
retailer from sales in which delivery is
made to an area
193
over which it is asserted the United
States possesses exclusive
jurisdiction is being vigorously
contested even though the
retailer's place of business is located
off the Federal area and
the negotiations leading to the sale are
conducted and the
contract of sale is executed at the
retailer's place of
business. Despite the existence of these facts, which are
generally sufficient to give rise to
liability for the tax, and
which, insofar as the theory of the tax
is concerned, should, in
the opinion of your committee, be
sufficient to impose tax
liability, exemption from the tax is
asserted upon the ground
that title to the property sold passes on
the Federal area and,
accordingly, the sale occurs on land
which the State lacks
authority.
Passage of this bill will clearly
establish the authority of the
State to impose its sales tax with
respect to sales completed by
delivery on Federal areas, and except
insofar as the State tax
might be a prohibited burden upon the
United States would not,
with the exception hereinafter noted,
impose any duty upon any
person residing or located upon the
Federal area. Such action
would merely remove any doubt which now
exists concerning the
authority of the State to require
retailers located within the
State and off the Federal areas to report
and pay the tax on the
gross receipts from their sales in which
delivery is made to a
Federal area. A minor problem presented with respect to the
application of State sales taxes on
Federal areas involves the
responsibility for such taxes of post
exchanges, shop-service
stores, commissaries, licensed traders,
and other similar
agencies operating on Federal areas.
Congress, in the amendment of section 10
of the Hayden-
Cartwright act, provided for the
application of motor-vehicle
fuel taxes with respect to the sales or
distributions of such
agencies. It would appear therefore to be entirely proper to
provide for the application of sales
194
taxes with respect to the retail sales of
tangible personal
property of such agencies.
The State have been extremely generous in
granting to the United
States exclusive jurisdiction over
Federal areas in order that
any conflicts between the authority of the United States and a
State might be avoided. It would appear to be an equally sound
policy for the United States to prevent
the avoidance of State
sales taxes with respect to sales on Federal
areas by
specifically authorizing, except insofar
as the taxes may
constitute a burden upon the United
States, the application of
such taxes on those areas.
The
House bill was amended by the Senate and therefore certain
portions
of this report must be read in the light of senate changes
in the
bill.
The report of the Senate committee on
finance which considered
the
House bill is also most informative in regard to the intent of
Congress
in enacting the law. The Senate report
gives the reasons
for the
general provision on the application of State sales and use
taxes
to Federal enclaves as:
Section 1 (a) of the committee amendment
removes the exemption
from sales or use taxes levied by a
State, or any duly
constituted taxing authority in a State,
where the exemption is
based solely on the ground that the sale
or use, with respect to
which such tax is levied, occurred in
whole or in part within a
Federal area. At the present time exemption from such taxes is
claimed on the ground that the Federal
Government has exclusive
jurisdiction over such areas. Such an exemption may be claimed
in the following types of cases: First,
where the seller's place
of business is within the Federal area
and a transaction occurs
there, and, second, where the seller's
place of business is
outside the Federal area but delivery is
made in Federal area
and payment received there.
195
This section will remove the right to
claim an exemption because
of the exclusive Federal jurisdiction
over the area in both
these situations. The section will not affect any right to
claim any exemption from such taxes on
any ground other than
that the Federal Government has exclusive
jurisdiction over the
area where the transaction occurred.
This section also contains a provision
granting the State or
taxing authority full jurisdiction and
power to levy and collect
any such sale or use tax in any Federal area within such State
to the same extent and with the same
effect as though such area
was not a federal area. This additional authorization was
deemed to be necessary so as to make it
clear that the State or
taxing authority had power to levy or
collect any such tax in
any Federal area within the State by the
ordinary methods
employed outside such areas, such as by
judgment and execution
thereof against any property of the
judgment-debtor.
The provision relating to the application
of State income taxes
to
persons residing within a Federal area or receiving income from
transaction
occurring on or service performed in a Federal area is
explained
in the Senate report on the rationale that:
Section 2 (a) of the committee amendment
removes the exemption
from income taxes levied by a State, or
any duly constituted
taxing authority in a State, where the
exemption is based solely
on the ground that the taxpayer resides
within a Federal area or
receives performed in such area. One of the reasons for
removing the above exemption is because
of an inequity which has
arisen under the Public Salary tax Act of
1939. Under that act
a State is permitted to tax the
compensation of officers and
employees reside or are domiciled
196
in that State but is not permitted to tax
the compensation of
such officers and employees who reside
within the Federal areas
within such State. For example, a naval officer who is ordered
to the Naval Academy for duty and is
fortunate enough to have
quarters assigned to him within the Naval
academy grounds is
exempt from the Maryland income tax
because the Naval Academy
grounds are a Federal area over which the
United States has
exclusive jurisdiction; but his less
fortunate colleague, who is
also ordered there for duty and rents a
house outside the
academy grounds because no quarters are available inside, must
pay the Maryland income tax on his
Federal salary. Another
reason for removing the above exemption,
is that under the
doctrine laid down in James v. Dravo
Contracting Co. (302 U.S.
134, 1937), a State may tax the income or receipts from
transactions occurring or services
performed in an area within
the State over which the United States
and the State exercise
concurrent jurisdiction but may not tax
such income or receipts
if the transactions occurred or the
services were performed in
an area within the State over which the
United States has
exclusive jurisdiction.
This section contains, for the same
reasons, a similar provision
to the one
contained in section 1 granting the State or taxing
authority
full jurisdiction and power to levy and collect any such
income
tax in any federal area within such State to the same extent
and
with the same effect as though such area was not a Federal area.
During the 1940 Senate hearings on the
House bill,
representatives
of the War and Navy Departments expressed opposition
to
certain features of the bill. Vigorous
attack was made on an
aspect
of the original bill which would have permitted the
application
of State sales taxes on retail sales of tangible personal
property
by post exchanges, ship-service stores and
197
commissaries. These objections were the apparent cause of
an
amendment
which was explained by the Senate committee as follows:
Section 3 of the committee amendment
provides that sections 1
and 2 shall not be deemed to authorize
the levy or collection of
any tax on or from the United States or
any instrumentality
thereof.
This section also provides that sections 1 and 2 shall
not be deemed to authorize the levy or
collection of any tax
with respect to sale, purchase, storage,
or use of tangible
personal property sold by the United
States or any
instrumentality thereof to any authorized
purchaser. An
authorized purchaser being a person who
is permitted, under
regulations of the Secretary of War or
Navy, to make purchases
from commissaries, ship's stores, or
voluntary unincorporated
organizations of Army or Navy personnel,
such as post exchanges,
but such person is deemed to be an
authorized purchaser only
with respect to such purchases and
is not deemed to be an
authorized purchaser within the meaning
of this section when he
makes purchases from organizations other
than those heretofore
mentioned.
For example, tangible personal property
purchased from a
commissary or ship's store by an Army or
naval officer or other
person so permitted to make purchases
from such commissary or
ship's store, is exempt from the State
sales or use tax since
the commissary or ship's store is an
instrumentality of the
United States and the purchaser is an
authorized purchaser. If
voluntary unincorporated organizations of
Army and Navy
personnel, such as post exchanges, are
held by the courts to be
instrumentalities of the United States,
the same rule will apply
to similar purchases from such
organizations;
198
but if they are held not to be such
instrumentalities, property
so purchased from them will be subject to
the State sales or use
tax in the same manner and to the same
extent as if such
purchase was made outside a Federal
area. It may also be noted
at this point that if a post exchange is
not such an
instrumentality, it will also be subject
to the States income
taxes by virtue of section 2 of the
committee amendment.
It may
be noted that post exchanges and certain other organizations
attached
to the armed forces have been judicially determined to be
Federal
instrumentalities. It should also be
noted that the
exemption
provision of the Buck Act was amended somewhat by the act
of
September 3, 1954, 68 Stat. 1227.
199
One of the Navy officers testifying at
the Senate hearing raised
a
question as to the effect on the Federal criminal jurisdiction over
federal
areas of a grant to the States of concurrent jurisdiction for
tax
matters. The Attorney General of the
United States raised the
same
question in commenting on the bill by letter to the Chairman of
the
Senate Finance Committee:
From the standpoint of the enforcement of
the criminal law, the
legislation may result in an
embarrassment which is probably
unintended. Criminal jurisdiction of the Federal courts is
restricted to Federal reservations over
which the Federal
Government has exclusive jurisdiction, as
well as to forts,
magazines, arsenals, dock-yards, or other
needful buildings
(U.S.C., title 18, sec. 451, par.
3d). A question would arise
as to whether, by permitting the levy of
sales and personal-
property taxes on Federal reservations,
the Federal Government
has ceded back to the States its
exclusive jurisdiction over
Federal reservations and has retained
only concurrent
jurisdiction over such areas. The result may be the loss of
federal criminal jurisdiction over numerous reservations, which
would be deplorable.
After
considerable discussion and deliberation the issue was resolved
by a
Senate committee amendment to the House bill adding the
following
provision (54 Stat., at p. 1060):
Section 4. The provisions of this Act shall not for the
purposes of any other provision of law be
deemed to deprive the
United States of exclusive jurisdiction
over any Federal area
over which it would otherwise have exclusive
jurisdiction or to
limit the jurisdiction of the United
States over any Federal
area.
The
committee explained that:
200
Section 4 of the committee amendment was
inserted to make
certain that the criminal jurisdiction of
Federal courts with
respect to Federal ares over which the
United States exercises
exclusive jurisdiction would not be
affected by permitting the
States to levy and collect sales, use,
and income taxes within
such areas. The provisions
of this section are applicable to
all Federal areas over which the United
States exercises
jurisdiction, including such areas as may
be acquired after the
date of enactment of this act.
The Buck Act added certain amendments to
the Hayden-Cartwright
(Let)
Act. The 1940 Senate committee report
explained why those
changes
were considered necessary:
Section 7 (a) of the committee amendment
amends section 10 of
the Hayden-Cartwright Act so that the authority
granted to the
States by such section 10 will more
nearly conform to the
authority granted to them under section 1
of this act. At the
present time a State such as Illinois,
which has a so-called
gallonage tax on gasoline based upon the
privilege of using the
highways in that State, is prevented from
levying such tax under
the Hayden-Cartwright Act because it is
not a tax upon the
"sale" of gasoline. The amendments recommended by your
committee will correct this obvious
inequity and will permit the
levying of any such tax which is levied
"upon, with respect to,
or measured by, sales, purchases,
storage, or use of gasoline or
other motor vehicle fuels."
By the Buck Act Congress took a great
stride in the direction of
removing
the tax inequities which had resulted from the existence of
Federal
"islands" in the various States and, in addition, opened the
way for
the State and local governments to secure additional revenue.
In Howard v. Commissioners, 344 U.S. 624
(1953), the Supreme
Court
(by a divided court), expressed the view that the
201
Buck
Act authorized State and local taxes measured by the income or
earnings
of any party "receiving income from transactions occurring
or
service performed in such area * * * to the same extent and with
the
same effect as though such area was not a Federal area." The
Court
of appeals of Kentucky had held that this tax was not an
"income
tax" within the meaning of the Constitution of Kentucky but
was a
tax upon the privilege of working within the city of
Louisville. The Supreme Court, after stating that the
issue was not
whether
the tax in question was an income tax within the meaning of
the
Kentucky law, held that the tax in question was a tax "measured
by, net
income, gross income, or gross receipts," as authorized by
the
Buck Act. In a dissenting opinion, here
quoted in pertinent part
to
clarify this important issue in this case, it was stated (p. 629):
I have not been able to follow the
argument that this tax is an
"income tax" within the meaning
of the Buck Act. It is by its
terms a "license fee" levied on
"the privilege" of engaging in
certain activities. The tax is narrowly confined to salaries,
wages, commissions and to the net profits
of businesses,
professions, and occupations. Many kinds of income are
excluded, e.g., divi-
202
dends, interest, capital gains. The exclusions emphasize that
the tax is on the privilege of working or
doing business in
Louisville. That is the kind of a tax the Kentucky Court of
appeals held it to be. Louisville v. Sebree, 308 Ky. 420, 214
S.W.2d 248. The Congress has not yet granted local authorities
the right to tax the privilege of working
for or doing business
with the United States.
In another case in which a State claimed
taxing authority under
the
Buck Act, a steel company which occupied a plant under lease from
the
Federal Government was thereby held subject to a State occupation
tax
under the act. Carnegie-Illinois Steel
Corp. v. Alderson, 127
W.Va.
807, 34 S.E.2d 737 (1945), cert. den., 326 U.S. 764. It has
also
been held that a tax on gasoline received in a State, within a
Federal
area, was a "sales or use" tax within the purview of the act,
and
that by the act the Congress retroceded to States sufficient
sovereignty
over Federal areas within their territorial limits to
enable
them to levy and collect the taxes described in the act.
Davis
v. Howard, 306 Ky. 149, 290 S.W.2d 467 (1947).
In Maynard &
Child,
Inc. v. Shearer, 290 S.W.2d 790 (Ky., 1956), it was held that
an
import tax was not such a tax as Congress had consented to be
collected
by its enactment of the Buck Act. In
Bowers v. Oklahoma
Tax
Commission, 51 F.Supp. 652 (W.D. Okla., 1943), a construction
contractor
was held to "use" material incorporated into the work, so
as to
subject him to a State use tax pursuant to the Buck Act. The
Attorney
General of Wyoming has ruled that the State use tax was not
applicable
to an auto purchased out of the State for private use on
an
exclusive Federal jurisdiction area within the State. Op.A.G.,
Wyo.
(Dec. 9, 1947).
There appear to be no other instances of
general importance in
which
the character of State taxes as within the purview of the Buck
Act has
been questioned in the courts.
203
An early, and leading, case relating to
the effect of the Buck
Act on
State taxing authority is Kiker v. Philadelphia, 346 Pa. 624,
31 A.2d
289 (1943), cert. den., 320 U.S. 741.
In that case there was
interposed
as a defense against application of an income tax of the
city of
Philadelphia, to a non-resident of the city employed in an
area
within the city limits but under the exclusive legislative
jurisdiction
of the United States, the fact that the non-resident
received
no quid pro quo for the tax. The court
found the
availability
of services to be an answer to this defense.
The court
also
appears to have overcome any difficulty, and in these matters
its
views apparently are sustained by the Howard case, supra, and
other
decisions, in objections raised to the application of the tax
in a
vigorous dissenting opinion in this case that (1) the city, as
distinguished
from the State, could not impose a tax under the Buck
Act,
and (2) that a State grant to the federal Government of
legislative
jurisdiction over an area placed such area outside the
sovereignty
(and individuals and property within the area beyond the
taxing
power) of the State.
Military Leasing Act of 1947.--The Wherry
Housing Act of
204
1949, in
pertinent part, makes provision for arrangements whereby
military
areas (including, of course, such areas under the exclusive
legislative
jurisdiction of the United States) may be leased to
private
individuals for the construction of housing for rental to
military
personnel. The authority to lease out
military areas for
the
construction of such housing was supplied by the Military Leasing
Act of
1947, a provision of which (section 6) read as follows:
The lessee's interest, made or created
pursuant to the
provisions of this Act, shall be made
subject to State or local
taxation. Any lease of property authorized under the provisions
of this Act shall contain a provision
that if and to the extent
that such property is made taxable by
State and local
governments by Act of Congress, in such
event the terms of such
lease shall be renegotiated.
The
legislative histories of both the 1947 and the 1949 statutes are
devoid
of authoritative information for measuring the extent of the
taxing
authority granted to the States, with the result that
ambiguities
in the language of the statutes which shortly became
apparent
led a number of conflicting court decisions, and other at
least
seemingly inconsistent interpre-
205
tation. The ambiguity as to whether the federally
granted tax
authority
with respect to leasehold interests extended to such
interests
located on lands under the exclusive legislative
jurisdiction
of the United States was resolved, however, by the
decision
of the Supreme Court of the United States in the case of
Offutt
Housing Company v. Sarpy County, 351 U.S. 253 (1956). The
court
stated (p. 259):
* * * To be sure, the 1947 Act does not
refer specifically to
property in an area subject to the power
of "exclusive
Legislation" by Congress. It does, however, govern the leasing
of Government property generally and its
permission to tax
extends generally to all lessees'
interests created by virtue of
the Act.
The legislative history indicates a concern about loss
of revenue to the States and a desire to
prevent unfairness
toward competitors of the private
interests that might otherwise
escape taxation. While the latter consideration is not
necessarily applicable where military housing is involved, the
former is equally relevant to leases for
military housing as for
any other purpose. We do not say that
this is the only
admissible construction of these
Acts. We could regard Art. I,
Sec. 8, cl. 17 as of such overriding and
comprehensive scope
that consent by Congress to state
taxation of obviously valuable
private interests located in an area
subject to the power of
"exclusive Legislation" is to be
found only in explicit
206
and unambiguous legislative
enactment. We have not heretofore
so regarded it, sec S.R.A., Inc. v.
Minnesota. 327 U.S. 558;
Baltimore Shipbuilding Co. v. Baltimore,
1095 U.S. 375, nor are
we constrained by reason to treat this
exercise by Congress of
the "exclusive Legislation"
power and the manner of construing
it any differently from any other
exercise by Congress of that
power.
This is one of cases in which Congress has seen fit not
to express itself unequivocally. It has preferred to use
general language and thereby requires the
judiciary to apply
this general language to a specific
problem. To that end we
must resort to whatever aids to
interpretation the legislation
in its entirety and its history
provide. Charged as we are with
this function, we have concluded that the
more persuasive
construction of the statute, however
flickering and feeble the
light afforded for extracting its
meaning, it that the States
were to be permitted to tax private
interests, like those of
this petitioner, in housing projects
located on areas subject to
the federal power of "exclusive
Legislation." We do not hold
that Congress has relinquished this power over these areas. We
hold only that Congress, in the exercise
of this power, has
permitted such state taxation as is
involved in the present
case.
The opinion of the Supreme Court in the Offutt
case, it seems
clear,
was restricted to an interpretation of the statutes involved,
with
particular reference tot he language of the quoted portion of
the
opinion any Federal statute authorizing a State to exercise power
previously
denied to it might be construed, in the absence of
indication
of a positive contrary legislative intent, as authorizing
the
exercise of such power not only outside of areas under exclusive
Federal
legislative jurisdiction, but also within such areas. Under
this
construction the States need not have awaited the enactment of
the
Buck Act before taxing the income of Federal employees in areas
under
exclu-
207
sive
Federal legislative jurisdiction, since Congress had previously
authorized
State taxation of incomes of Federal employees generally.
Workmen's compensation.--In 1936 there
was enacted a statute
permitting
the application of State workmen's compensation laws to
Federal
areas. Both House and Senate reports on
the bill contained
concise
explanatory remarks concerning the reasons for the act. The
House
report, the more extensive of the two, sets forth the
circumstances
which motivated congressional action.
The pertinent
portions
of the report are:
The Committee on Labor, to whom was
referred the bill (H.R.
12599) to provide more adequate
protection to workmen and
laborers on projects, buildings,
constructions, improvements,
and property wherever situated, belonging
to the United States
of America, by granting to several States
jurisdiction and
authority to enter upon and enforce their
State workmens'
compensation, safety, and insurance laws
on all property and
premises belonging to the United States
of America, having had
the bill under consideration, report it
back to the House with a
recommendation that it do pass.
This bill is absolutely necessary so that
protection can be
given to men employed on projects as set
out in the foregoing
paragraph.
As a specific example, the Golden Gate
Bridge, now under
construction at San Francisco, which is
being financed by a
district consisting of several counties
of the State of
California, the men are almost constantly
working on property
belonging to the Federal Government
either on the Presidio
Military Reservation on
208
the San Francisco side of the Golden
Gate, or the Fort Baker
Military Reservation on the Marin County
side of the Golden
Gate.
A number of injuries have occurred on
this project and private
insurance companies with whom
compensation insurance has been
placed by the contractors have recently
discovered two
decisions--one by the Supreme Court of
the United States and one
by the Supreme Court of California--which
seem to hold that the
State Compensation Insurance Acts do not
apply, leaving the
workers wholly unprotected, except for
their common-law right of
action for personal injuries which would
necessitate action
being brought in the Federal courts. In many cases objection to
the jurisdiction of the industrial
accident commission has been
raised over 1 year after the injury
occurred and after the
statute of limitations has run against a
cause of action for
personal injuries. This status of the law has made it possible
for the compensation insurance companies
to negotiate settlement
with the workers on a basis far below
what they would ordinarily
be entitled. The situation existing in this locality is merely
an example of the condition that exists
throughout the United
States wherever work is being performed
on Federal property.
The Senate report very briefly states the
problem in these
words:
The purpose of the amended bill is to
fill a conspicuous gap in
the workmen's compensation field by
furnishing protection
against death or disability to laborers
and mechanics employed
by contractors or other persons on
Federal property. The United
States Employees' Compensation Act covers
only persons directly
employed by the Federal Government. There
is no general General
statute applying the work-
209
men's compensation principle to laborers
and mechanics on
Federal projects, and although the right
of workmen to recover
under State compensation laws for death
or disability sustained
on Federal property has been recognized
by some of the courts, a
recent decision of the United States
Supreme Court (see Murray
v. Gerrick, 291 U.S. 315), has thrown
some doubts upon the
validity of these decisions by holding
that a Federal statute
giving a right of recovery under State
law to persons injured or
killed on Federal property refers merely
to actions at law.
Hence, it was held that this statute (act
of Feb. 1, 1928, 45
Stat. 54, U.S.C., ti. 16, sec. 457) did
not extend State
workmen's compensation acts to places exclusively within the
jurisdiction of the Federal Government.
The
bill, as passed by the House, contained provisions subjecting
Federal
property to State safety and insurance regulations and
permitting
State officers to enter Federal property for certain
purposes
in connection with the act. The Senate
committee suggested
changes
and deletions in these provisions which were approved by the
Senate. The House concurred in the amendments, with
no objections
and with
only a general explanation of their purpose
prior to such
action.
While in some few instances State
workmen's compensation laws
had
been held applicable in exclusive Federal jurisdiction areas
under a
1928 Federal statute or under the international law rule, the
case of
Murray v. Gerrick & Co., 291 U.S. 315 (1934), it was noted in
the
legislative reports on this subject, held workmen's compensation
laws
inapplicable in such areas.
210
The 1936
Federal statute authorized States to apply their workmen's
compensation
laws in these areas, but required legislative action by
the
States for accomplishment of this purpose; however, where a State
had an
appropriate law already in effect, but held in abeyance in an
area
because of federal possession of legislative jurisdiction over
the
area, Federal enactment of this statute activated the State law
without
the necessity of any action by the State.
Capetola v.
Barclay
White Co., 139 F.2d 556 (C.A. 3, 1943), cert. den., 321 U.S.
799. The statute was not applicable to causes of
action arising
before
its passage, however. State workmen's
compensation laws are
authorized
by this statute to be applied to employees of contractors
engaged
in work for the Federal Government. The
statute does not,
however,
permit application of State laws to persons covered by
provisions
of the Federal Employees' Compensation Law, or, it has
been
held, to employees of Federal instrumentalities.
211
Unemployment compensation.--The provision
for application of
State
unemployment compensation laws in Federal areas was enacted as
a
portion of the Social Security act Amendments of 1939:
No person shall be relieved from compliance
with a State
unemployment compensation law on the
ground that services were
performed on land or premises owned,
held, or possessed by the
United States, and any State shall have
full jurisdiction and
power to enforce the provisions of such
law to the same extent
and with the same effect as though such
place were not owned,
held, or possessed by the United States.
The
provision probably was born out of litigation, then pending in
Arkansas
courts, wherein the United States Supreme Court later upheld
imposition
of a State unemployment compensation tax upon a person
operating
in an area under Federal legislative jurisdiction only upon
the
basis of jurisdiction to tax property retroceded to or reserved
by the
State with respect to such area.
Buckstall Bath House Co. v.
McKinley,
308 U.S. 358 (1939). Other provisions
require certain
Federal
instrumentalities to comply with State unemployment
compensation
laws.
An example of the paucity of information
as to congressional
intent
and purpose in the provisions of the Social Security Act
Amendments
of 1939 effecting retrocession of jurisdiction is the
brief
statement in the House report on this section:
Subsection (d) authorizes the States to
cover under their
unemployment compensation laws services
performed upon land held
by the Federal Government, such as
services for hotels located
in national parks.
The
Senate report is identical. Although
extensive hear-
212
ings
covering some 2,500 pages were held on the bill, very few
references
were made to the purpose of this particular section. The
provision
was inserted on the recommendation of the Social Security
Board
in its written report to the President of the United States.
During
the latter stages of the hearings the Chairman of the Social
Security
Board explained that:
Item 8: We suggest that the States be
authorized to make their
unemployment compensation laws applicable
to persons employed
upon land held by the Federal Government,
such as employees of
the hotels in the National Parks. That is the same policy that
the Congress has pursued in the past, in
making all workmen's
compensation laws applicable to such
employees, such as the
employees of concessionaires in the
National Parks and on other
Federal properties.
This
quotation indicates that provision was included "to fill a
conspicuous
gap" in the unemployment compensation field. As it had
done
before, Congress followed a precedent.
Here that precedent was
the
statute dealing with the application of workmen's compensation
laws to
Federal enclaves. Coverage was
legislation was at all worthy
it
should protect as many people as possible.
Under this statute, it has been held, a
Government contractor is
required
to make State unemployment insurance contributions with
respect
to persons employed by him on an area over which the United
States
exercises exclusive legislative jurisdiction.
And post
exchanges,
ships' service stores, officers' messes and similar
entities
are required to pay the unem-
213
ployment
taxes, it has been held, although they are Government
instrumentalities,
on the ground that they do not come within an
exception
for "wholly owned" instrumentalities.
CHAPTER VIII
RESIDENTS OF FEDERAL
ENCLAVES
EFFECTS OF TRANSFERS OF LEGISLATIVE
JURISDICTION: In general.--
With
the transfer of sovereignty, which is implicit in the transfer
of
exclusive legislative jurisdiction, from a State to the Federal
Government,
the latter succeeds to all the authority formerly held by
the
State with respect to persons within the area as to which
jurisdiction
was transferred, and such persons are relieved of all
their
obligations to the State. Where partial
jurisdiction is
transferred,
the Federal Government succeeds to an exclusive right to
exercise
some authority formerly possessed by the State, and persons
within
the area are relieved of their obligations to the State under
the
transferred authority. And transfer of
legislative jurisdiction
from a
State to the Federal Government has been held to affect the
rights,
or privilege, as well as the obligations, of persons under
State
law. specifically, it has been held to
affect the rights of
residents
of areas over which jurisdiction has been transferred to
receive
an education in the public schools, to vote and hold public
office,
to sue for a divorce, and to have their persons, property, or
affairs
subjected to the probate or lunacy jurisdiction of State
courts;
it has also been interpreted as affecting the right of such
residents
to receive various other miscellaneous services ordinarily
rendered
by or under the authority of the State.
215
216
Education.--The question whether children
resident upon areas
under
the legislative jurisdiction of the Federal Government are
entitled
to a public school education, as residents of the State
within
the boundaries of which the area is contained, seems first to
have
been presented to the Supreme Judicial Court of Massachusetts in
a
request for an advisory opinion by the Massachusetts House of
Representatives. The House sought the view of the court on
the
question,
inter alia:
Are persons residing on lands purchased
by, or ceded to, the
United States, for navy yards, arsenals,
dock yards, forts,
light houses, hospitals, and armories, in
this Commonwealth,
entitled to the benefits of the State
common schools for their
children, in the towns where such lands
are located?
The
opinion of the court (Opinion of the Justices, 1 Metc. 580
(Mass.,
1841)), reads in pertinent parts as follows (pp. 581-583):
The constitution of the United States,
Art. 1, Sec. 8, provides
that congress shall have power to
exercise exclusive legislation
in all cases whatsoever, over all places
purchased by the
consent of the legislature of the State
in which the same shall
be, for the erection of forts, magazines,
arsenals, dock yards
and other needful buildings. The jurisdiction in such cases is
put upon the same ground as that of
district ceded to the United
States for the seat of government; and,
unless the consent of
the several States is expressly made
conditional or limited by
the act of cession, the exclusive power
of legislation implies
an exclusive jurisdiction; because the
laws of the several
States no longer operate within those
districts.
* *
* * *
and consequently, that no persons are
amenable to the laws of
the Commonwealth for crimes and offences
committed within said
territory, and that persons residing
217
within the same do not acquire the civil
and political
privileges, nor do they become subject to
the civil duties and
obligations of inhabitants of the towns
within which such
territory is situated.
The
court then proceeded to apply the general legal principles which
it had
thus defined to the specific question concerning education (p.
583):
We are of opinion that persons residing
on lands purchased by,
or ceded to, the United States for navy
yards, forts and
arsenals, where there is no other
reservation of jurisdiction to
the State, then that above mentioned
[service of process], are
not entitled to the benefits of the
common schools for their
children, in the towns in which such
lands are situated.
The nest time the question was discussed
by a court it was again
in
Massachusetts, in the case of Newcomb v. Rockport, 183 Mass. 74,
66 N.E.
587 (1909). There, however, while the
court explored Federal
possession
of legislative jurisdiction as a possible defense to a
suit
filed to require a town to provide school facilities on two
island
sites of lighthouses, the court's decision adverse to the
petitioners
actually was based on an absence of authority in the town
to
construct a school, and the possession of discretion by the town
as to
whether it would furnish transportation, under Massachusetts
law,
even conceding that the Federal Government did not have
exclusive
jurisdiction over the islands in question.
The legal
theories
underlying the two Massachusetts cases mentioned above have
constituted
the foundation for all the several decisions on rights to
public
schooling of children resident on Federal lands. Where the
courts
have found that
218
legislative
jurisdiction over a federally owned area has remained in
the
State, they have upheld the right of children residing on the
area to
attend State schools on an equal basis with State children
generally;
where the courts have fond that legislative jurisdiction
over an
area has been vested in the United States, they denied the
existence
of any right in children residing on the area to attend
public
schools, on the basis, in general, that Federal acquisition of
legislative
jurisdiction over an area places the area outside the
State
or the school district, whereby the residents of the area are
not
residents of the State or of the school district. Further, where
a
school building is located on an area of exclusive Federal
jurisdiction
it has been held (Op.A.G., Ind., p. 259 (1943)) the
local
school authorities have no jurisdiction over the building, are
not
required to furnish school facilities for children in such
building,
and if they do the latter with
219
money
furnished by the Federal Government they are acting as Federal
agents.
There should be noted, however, the small number of instances
in
which the right of children residing in Federal areas to a public
school
education has been questioned in the courts.
This appears to
be due
in considerable part to a feeling of responsibility in the
States
for the education of children within their boundaries,
reflected
in such statutes as the 1935 act of Texas (Art. 275b,
Vernon's
Ann. Civil Statutes), which provides for education of
children
on military reservations, and section 79-446 of the Revised
Statutes
of Nebraska (1943), which provides for admission of children
of
military personnel to public schools without payment of tuition.
In
recent years a powerful factor in curtailing potential litigation
in this
field has been the assumption by the Federal Government of a
substantial
portion of the financial burden of localities in the
operation
and maintenance of their schools, based on the impact which
Federal
activities have on local educational agencies, and without
regard
to the jurisdiction status of the Federal area which is
involved. Voting and office holding.--The Opinion of
the Justices, 1
Metc.
580 (Mass., 1841), anticipated judicial decisions concerning
the
right of residents of Federal enclaves to vote,
220
as it
anticipated decisions relating to their rights to a public
school
education and in several other fields.
One of the questions
propounded
to the court was:
Are persons so residing [on lands under
the exclusive
jurisdiction of the United States]
entitled to the elective
franchise in such towns [towns in which
such lands are located]?
After
stating that persons residing in areas under exclusive Federal
jurisdiction
did not acquire civil and political privileges thereby,
the
court said (p. 584):
We are also of the opinion that persons
residing in such
territory do not thereby acquire any
elective franchise as
inhabitants of the towns in which such
territory is situated.
The question of the right of residents of
a Federal enclave to
vote,
in a county election, came squarely before the Supreme Court of
Ohio,
in 1869, in the case of Sinks v. Reese, 19 Ohio St. 306 (1869).
Votes
cast by certain residents of an asylum for former military and
naval
personnel were not counted by election officials, and the
failure
to count them was assigned as error. The State had consented
to the
purchase of the lands upon which the asylum was situated, and
had
ceded jurisdiction over such lands.
However, the act of cession provided that
nothing therein should
be
construed to prevent the officers, employees, and inmates of the
asylum
from exercising the right of suffrage.
The court held that
under
the provisions of the Constitution of the United States and the
cession
act of the State of Ohio the grounds of the asylum had been
detached
and set off from the State, that the Constitution of the
State
of Ohio required that electors be residents of the State, that
it was
not constitutionally permissible for the general assembly of
the
State to confer the elective franchise upon
221
non-residents,
and that all votes of residents of the area should
therefore
be rejected. The Opinion of the Justices and the decision
in Sinks
v. Reese have been followed, resulting in a denial of the
right
of suffrage to residents of areas under the legislative
jurisdiction
of the United States, whatever the permanency of their
residence,
in nearly all cases where the right of such persons to
vote,
through qualification by residence on the Federal area, has
been
questioned in the courts. In some other
instances, which should
be
distinguished, the disqualification has been based on a lack of
permanency
of the residence (lack of domicile) of persons resident on
a
Federal area, without reference to the jurisdictional status of the
area,
although in similar instances the courts have held that
residence
on a Federal area can constitute a residence for voting
purposes. The courts have generally ruled that
residents of a
federally
owned area may qualify as voters where the Federal
Government
has never
222
acquired
legislative jurisdiction over the area, where legislative
jurisdiction
formerly held by the Federal Government has been
retroceded
by act of Congress, or where Federal legislative
jurisdiction
has terminated for some other reason. Attorneys General
of
several States have had occasion to affirm or deny, on similar
grounds,
the right of residents of federally owned areas to vote. In
Arapajolu
v. McMenamin, 113 Cal. App.2d 824, 249 P.2d 318 (1952), a
group
of residents, military and civilian, of various military
reservations
situated in California, sought in an action of mandamus
to
procure their registration as voters.
The court recognized (249
P.2d at
pp. 319-320) that it had been consistently held that when
property
was acquired by the
223
United
States with the consent of the State and consequent
acquisition
of legislative jurisdiction by the Federal Government the
property
"ceases in legal contemplation to be a part of the territory
of the
State and hence residence thereon is not residence within the
State
which will qualify the resident to be a voter therein."
Reviewing
the cases so holding, the court noted that all but one,
Arledge
v. Mabry, supra, had been decided before the United States
had
retroceded to the States, with respect to areas over which it had
legislative
jurisdiction, the right to apply State unemployment
insurance
acts, to tax motor fuels, to levy and collect use and sales
taxes,
and to levy and collect income taxes.
In Arledge v. Mabry,
the
court suggested, the retrocession had not been considered and the
case
had been decided (erroneously) on the basis that the United
States
still had and exercised exclusive jurisdiction. The court
concluded
(149 P.2d 323):
The jurisdiction over these lands is no
longer full or complete
or exclusive. A substantial portion of such jurisdiction now
resides in the States and such territory
can no longer be said
with any support in logic to be foreign
to California or outside
of California or without the jurisdiction
of California or
within the exclusive jurisdiction of the
United States. It is
our conclusion that since the State of
California now has
jurisdiction over the areas in question
in the substantial
particulars above noted residence in such
areas is residence
within the State of California entitling such residents to the
right to vote given by sec. 1, Art. II of
our Constitution.
224
The several cases discussed above all
related to voting, rather
than
office-holding, although the grounds upon which they were
decided
clearly would apply to either situation.
The case of Adams
v.
Londeree, 139 W.Va. 748, 83 S.E.2d 127 (1954), on the other hand,
involved
directly the question whether residence upon an area under
the
legislative jurisdiction of the United States qualified a person
to run
for and hold a political office the incumbent of which was
required
to have status as a resident of the State.
The court said
(83
S.E.2d at p. 140) that "in so far as this record shows, the
Federal
Government has never accepted, claimed or attempted to
exercise,
any jurisdiction as to the right of any resident of the
reservation
[as to which the State had reserved only the right to
serve
process] to vote." Hence, the majority
held, a resident of the
reservation,
being otherwise qualified, was entitled to vote at a
municipal,
county, or State election, and to hold a municipal,
county,
or State office. A minority opinion
filed in this case
strongly
criticizes the decision as contrary to judicial precedents
and
unsupported by any persuasive text or case authority.
While Arapajolu v. McMenamin and Adams v.
Londeree apparently
are the
only judicial decisions recognizing the existence of a right
to vote
or hold office in persons by reason of their residence on
what
has been defined for the purposes of this text as an exclusive
Federal
jurisdiction area, reports form Federal agencies indicate
that
residents of such areas under their supervision in many
instances
are permitted to vote and a few States have by statute
granted
voting rights to such residents (e.g., California, Nevada (in
some
instances), New Mex-
225
ico,
and Ohio (in case of employees and inmates of disabled soldiers'
homes)). On the other hand, one State has a
constitutional
prohibition
against voting by such persons, decisions cited above
demonstrate
frequent judicial denial to residents of exclusive
Federal
jurisdiction areas of the right to vote, and it is clear that
many
thousand residents of Federal areas are disenfranchised by
reason
of Federal possession of legislative jurisdiction over such
areas.
Divorce.--The effect upon a person's
right to receive a divorce
of such
person's residence on an area under the exclusive legislative
jurisdiction
of the United States was the subject of judicial
decision
for the first time, it appears, in the case of Lowe v. Lowe,
150 Md.
592, 133 Atl. 729 (1926). The statute of the State of
Maryland
which provided the right to file proceedings for divorce
required
residence of at least one of the parties in the State. The
parties
to this suit resided on an area in Maryland acquired by the
Federal
Government which was subject to a general consent and cession
statute
whereby the State reserved only the right to serve process,
and
were not indicated as being residents of Maryland unless by
virtue
of their residence on this area.
Reviewing judicial decisions and other
authorities holding to
the
general effect that the inhabitants of areas under the exclusive
legislative
jurisdiction of the Federal Government (133 Atl. at p.
732)
"cease to be inhabitants of the state and can no longer exercise
any
civil or political rights under the laws of the state," and that
such
areas themselves (ibid., p. 733) "cease to be a part of the
state,"
the court held that residents of areas under exclusive
Federal
jurisdiction are not such residents of the State as would
entitle
them to file a bill for divorce. The
case of Chaney v.
Chaney,
53 N.M. 66, 201 P.2d 782
226
(1949),
involved a suit for divorce, with the parties being persons
living
at Los Alamos, New Mexico, on lands acquired by the Federal
Government
which were subject to a general consent statute whereby
the
State of New Mexico reserved only the right to serve process. The
State
divorce statute provided that the plaintiff "must have been as
actual
resident, in good faith, of the state for one (1) year next
preceding
the filing of his or her complaint * * *."
The court, applying Arledge v. Mabry,
held concerning the area
under
Federal legislative jurisdiction that "such land is not deemed
a part
of the State of New Mexico," and that "persons living thereon
do not
thereby acquire legal residence in New Mexico." Accordingly,
following
Lowe v. Lowe, supra, it found that residence on such area
did not
suffice to supply the residence requirement of the State
divorce
statute.
The Lowe and Claney cases appear to be
the only cases in which a
divorce
was denied because of the exclusive Federal jurisdiction
status
of an area upon which the parties resided.
However, in a
number
of cases, some involving Federal enclaves, it has been held
that
personnel of the armed forces (and their wives) are unable,
because
of the temporary nature of their residence on a Government
reservation
to which they have been ordered, to establish on such
reservation
the residence or domicile required for divorce under
State
statutes.
227
(1933),
where the court suggested the existence of substantive
divorce
law as to Fort Benning, Georgia, under the international law
rule,
since the United States had exclusive legislative jurisdiction
over the
area, but held that there were absent in the State a
domicile
of the parties and a forum for applying the law. The Lowe,
Chaney,
Pendleton, and Dicks decisions had an influence on the
enactment,
in the several States involved, of amendments to their
divorce
laws variously providing a venue in courts of the respective
States
to grant divorces to persons resident on Federal areas.
Similar
statutes have been enacted in a few other States.
The case of Graig v. Graig, 143 Kan. 624,
56 P.2d 464 (1936),
clarification
denied, 144 Kan. 155, 58 P.2d 1101 (1936), brought
after
amendment of the Kansas law, provides a sequel to the decision
in the
Pendleton case. The court ruled in the
Graig case that the
Kansas
amendment, which provided that any person who had resided for
one
year on a Federal military reservation within the State might
bring
an action for divorce in any county adjacent to the
reservation,
required mere "residence" for this purpose, not "actual
residence"
or domicile," with their connotations of permanence. The
amendment,
the court said in directing the entry of a decree of
divorce
affecting an Army officer and his wife residing on Fort
Riley,
provided a forum for applying the law of divorce which had
existed
at the time of cession of jurisdiction over the military
reservation
to the Federal Government. The Dicks
case similarly has
as a
sequel the case of Darbie v.
228
Darbie,
195 Ga. 769, 25 S.E.2d 685 (1943). In
the Darbie case a
Georgia
amendment to the same effect as the Kansas amendment was the
basis
for the filing of a divorce suit by an Army officer residing on
Fort
Benning. The divorce was denied, but
apparently only because
the
petition was filed in a county which, although adjacent to Fort
Benning,
was not the county wherein the fort was situated, and
therefore
the filing was held not in conformity with a provision of
the
Georgia constitution (art. 6, ch 2-43, sec. 16) requiring such
suits
to be brought in the county in which the parties reside. The
Georgia
constitution has been amended (see sec. 2-4901) so as to
eliminate
the problem encountered in the Darbie case, and, in any
event,
because of its basis the decision in the case casts no
positive
judicial light on the question whether the State has
jurisdiction
to furnish a forum and grant a divorce to residents of
an area
under exclusive Federal jurisdiction.
The case of Crownover v. Crownover, 58
N.M. 597, 274 P.2d 127
(1954),
furnishes a sequel to the Chaney case.
The Crownover case
was
brought under the New Mexico amendment, which provides that for
the
purposes of the State's divorce laws military personnel
continuously
stationed for one year at a base in New Mexico shall be
deemed
residents in good faith of the State and of the county in
which
the base is located. The court affirmed
a judgment granting a
divorce
to a naval officer who, while he was stationed in New Mexico,
was
physically absent from the State for a substantial period of time
on
temporary duty, holding that the "continuously stationed"
requirement
of the statute was met by the fact of assignment to a New
Mexico
base as permanent station. An
229
objection
that "domicile" within the State (not established in the
case except
through proof of residence under military orders) is an
essential
base for the court's jurisdiction in a divorce action was
met by
the court with construction of the New Mexico amendment as
creating
a conclusive statutory presumption of domicile. The opinion
rendered
by the court, and a scholarly concurring opinion rendered by
the
chief justice (58 N.M. 609), defended the entitlement of the
court's
decision to full faith and credit by courts of other States.
Military
personnel and, indeed, civilian Federal employees and others
residing
on exclusive Federal jurisdiction areas may possibly retain
previously
established domiciles wherein would lie a venue for
divorce. It may well occur, however, that such a
person has no
identifiable
domicile outside an exclusive jurisdiction area.
Federal
courts, other than those for the District of Columbia, and
for
Territories, have no jurisdiction over divorce. A resident of an
exclusive
jurisdiction area therefore may have recourse only to a
State
court in seeking the remedy of divorce.
Absent a bona fide
domicile
within the jurisdiction of the court of at least one of the
parties,
there is the distinct possibility that a divorce decree may
be
collaterally attacked successfully in a different jurisdic-
230
tion. As to persons residing on exclusive Federal
jurisdiction
areas,
therefore, it would seem that even if there is avoided an
immediate
denial of a divorce decree on the precedent of the Lowe and
Chaney cases,
the theory of these cases may possibly be applied under
the
decision in Williams v. North Carolina, 325 U.S. 226 (1945), to
invalidate
any decree which is procured.
Probate and lunacy proceedings
generally.--In the case of Lowe
v.
Lowe, discussed above, Chief Justice Bond, in an opinion
concurring
in the court's holding that it had no jurisdiction to
grant a
divorce to residents of an exclusive Federal jurisdiction
area,
added concerning such persons (150 Md. 592, 603, 133 A. 729,
734):
"and I do not see any escape from the conclusion that ownership
of
their personal property, left at death, cannot legally be
transmitted
to their legatees or next of kin, or to any one at all;
that
their children cannot adopt children on the reservations; that
if any
of them should become insane, they could not have the
protection
of statutory provisions for the care of the insane--and so
on,
through the list of personal privileges, rights, and obligations,
the
remedies for which are provided for residents of the state."
On the other hand, in Divine v. Unaka
National Bank, 125 Tenn.
98, 140
S.W. 747 (1911), it was asserted that the power to probate
the
will of one who was domiciled, and who had died, on lands under
the
exclusive legislative jurisdiction of the United States was in
the
local State court. In In re Kernan, 247
App. Div. 664, 288
N.Y.Supp.
329 (1936), a New York court held that the State's courts
could
determine, by habeas corpus proceedings, the right to custody
of an
infant
231
who
lived with a parent on an area under exclusive Federal
jurisdiction. In both these cases the reasoning was to the
general
effect
that, while the Federal Government had been granted exclusive
legislative
jurisdiction over the area of residence, it had not
chosen
to exercise jurisdiction in the field involved, and the State
therefore
could furnish the forum, applying substantive law under the
international
law rule.
In Shea v. Gehan, 70 Ga.App. 229, 28
S.E.2d 181 (1943), the
Court
of Appeals of Georgia decided that a county court had
jurisdiction
to commit a person to the United States Veterans'
Administration
Hospital in the county as insane, although such
hospital
was on land ceded to the United States and the person found
to be
insane was at the time a patient in the hospital and a non-
resident
of Georgia. The decision in this case
was based on a their
that
State courts have jurisdiction over non-resident as well as
resident
lunatics found within the State, but the exclusive Federal
jurisdiction
status of the particular area within the boundaries of
the
State on which the lunatic here was located does not seem to have
attracted
the attention of the court. These
appear to be the only
judicial
decisions, Federal or State, other than the divorce cases
discussed
above, wherein there has been a direct determination on the
question
of existence of jurisdiction in a State to carry on a
probate
proceeding on the basis of a residence within the boundaries
of the
State on an exclusive Federal jurisdiction area.
On one occasion, where no question of
Federal legislative
232
jurisdiction
was raised, the Attorney General of the United States
held that
the property of an intestate who had lived on a naval
reservation
should be turned over to an administrator appointed by
the
local court, but in a subsequent similar instance, where Federal
legislative
jurisdiction was a factor, he held that the State did not
have
probate jurisdiction. And in a letter
dated April 15, 1943, to
the
Director of the Bureau of the Budget, the Attorney General
stated:
It is intimated in the [Veterans'
Administration]
Administrator's letter to you that the
States probably have
probate jurisdiction over Federal
reservations. I am unable to
concur in this suggestion. This Department is definitely
opinion by one of my predecessors (19
Ops.A.G. 247) it was
expressly held, after a thorough review of
the authorities and
all the pertinent considerations, that
State courts do not have
probate jurisdiction over Federal
reservations. While there is
one case holding the contrary (Divine v.
Bank, 125 Tenn. 98),
nevertheless the Attorney General's
opinion must be considered
binding on the Executive branch of the
Federal Government unless
and until the Federal courts should take
an opposite view of the
matter.
The
Judge Advocate General of the Army has held similarly, and in
several
opinions he has stated that:
"Generally, the power and
concomitant
obligation to temporarily restrain and care for persons
found
insane in any area rests with the Government exercising
legislative
jurisdiction over that area; permanent care or
confinement
is more logically assumed by the Government exercising
general
jurisdiction over the area of the person's residence." The
Judge
Advocate General of the Navy
233
has
held, to the same effect, that in view of the fact that the
United
States has exclusive jurisdiction over the site of the
Philadelphia
Navy Yard, it would be inconsistent to request
assistance
of State authorities to commit as insane a person who
committed
a homicide within the reservation.
It is evident that questions regarding
the probate jurisdiction
of a
State court with relation to a person residing on an exclusive
Federal
jurisdiction area would not arise in instances where the
persons
is domiciled within the State as a result of factors other
than
mere residence on the Federal area. But
it appears that some
persons
have no domicile except on a Federal area.
Presumably in
recognition
of this fact, a number of States have enacted statutes
variously
providing a forum for the granting of some degree of
probate
relief to residents of Federal areas.
Except as to such
statutes
relating to divorce, discussed earlier herein, appellate
courts
appear not to have had occasion to review the aspects of these
statues
granting such relief.
234
It is evident, also, that the
jurisdictional question is not
likely
to arise in States under the statutes of which residence or
domicile
is not a condition precedent to the assumption of probate
jurisdiction
by the courts. So, in Bliss v. Bliss,
133 Md. 61, 104
Atl.
467 (1918), it was stated (p. 471): "as the jurisdiction of the
courts
of equity to issue writs de lunatico unquirendo is exercised
for the
protection of the community, and the protection of the person
and the
property of the alleged lunatic, there is no reason why it
should
be confined to cases in which the unfortunate persons are
residents
of or have property in the state. It is
their presence
within
the limits of the state that necessitates the exercise of the
power
to protect their persons and the community in which they may be
placed,
and the jurisdiction of the court does not depend upon
whether
they also have property within the state.
The Uniform
Veterans
Guardianship Act, all or some substantial part of which has
been
adopted by approximately 40 States, section 18 of which provides
for
commitment to the Veterans' Administration or other agency of the
United
States Government for care or treatment of persons of unsound
mind or
otherwise in need of confinement who are eligible for such
acre or
treatment, furnishes an example of State statutes which do
not
specify a
235
requirement
for domicile or residence within the State for
eligibility
for probate relief.
A dearth of decisions on questions of the
jurisdiction of State
courts
to act as a forum for probate relief to residents of exclusive
Federal
jurisdiction areas makes it similarly evident that potential
legal
questions relating to forum and jurisdiction usually remain
submerged. So, Chief Justice Bond in his opinion in the
Lowe case
discussed
above. stated (133 A. 729, 734):
"It has been the practice
in the
orphans' court of Baltimore City to receive probate of wills,
and to
administer on the estates, of persons resident at Ft. McHenry,
and it
has also, I am informed, been the practice of the orphans'
court
of Anne Arundel county to do the same thing with respect to
wills
and estates of persons claiming residence within the United
States
Naval Academy grounds. We have no
information as to the
practice
elsewhere, but it would seem to me inevitable that the
practice
of the courts generally must have been to provide such
necessary
incidents to life on reservations within the respective
states. Several Federal agencies have been granted
congressional
authority
enabling disposition of the personal assets of patients and
members
of their establishments. This has
curtailed
236
what
otherwise would constitute numerous and pressing problems.
However,
notwithstanding the holdings in the Divine, Kernan, and Shea
cases,
and in several divorce proceedings there appear to exist other
serious
legal and practical problems relating to procurement by or
with respect
to residents of exclusive federal jurisdiction areas of
relief
ordinarily made available by probate courts.
While such
relief
is in instances essential, the federal courts, except those of
the
District of Columbia, have no probate jurisdiction. And because
of the
possibility that relief procured in a State court may be
subject
to collateral attacking a different State, it will not be
clear
until a decision of the Supreme Court of the United States is
had on
the matter whether even a decree rendered under an enabling
State
statute (except a statute reserving jurisdiction sufficient
upon
which to render the relief) must be accorded full faith and
credit
by other States when the residence upon which the original
court
based its jurisdiction upon an area under exclusive Federal
jurisdiction."
Miscellaneous rights and privileges. The Opinion of the
Justices,
1 Metc. 580 (Mass., 1841)., discussed at several points
above,
held that residence on an exclusive Federal jurisdiction
237
area,
for any length of time, would not give persons so residing or
their
children a legal inhabitancy in the town in which such area was
located
for the purpose of their receiving support under the laws of
the
Commonwealth for the relief of the poor. Numerous miscellaneous
rights
and privileges, other than those hereinbefore discussed, are
often
reserved under the laws of the several States for residents of
the
respective States. Among these are the
right or privilege of
employment
by the State or local governments, of receiving a higher
education
at State institutions free or at a favorable tuition, of
acquiring
hunting and fishing licenses at low cost, of receiving
visiting
nurse service or care at public hospitals, orphanages,
asylums,
or other institutions, of serving on juries, and of acting
as an
executor of a will or administrator of an estate. Different
legal
rules may apply, also, with respect to attachment of property
of
non-residents.
It has been declared by many authorities
and on numerous
occasions,
other than in decisions heretofore cited in this chapter,
that
areas under the exclusive legislative jurisdiction of the United
States
are not a part of the State in which they are embraced and
that
residents of such areas consequently are not entitled to civil
or
political privileges, generally, as State residents. Accordingly,
residents
of Federal areas are subject to these additional
disabilities
except in the States reserving civil and political
rights
to such residents (California and, in certain instances,
Nevada),
when legislative jurisdiction over
238
the
areas is acquired by the Federal Government under existing State
statutes. The potential impact of any widespread
practice of
discrimination
in certain of these matters can be measured in part by
the
fact that there are more than 43,000 acres of privately owned
lands
within National Parks alone over which some major measure of
jurisdiction
has been transferred to the Federal Government. It
appears,
however, that such discriminations are not uniformly
practiced
by State and local officials, and no judicial decisions
have
been found involving litigation over matters other than
education,
voting and holding elective State office, divorce, and
probate
jurisdiction generally.
CONCEPTS AFFECTING STATUS OF RESIDENTS:
Doctrine of
extraterritoriality.--It
may be noted that the decisions denying to
residents
of exclusive Federal jurisdiction areas right or privileges
commonly
accorded State residents of so on the basis that such areas
are not
a part of the State, and that residence thereon therefore
does
not constitute a person a resident of the State. This doctrine
of
extraterritoriality of such areas was enunciated in the very
earliest
judicial decision relating to the status of the areas and
their
residents, Commonwealth v. Clary, 8 Mass. 72 (1811). The
decision
was followed in Mitchell v. Tibetts, 17 Pick. 298 (Mass.,
1936),
and the two decisions were the basis of the Opinion of the
Justices,
1 Metc. 580 (Mass., 1841). Subsequent
decisions to the
same
effect invariably cite these cases, or cases based upon them, as
authority
for their holdings. The views expounded by the courts in
such decisions
are well set out in Sinks v. Reese, where the Supreme
Court
of Ohio invalidated a proviso in a State consent statute
reserving
239
a right
to vote to residents of a veterans' asylum because of a State
constitutional
provision which did not permit extension of voting
rights
to persons not resident in the State.
The Ohio court said (19
Ohio
St. 306, 316 (1889)):
* * * By becoming a resident inmate of
the asylum, a person
though up to that time he may have been a
citizen and resident
of Ohio, ceases to be such; he is relived
from any obligation to
contribute to her revenues, and is
subject to none of the
burdens which she imposes upon her
citizens. He becomes subject
to the exclusive jurisdiction of another
power, as foreign to
Ohio as is the State of Indiana or
Kentucky or the District of
Columbia. The constitution of Ohio requires that electors shall
be residents of the State; but under the
provisions of the
Constitution of the United States, and by
the consent and act of
cession of the legislature of this State,
the grounds and
buildings of this asylum have been
detached and set off from the
State of Ohio, and ceded to another
government, and placed under
its exclusive jurisdiction for an
indefinite period. We are
unanimously of the opinion that such is
the law, and with it we
have no quarrel; for there is something
in itself unreasonable
that men should be permitted to
participate in the government of
a community, and in the imposition of
charges upon it, in whose
interests they have no stake, and from
whose burdens and
obligations they are exempt.
Arledge v. Mabry, 52 N.M. 303, 197 P.2d
884 (1948), (voting
privilege
denied) and Schwartz v. O'Hara Township School Dist., 375
Pa.
440, 100 A.2d 621 (1953), (public school education privilege
denied)
are two recent cases in which this doctrine was applied.
Contrary view of extraterritoriality.--The
view that residents
of
areas of exclusive legislative jurisdiction are not residents or
citizens
of the State in which the area is situated has
240
not
gone unquestioned. In Woodfin v.
Phoebus, 30 Fed. 289
(C.C.E.D.Va.,
1887), the court said (pp. 296-297):
Although I have thought it unnecessary to
pass upon the question
whether Mrs. Phoebus and her children,
defendants in this suit,
by residing at Fortress Monroe, were by
that fact alone non-
residents and not citizens of Virginia,
yet I may as well say,
Obiter, that I do not think that such is
the result of that
residence. Fortress Monroe is not a part of Virginia as to the
right of the state to exercise any of the
powers of government
within its limits. It is dehors the state
as to any such
exercise of the rights of sovereignty,
that inhabitants there,
especially the widow and minor children
of a deceased person,
thereby lose their political character,
and cease to be citizens
of the state. Geographically, Fortress Monroe is just as much a
part of Virginia as the grounds around
the capital of the state
at Richmond,--"Fortress Monroe,
Virginia," is its postal
designation. Can it be contended that, because a person who may
have his domicile in the custom-house at
Richmond, or in that at
Norfolk, or at Alexandria, or in the
federal space at Yorktown,
on which the monument there is built, or in
that in Westmoreland
county, in which the stone in honor of
Martha Washington is
erected, loses by that fact his character
of a citizen of
Virginia? Would it not be a singular
anomaly if such a residence
within a federal jurisdiction should
exempt such a person from
suit in a federal court. Can it be supposed that the authors of
the constitution of the United States, in
using the term
"citizens of different states."
meant to provide that the
residents of such small portions of
states as should be acquired
by the national government for special
pur-
241
posses, should lose their geographical
and political identity
with the people of the states embracing
these places, and be
exempt by the fact of residence on
federal territory from suit
in a federal court? I doubt if it would ever be held by the
supreme court of the United States that
the cession of
jurisdiction over places in states for
national used, such as
the constitution contemplates,
necessarily disenfranchised the
residents of them, and left them without
any political status at
all.
In the western territories of the United States,
governments are provided on the very ground
that no state
authority exists. In the District of Columbia, a government is
provided under the control of
congress. In the territories and
the federal district, a condition of
things exists which
excludes the theory of any reservation of
rights to the
inhabitants of the body politic to which
they had before
belonged. I see no reason for insisting that persons are cut
off from membership of the political
family to which they had
belonged by the cession to the United
States of sovereign
jurisdiction and power over forts and
arsenals in which they had
resided.
I suggest these thoughts in the form of
quaere, and make what is
said no part of the adjudication of the
case. But see U.S. v.
Cornell, 2 Mason, 60; Com. v. Clary, 8
Mass. 72; Sinks v. Reese,
19 Ohio St. 306; Foley v. Shriver, 10
Va.Law J. 419.
In Howard v. Commissioners, 344 U.S. 624
(1953), the Supreme
Court
had occasion to pass directly on the question of
extraterritoriality
of Federal enclaves, although liability of the
occupants
of a Federal enclave to taxation by a municipality under
the
Buck Act, rather than their eligibility to privileges as
residents
of the State, was the ultimate issue for the court's
decision. The court said (p. 626):
242
The appellants first contend that the
City could not annex this
federal area because it had ceased to be
a part of Kentucky when
the United States assumed exclusive
jurisdiction over it. With
this we do not agree. When the United Stated, with the consent
of Kentucky, acquired the property upon
which the Ordnance Plant
is located, the property did not cease to
be a part of Kentucky.
The geographical structure of Kentucky
remained the same. In
rearranging the structural divisions of
the Commonwealth, in
accordance with state law, the area
became a part of the City of
Louisville, just as it remained a part of
the County of
jefferson and the Commonwealth of
Kentucky. A state may conform
its municipal structures to its own plan,
so long as the state
does not interfere with the exercise of
jurisdiction within the
federal area by the United States. Kentucky's consent to this
acquisition gave the United States power
to exercise exclusive
jurisdiction within the area. A change of municipal boundaries
did not interfere in the least with the
jurisdiction of the
United States within the area or with its use or disposition of
the property. The fiction of a state within a state can have no
validity to prevent the state from
exercising its power over the
federal area within its boundaries, so
long as there is no
interference with the jurisdiction
asserted by the Federal
Government. The sovereign rights in this dual relationship are
not antagonistic. Accommodation and cooperation are their aim.
It is friction, not fiction, to which we
must give heed.
The
decision in the Howard case would seen to make untenable the
premise
of extraterritoriality upon which most of the deci-
243
sions
denying civil political rights and privileges are squarely
based.
Theory of incompatibility.--In some
instances, usually where the
courts
have not been entirely explicit on this matter in the language
of
their opinions, it can be on construed that decisions denying
civil
or political rights to residents of exclusive Federal
jurisdiction
areas are based simply on a theory that exercise of such
rights
by the residents would be inconsistent with federal exercise
of
"exclusive legislation" under the Constitution.
Weaknesses in incompatibility
theory.--Historical evidence
supports
the contrary view, namely, that article I, section 8, clause
17, of
the Constitution, does not foreclose the States from extending
civil
rights to inhabitants of Federal areas.
As was indicated in
chapter
II, James Madison, in response to Patrick Henry's contention
that
the inhabitants of areas of exclusive Federal legislative
jurisdiction
would be without civil rights, stated that the States,
at the
time they ceded jurisdiction, could safeguard these rights by
making
"what stipulations they please" in their cessions to the
Federal
Government. If a stipulation by a State
safeguarding such
rights
in not incompatible with "exclusive legislation," it might
well be
argued that unilateral extension of the rights by a State
after
the transfer of jurisdiction is entirely permissible; for it
would
seem that the possession of State rights by the residents,
rather
than the timing of the securing of such rights, would create
any
incompatibility. And objections of
incompatibility with
exclusive
Federal jurisdiction of State extension of such rights as
voting
to residents of Federal enclaves would seem answerable with
the
words of the Supreme Court in its opinion in the Howard case,
supra:
"The sovereign rights in this dual relationship are not
antagonistic. Accommodation and cooperation are their
aim. It is
friction,
not fiction, to
244
which
we must give heed." What is more,
truly exclusive Federal
jurisdiction,
as it was known in the time of the basic decisions
denying
civil and political rights and privileges to residents of
Federal
enclaves, no longer exists except as to the District of
Columbia.
Former exclusivity of Federal
jurisdiction.--The basic decisions
and
most other decisions denying civil or political rights and
privileges
to residents of Federal enclaves were rendered with
respect
to areas as to which the States could exercise no authority
other
than the right to serve process, and in many of these reference
is made
in the opinions of the court to the fact that residents of
the
areas were not obliged to comply with any State law or to pay any
State
taxes. It will be recalled that until
comparatively recent
times
it was thought that there could not be transferred to the
Federal
Government a lesser measure of jurisdiction than exclusive.
Present lack of Federal
exclusivity.--That period is past,
however,
and numerous States now are reserving partial jurisdiction.
Moreover,
beginning in June 1936, by a number of statutes the Federal
Government
has retroceded to the States (and their political
subdivisions)
jurisdiction variously to tax and take other actions
with
respect to persons and transactions in areas under Federal
legislative
jurisdiction. Consequently, and
notwithstanding the
definition
given the term "exclusive legislative jurisdiction" for
the
purposes of this work, there would seem at present to be no area
(except
the District of Columbia) in which the jurisdiction of the
Federal
Government is truly exclusive, and residents of such areas
are
liable to numerous State and local tax laws and at least some
other
State laws.
245
Rejection of past concepts.--In Arapajolu
v. McMenamin,
discussed
above, the Supreme Court of the State of California, taking
cognizance
of factors outlined above, held residents of areas over
which
the Federal Government had legislative jurisdiction to be
residents
of the State. In determining them
entitled to vote as such
residents,
the court stated and disposed of a final argument as
follows
(249 P.2d 318, 323):
Respondents argue in their brief: "The states could have
reserved the right to vote at the time of
the original cession
where such right did not conflict with
federal use of the
property * * * but did not do
so." We cannot follow the force
of this argument. The State of California did not relinquish
to
the United States the right of citizens
resident on federal
lands to vote nor did the United States
acquire those rights.
The right to vote is personal to the
citizen and depends on
whether he has net the qualifications of
section 1, Art. II of
our Constitution. If the State retains jurisdiction over a
federal area sufficient to justify a holding
that it remains a
part of the State of California a
resident therein is a resident
of the State and entitled to vote by
virtue of the
Constitutionally granted right. No express reservation of such
rights is necessary, nor cold any
attempted express cession of
such rights to the United States be
effective.
Interpretations of Federal grants of
power as retrocession.--In
asserting
the existence at the present time of "jurisdiction" in the
State
of California over what were formerly "exclusive"
246
Federal
jurisdiction lands, the court said in the Arapajolu case (249
P.2d
322):
* * * The power to collect all such taxes
depends upon the
existence of State jurisdiction over such
federal lands and
therefore may not be exercised in
territory over which the
United States has exclusive
jurisdiction. Standard Oil Co. v.
California, 291 U.S. 242. 54 S.Ct. 381,
78 L.Ed. 775. In
recognition of this fact the Congress has
made these recessions
to the States in terms of jurisdiction,
e.g. 4 U.S.C.A. Secs.
105 and 106: "and such State or
taxing authority shall have full
jurisdiction and power to levy and
collect any such tax in any
Federal area within such State * *
*"; 26 U.S.C.A. Sec. 1606
(d): "and any State shall have full
jurisdiction and power to
enforce the provisions of such law * * *
as though such place
were not owned, held, or possessed by the
United States."
In
Kiker v. Philadelphia, 346 Pa. 624, 31 A.2d 289 (1943), cert.
den.,
320 U.S. 741, previously discussed at page 203, above, the
Supreme
Court of Pennsylvania referred to the Buck Act as a
"recession
of jurisdiction" to the State when upholding applicability
thereunder
of a municipal tax to the income of a Federal employee
earned
in a Federal enclave. A holding to the
same effect was had in
Davis
v. Howard, 306 Ky. 149, 206 S.W.2d 467 (1947).
247
Interpretation of such statutes as
Federal retrocession of
partial
jurisdiction to the States apparently is essential, since
States
seemingly would require "jurisdiction" to apply taxes
generally,
and the tax and other provisions of their workmen's and
unemployment
compensation acts, at least as to persons over whom they
have no
authority except as may arise from the presence of such
persons
on an "exclusive" Federal jurisdiction area. Thus, in
Atkinson
v. State Tax Commission, 303 U.S. 20 (1938), the Supreme
Court
held (p. 25) that the enforcement by a State of its workmen's
compensation
law in a Federal area was "incompatible with the
existence
of exclusive legislative authority in the United States."
And in S.R.A.,
Inc. v. Minnesota, 327 U.S. 558 (1946), it stated that
the
levy by Minnesota of a tax evidenced its acceptance of a
retrocession
of jurisdiction.
Summary of contradictory theories on
rights of residents.--
Arledge
v. Mabry and Schwartz v. O'Hare Township School District, it
may be
said, represent cases maintaining strictly the principle of
star
decisis on questions of exercise of State rights by residents of
Federal
areas. They uphold the doctrine of
extraterritoriality of
Federal
enclaves and the theory of incompatibility between exercise
of
State rights by residents of Federal areas and Federal possession
of
jurisdiction over such areas. Under the
view taken in these cases
the
only modifications which need to be made for modernizing the very
early
decisions upon which they are fundamentally based are those
which
patently are required for enforcing States laws the extension
of
which is authorized to Federal areas by Federal laws; in other
words,
no consequences whatever flow from a Federal retrocession of
partial
jurisdiction to a State other than that
248
the
State may exercise the retroceded powers.
Under this view, it
would
seem, residents of areas over which the Federal Government has
any
jurisdiction can enjoy State rights and privileges, unless
reserved
for the residents in the transfer of jurisdiction, only if
Congress
expressly retrocedes jurisdiction over such rights and
privileges
to the States. It may also be said, on the other hand,
that Arapajolu
v. McMenamin, and to some extent Adams v. Londeree,
the
several other cases cited in this chapter upholding the right of
persons
to privileges under State laws, and cases upholding the right
of
States to exercise governmental authority in areas as to which the
Federal
Government has jurisdiction, indicate at least a trend away
from
the old cases and to abandonment of the doctrine of
extraterritoriality
and the theory of incompatibility. And
this
trend
in the judicial recognition of the existence of State civil and
political
rights in residents of Federal enclaves would seem to be
given
considerable authority first: by the decision of the Supreme
Court
in Howard v. Commissioners, supra, rejecting the
extraterritoriality
doctrine, although, like the similar decision of
the
Supreme Court of Pennsylvania in Kiker v. Philadelphia, the
Howard
decision immediately related to a State's rights over
individuals
in Federal enclaves rather than to individuals' rights to
privileges
under State law, and second: by present
exercise by
States
of considerable tax and other jurisdiction over Federal
enclaves
and residents thereof, opening the way to questions of State
citizenship
of persons domiciled on such areas, nd of abridgment of
their
privileges, under the 14th Amendment. Residents of an exclusive
Federal
jurisdiction area, it has been held with respect to the
District
of Columbia, may not be deprived of the constitutional
guarantees
respecting life, liberty, and property.
CHAPTER IX
AREAS NOT UNDER LEGISLATIVE
JURISDICTION
FEDERAL OPERATIONS FREE FROM
INTERFERENCE: In general.--In
M'Culloch
v. Maryland, 4 Wheat. 316 (1819), Chief Justice Marshall
enunciated
for the Supreme Court what has become a basic principle of
the
constitutional law of the United States (pp. 405-406):
If any one proposition could command the
universal assent of
mankind, we might expect it would be
this--that the government
of
the Union, though limited in its powers, is supreme within
necessarily form its nature. It is the government of all; its
powers are delegated by all; it
represents all, and acts for
all.
Though any one State may be willing to control its
operations, no State is willing to allow
others to control them.
The nation, on those subjects on which it
can act, must
necessarily bind its component
parts. But this question is not
lift to mere reason: the people have, in
express
250
terms, decided it, by saying, "this
constitution, and the laws
of the United States, which shall be made
in pursuance thereof,"
"shall be the supreme law of the
land," and by requiring that
the members of the State legislatures,
and the officers of the
executive and judicial departments of the
States, shall take the
oath of fidelity to it.
The government of the United States,
then, though limited in its
powers, is supreme; and its laws, when
made in pursuance of the
constitution, form the supreme law of the
land, "any thing in
the constitution or laws of any State to
the contrary
notwithstanding."
The "supremacy clause," from
which Justice Marshall quoted and
on
which the announced constitutional principle was based, applies
not
only to those powers which have been expressly delegated to the
United
States, but also to powers which may be implied therefrom.
These
implied powers were, in that same opinion, defined by Chief
Justice
Marshall as follows (p. 421):
We admit, as all must admit, that the
powers of the government
are limited, and that its limits are not
to be transcended. But
we think the sound construction of the
constitution must allow
to the national legislature that
discretion, with respect to the
means by which the powers it confers are
to be carried into
execution, which will enable that body to
perform the high
duties assigned to it, in the manner most
beneficial to the
people.
Let the end be legitimate, let it be within the scope
of the constitution,and all means which
are appropriate, which
are plainly adapted to that end, which
are not prohibited, but
consist with the letter and spirit of the
constitution, are
constitutional.
251
This
doctrine of implied powers was based on the "necessary and
proper
clause."
Real property.--The freedom of Federal
operations from State
interference
extends, by every rule of logic, to such operations
involving
use of Federal real property. So, in
Fort Leavenworth R.R.
v.
Lowe, 114 U.S. 525 (1885), the Supreme Court said (p. 539):
Where, therefore, lands are acquired in
any other way by the
United States within the limits of a
State than by purchase with
her consent, they will hold the lands
subject to this
qualification: that if upon them forts,
arsenals, or other
public buildings are erected for the uses
of the general
government, such buildings, with their
appurtenances, as
instrumentalities for the execution of
its powers, will be free
from any such interference and
jurisdiction of the State as
would destroy or impair their effective
use for the purposes
designed. Such is the law with reference to all
instrumentalities created by the general
government. Their
exemption from State control is essential
to the independence
and sovereign authority of the United
States within the sphere
of their delegated powers. But, when not used as such
instrumentalities, the legislative power
of the State over the
places acquired will be as full and
complete as over any other
places within her limits.
252
The case of Ohio v. Thomas, 173 U.S. 276
(1899), aptly
demonstrates
the inconsequence, with respect to freedom of Federal
functions
from State interference, of the jurisdictional status of
lands
upon which such functions are being performed.
In holding that
a State
could not enforce against Federal employees, charged with the
responsibility
of administering a soldiers' home, a State statute
requiring
the posting of notices wherever oleomargarine is served,
the
court said (p. 283):
Whatever jurisdiction the State may have
over the place or
ground where the institution is located,
it can have none to
interfere with the provision made by
Congress for furnishing
food to the inmates of the home, nor has
it power to prohibit or
regulate the furnishing of any article of
food which is approved
by the officers of the home, by the board
of managers and by
Congress. Under such circumstances the police power of the
State has no application.
We mean by this statement to say that
Federal officers who are
discharging their duties in a State and
who are engaged as this
appellee was engaged in superintending
the internal government
and management of a Federal institution,
under the lawful
direction of its board of managers and
with the approval of
Congress, are not subject to the
jurisdiction of the State in
regard to those very matters of
administration which are thus
approved by Federal authority.
In asserting that this officer under such
circumstances is
exempt from the state law, the United
States are not thereby
claiming jurisdiction over this
particular piece
253
of land, in opposition to the language of
the act of Congress
ceding back the jurisdiction the United
States received from the
State.
The government is but claiming that its own officers,
when discharging duties under Federal
authority pursuant to ad
by virtue of valid Federal laws, are not
subject to arrest or
other liability under the laws of the
State in which their
duties are performed.
In addition to these sources of
constitutional power of the
Federal
Government, which have consequent limitations on State
authority,
article IV, section 3, clause 2, of the Constitution,
vests
in Congress certain authority with respect to any federally
owned
lands which it alone may exercise without interference from any
source. As was stated in Utah Power & Light Co.
v. United States,
243
U.S. 389 (1917), (pp. 403-405):
The first position taken by the
defendants is that their claims
must be tested by the laws of the State
in which the lands are
situate rather than by the legislation of
Congress, and in
support of this position they say that
lands of the United
States within a State, when not used or
needed for a fort or
other governmental purposes of the United
States, are subject to
the jurisdiction, powers and laws of the State
in the same way
and
254
to the same extent as are similar lands
of others. To this we
cannot assent. Not only does the Constitution (Art. IV, Sec. 3,
cl. 2) commit to Congress the power
"to dispose of the make all
needful rules and regulations
respecting" the lands of the
United States, but the settled course of
legislation,
congressional and state, and repeated
decisions of this court
have gone upon the theory that the power
of Congress is
exclusive and that only through its
exercise in some form can
rights in lands belonging to the United
States be acquired.
True, for many purposes a State has civil
and criminal
jurisdiction over lands within its limits
belonging to the
United States, but this jurisdiction does
not extend to any
matter that is not consistent with full
power in the United
States to protect its lands, to control
their use and to
prescribe in what manner others may acquire
rights in them. * *
*
255
From the earliest times Congress by its
legislation, applicable
alike in the States and Territories, has
regulated in many
particulars the use by others of the lands
of the United States,
has prohibited and made punishable
various acts calculated to be
injurious to them or to prevent their use
in the way intended,
and has provided for and controlled the
acquisition of right of
way over them for highways, railroads,
canals, ditches,
telegraph lines and the like. * * * And
so we are of opinion
that the inclusion within a State of
lands of the United States
does not take from Congress the power to
control their occupancy
and use, to protect them from trespass
and to prescribe the
conditions upon which others may obtain
rights in them, even
though this may involve the exercise in
some measure of what
commonly is known as the police power.* *
*
That the power of Congress in these
matters transcends any State
laws is
demonstrated by Hunt v. United States, 278 U.S. 96 (1928),
wherein
it was held that a State could not enforce its game laws
against
Federal employees who, upon
256
direction
of the Secretary of Agriculture, destroyed a number of wild
deer in
a national forest (which was not under the legislative
jurisdiction
of the United States), because the deer, by overbrowsing
upon and
killing young trees, hushes, and forage plants, were causing
great
damage to the land. The court said (p.
100):
* * * That this [destruction of deer] was
necessary to protect
the lands of the United States within the
reserves from serious
injury is made clear by the evidence.
The direction given by
the Secretary of Agriculture was within
the authority conferred
upon him by act of Congress. And the power of the United States
to thus protect its lands and property
does not admit of doubt,
Camfield v. United States, 167 U.S. 518,
525-526; Utah Power &
Light Co. v. United States, 243 U.S. 389,
404; McKelvey v.
United States, 260 U.S. 353, 359; United
States v. Alford, 274
U.S. 264, the game laws or any other
statute of the state to the
contrary notwithstanding.
This power of Congress extends to
preventing use of lands
adjoining
Federal lands in a manner such as to interfere with use of
the
Federal lands. This particular issue
came before the Supreme
Court
in Camfield v. United States, 167 U.S. 518 (1897), where the
court
considered the applicability of an act of Congress, which
prohibited
the fencing of public lands, to fencing of lands adjoining
public
lands in a manner as to make the latter property inaccessible.
The
court said (pp. 524-526):
While the lands in question are all
within the State of
Colorado, the Government has, with
respect to its
257
own lands, the rights of an ordinary proprietor,
to maintain its
possession and to prosecute
trespassers. It may deal with such
lands precisely as a private individual
may deal with his
farming property. It may sell or withhold them from sale. It
may grant them in aid of railways or
other public enterprises.
It may open them to preemption or
homestead settlement; but it
would be recreant to its duties as
trustee for the people of the
United States to permit any individual or
private corporation to
monopolize them for private gain, and
thereby practically drive
intending settlers from the market. It needs no argument to
show that the building of fences upon
public lands with intent
to enclose them for private use would be
a mere trespass, and
that such fences might be abated by the
officers of the
Government or by the ordinary processes
of courts of justice.
To this extent no legislation was
necessary to vindicate the
rights of the Government as a landed
proprietor.
But the evil of permitting persons, who owned or controlled the
alternate sections, to enclose the entire
tract, and thus to
exclude or frighten off intending
settlers, finally became so
great that Congress passed the act of
February 25, 1885,
forbidding all enclosures of public
lands, it was manifestly
unnecessary, since the Government as an
ordinary proprietor
would have the right to prosecute for
such a trespass. It is
only by whatever means, that the act
becomes of any avail. * * *
The general Government doubtless has a
power over its own
property analogous to the power of the
several States, and the
extent to which it may go in the exercise
of such power is
measured by the exigencies of the particular
258
case.
If it be found to be necessary for the protection of the
public, or of intending settlers, to
forbid all enclosures of
public lands, the Government may do so,
thought the alternate
sections of private lands are thereby rendered less available
for pasturage. The inconvenience, or even damage, to the
individual proprietor does not authorize
an act which is in its
nature a purpresture of government
lands. While we do not
undertake to say that Congress has the
unlimited power to
legislate against nuisances within a
State, which it would have
within a Territory, we do not think the
admission of a Territory
as a State deprives it of the power of
legislating for the
protection of the public lands, though it
may thereby involve
the exercise of what is ordinarily known
as the police power, so
long as such power is directed solely to
its own protection. A
different rule would place the public
domain of the United
States completely at the mercy of state
legislation.
In
McKelvey v. United States, 260 U.S. 353 (1922), the Supreme Court,
in
sustaining another provision of the same Federal statute,
prohibiting
restraints upon persons entering public lands, said (p.
359):
It is firmly settled that Congress may
prescribe rules
respecting the use of the public
lands. It may sanction some
uses and prohibit others, and may forbid
interference with such
as are sanctioned. Camfied v. United States, 167 U.S. 518, 525;
United States v. Grimaud, 220 U.S. 506,
521; Light v. United
States, 220 U.S. 523, 536; Utah Power
& Light Co. v. United
States, 243 U.S. 389, 404-405. The provision now before us is
but an exertion of that power. It does no more than to sanction
free passage over the public lands and to
make the obstruction
thereof by unlawful means a punishable
offense.
259
The opinions in M'Culloch v. Maryland,
Fort Leavenworth R.R. v.
Lowe,
Ohio v. Thomas, Hunt v. United States, Utah Power & Light Co.
v.
United States, Camfield v. United States, and McKelvey v. United
States
clearly demonstrate that the authority of the Federal
Government
over its lands within the State is not limited to that
derived
from legislative jurisdiction over such lads of the character
which
has been the subject of the preceding chapters; there have been
delegated
to the Federal Government by the Constitution vast powers
which
may be exercised with respect to such lands.
These powers not
only
permit the Government to exercise affirmative authority upon and
with
respect to such lands, but they also serve to prevent--and to
authorize
Federal legislation to prevent--interference by the States
and by
private persons with the Federal Government's acquisition,
ownership,
use, and disposition of lands for Federal purposes and
with
Federal activities which may be conducted on such lands.
FREEDOM OF USE OF REAL PROPERTY
ILLUSTRATED: Taxation.--The
freedom
of the Federal Government's use of its real property from
State
interference, through the operation of constitutional
provisions
other than article I, section 8, clause 17, is illustrated
by the
freedom of such property from State, and State-authorized
(local),
taxation. Since the history of the
development of such
freedom
from taxation reflects in considerable measure the
development
of freedom of Federal property, and Federal operations on
such
property, from State interference generally, such history is
deserving
of detailed consideration.
Prior to 1886, it was an open question
whether federally owned
real
estate was in all instances exempt from State taxation. Thus,
in
Commonwealth v. Young, 1 Journ. Juris. (Hall's,, Phila.) 47 (Pa.,
1818),
it was suggested that federally owned land over which
legislative
jurisdiction had not been acquired was subject to all
State
laws, including revenue laws. In United
States v. Railroad
Bridge
Co., 27 Fed. Cas. 686, No. 16,114 (C.C.N.D. Ill., 1855), it
was
suggested by Justice
260
McLean
that the tax exemption of federally owned lands was dependent
upon
compacts between the United States and the State whereby the
State
has surrendered the right to tax; if not subject to such a
compact,
Justice McLean suggested, Federal lands could be subjected
to
State taxation. He added (p. 692):
* * * In many instances the stats have
taxed the lands on which
our custom houses and other public
buildings have buildings have
been constructed, and such taxes have
been paid by the federal
government. This applies only to the lands owned by the
Government as a proprietor, the
jurisdiction never having been
ceded by the state. The proprietorship of land in a state by
the general government, cannot, it would
seem, enlarge its
sovereignty of restrict the sovereignty
or restrict the
sovereignty of the state.
Somewhat
similar views were implied in two early California cases
(subsequently
superseded by contrary views, as indicated infra),
People
v. Morrison, 22 Cal. 73 (1863); People v. Shearer, 30 Cal. 645
(1866). In United States v. Weise, 28 Fed. Cas. 518,
No. 16,659
(C.C.E.D.Pa.,
1851), the court said (p. 518) that the authority of
the
State to tax property of the Federal Government "has been the
subject
of much discussion of late. It has been
twice argued before
the
supreme court of the United States, but remains undecided." The
court
did not rule on the issue in that case, but held that such a
tax
could not in any event be enforced by levy, seizure, and sale of
property.
In its opinion, the court did not
identify the cases in which
the tax
issue had been twice argued before the supreme court of the
United
States", but left undecided. It
presumably had reference,
however,
to the unreported cases of United States v. Portland (1849)
and
Roach v. Philadelphia County (1849).
According to an account
given
of the latter case in 2 American Law Journal (N.S.) 444 (1849-
1850):
261
* * *
A writ of Error had been taken to the Supreme Court of
Pennsylvania. By the decision of that Court the lot on which is
erected the Mint of the United States was
held liable to
taxation for county purposes under State
laws. The State of
Pennsylvania had never relinquished her
right of taxation, nor
had she given her consent tot he purchase
of the ground by the
United States.--The Supreme Court of the
United States affirmed
the judgment of the State Court, thereby
sustaining the right of
the State to impose taxes upon the
property, notwithstanding
that it belonged to the United States.
According
to a report of the same case, as recited by the Supreme
Court
in Van Brocklin v. Tennessee, 117 U.S. 151, 176 (1886), the
treasurer
of the mint had sought to recover State, county and city
taxes
which had been levied and paid both upon the building and land
used by
the mint of the United States, and the decision of the
Pennsylvania
Supreme Court upholding the validity of the taxes was
sustained
by an equal division of the United States Supreme Court.
The
decision of the Pennsylvania court, like that of the United
States
Supreme Court in this case, has not been found in any of the
reports.
In the opinion in the Van Brocklin case,
the Supreme Court gave
the
following account (at p. 175) of the case of United States v.
Portland:
The first of those cases was United
States v. Portland, which,
as agreed in the statement of facts upon
which it was submitted
to the decision of the Circuit Court
262
of the United States for the District of
Maine, was an action
brought by the United States against the
City of Portland to
recover back the amount of taxes assessed
for county and city
purposes, in conformity with the statutes
of Maine, upon the
land, wharf and building owned by the
United States in that
city.
The building had been erected by the United States in
that purpose, and no other. The land, building and wharf were
within the legislative jurisdiction of
the State of Maine, and
had always been so, not having been
purchased by the United
States with the consent of the
legislature of the State. The
case was heard in the Circuit Court at
May term 1845, and was
brought to this court upon a certificate
of division of opinion
between Mr. Justice Story and Judge Ware
on several questions of
law, the principal one of which was,
whether the building, land
and wharf, so owned and occupied by the
United States, were
legally liable to taxation; and this
court, being equally
divided in opinion on those questions,
remanded the case to the
Circuit Court for further
proceedings. The action therefore
failed.
The legislature of Maine having meanwhile, by the
statute of 1846, ch. 159, Sec. 5, provided
that the property of
the United States should be exempted from
taxation, the question
has never been renewed.
263
THIS PAGE IS MISSING
264
THIS PAGE IS MISSING
265
Such
acquisition may be with or without the consent of the State in
which
the property is situated. Moreover, the
Supreme Court
emphasized,
the laws of the Untied States are supreme, and the States
have no
power, by taxation or otherwise, to retard, impede, burden or
in any
manner control the operation of the constitutional laws
enacted
by Congress to carry into execution the powers of the Federal
Government.
Taxation, the court stated, relying on
M'Culloch v. Maryland, 4
Wheat.
316 (1819), is such ann interference.
Moreover, the court
made
clear, a distinction cannot be made on the basis of the uses to
which the
real property of the Federal Government may be devoted (pp.
158-159):
The United States do not and cannot hold
property, as a monarch
may, for private or personal
purposes. All the property and
revenues of the United States must be held
and applied, as all
taxes, duties, imposts and excises must
be laid and collected,
"to pay the debts and provide for
the common defence and general
welfare of the United States." ***
After referring to the Articles of
Confederation of 1778, in
which
it was expressly provided that "no imposition, duties or
restriction
shall be laid by any State on the property of the United
States,"
and to the fact that a similar provision was also contained
in the
Northwest Ordinance of 1787, the court said (pp. 159-160):
The Constitution creating a more perfect
union, and increasing
the powers of the national government,
expressly authorized the
Congress of the United States "to
lay and collect taxes,
duties, imposts and excises, to pay the
debts and provide for
the common defence and general welfare of
the United States;"
"to exercise exclusive legislation
over all places purchased by
the consent of the legislature of the
State in which the same
shall be, for the erection of forts,
magazines, arsenals, dock-
yards, and other needful buildings;"
and "to dis-
266
pose of and make all needful rules and
regulations respecting
the territory or other property of the
United States"; and
declared, "This Constitution and the
laws of the United States
which shall be made in pursuance thereof
shall be the supreme
law of the land; and the judges in every
State shall be bound
thereby, anything in the constitution or
laws of any State to
the contrary notwithstanding." No further provision was
necessary to secure the lands or other
property of the United
States from taxation by the States.
The
court concluded its opinion as follows (pp. 179-180):
* * * To allow land, lawfully held by the
United States as
security for the payment of taxes
assessed by and due to them,
to be assessed and sold for State taxes,
would tend to create a
conflict between the officers of the two
governments, to deprive
the United States of a title lawfully
acquired under express
acts of Congress, and to defeat the
exercise of the
constitutional power to lay and collect
taxes, to pay the debts
and provide for the common defence and
general welfare of the
United States.
While citing article IV, section 3,
clause 2, as one of the
bases
for its conclusion, the Supreme Court in the Van Brocklin
opinion
did not rely solely on that provision, nor did it spell out
its
reasons for concluding that this clause prevented State and local
taxation
of real estate of the United States.
Four years later, the
Supreme
Court had occasion to give more detailed consideration to
this question
in Wisconsin Central R.R. v. Price County, 133 U.S. 496
(1890). In that case the court said (p. 504):
It is familiar law that a State has no
power to tax the property
of the United States within its
limits. This exemption of their
property from state taxation--and by state taxation we mean any
taxation by authority of the State,
whether it be strictly for
state purposes
267
or for mere local and special objects--is
founded upon that
principle which inheres in every
independent government, that it
must be free from any such interference
of another government as
may tend to destroy its powers or impair
their efficiency. If
the property of the United States could
be subjected to taxation
by the State, the object and extent of
the taxation would be
subject to the State's discretion. It might extend to buildings
and other property essential to the
discharge of the ordinary
business of the national government, and
in the enforcement of
the tax those buildings might be taken
from the possession and
use of the United States. The Constitution vests in Congress
the power to "dispose of and make
all needful rules and
regulations respecting the territory or
other property belonging
to the United States." And this
implies an exclusion of all
other authority over the property which
could interfere with his
right or obstruct its exercise. * * *
[Emphasis added.]
The opinions of the Supreme Court in the
Van Brocklin and
Wisconsin
Central R.R. cases establish an inflexible rule, with no
exceptions,
that property of the Federal Government may not, absent
the
express consent of the Government, be taxes by a State or
subdivision
thereof. All such property is held in a
governmental
capacity,
and its taxation by a State or local subdivision, the
Supreme
Court has stated, would constitute an unconstitutional
interference
with Federal functions; in addition, since taxation
carries
with it the right to levy execution on the property in order
to
enforce payment of the tax on it, the taxation of such property by
a State
is prohibited by article IV, section 3, clause 2, of the
Constitution,
which vests solely in the Congress the authority to
dispose
of property of the United States.
268
State activities are exempt from Federal
taxation only to the
extent
that they represent an exercise of governmental powers rather
than
engaging in business of a private nature.
Ohio v. Helvering,
292
U.S. 360, 368 (1934); South Carolina v. United States, 199 U.S.
437,
458 (1905). Ohio taxing authorities
thought that this rule
applied
conversely to allow them to tax a Federal housing project and
the
Ohio Supreme Court denied tax exemption. The United States
Supreme
Court rejected this contention in two curt sentences in
Cleveland
v. United States, 323 U.S. 329, 333 (1945), as follows:
"And
Congress may exempt property owned by the United States or its
instrumentality
form state taxation in furtherance of the purposes of
the
federal legislation. This is settled by
such an array of
authority
that citation would seem unnecessary."
Thereafter the Ohio
Supreme
Court rejected another attempt of the taxing authorities to
apply
the governmental versus proprietary function distinction to the
United
States, holding that so long as the land is owned by the
United
States it is tax exempt. United States (Form Credit
administration)
v. Board of Tax Appeals, et al., 145 Ohio St. 257, 61
N.E. 2d
481 (1945). However, Federal ownership
does not prohibit
taxation
of private interests in the same parcel of real property.
S.R.A.,
Inc. v. Minnesota, 327 U.S. 558 (1946).
While federally owned property is
constitutionally exempt from
State
and local taxation, the Congress may, of course, waive such
exemption. Both at the present time and in years past
Congress has
authorized
the payment of State and local taxes on certain federally
owned
real property. Thus, at the present
time, approximately three
million
dollars per year are paid pursuant to such authorizations in
addition
to the so-called payments in lieu of taxes, which aggregate
approximately
14 million dollars more. Such authorizations by the
269
Congress
are not, of course, a recent innovation.
Thus, specific
appropriation
of funds for payment of the tax on the mint of the
United
States in Philadelphia, involved in Roach v. Philadelphia
County,
supra, was made by the Congress. And in
4 Stat. 673, 675
(act of
May 14, 1834), is to be found another appropriation made
expressly
for the purpose of paying just such taxes.
Special assessments.--Federally owned
property is
constitutionally
exempt not only from a State's and local
subdivision's
general real property taxes, but it is also immune from
special
assessments which are levied against property owners for
improvements. See Wisconsin Central R.R. v. United States,
290 U.S.
89
(1933); United States v. Anderson Cottonwood Irr. Dist., 19
F.Supp.
740 (N.D.Cal., 1937). Such immu-
270
nity
extends not only to the Federal Government but also to its
successors
in interest, insofar as the special assessments relate to
any
improvements which were made while the Federal Government owned
the
property. This latter issue was so
decided in Lee v. Osceola &
Little
River Road Improvement District, 268 U.S. 643 (1925), and in
the
course of its opinion the Supreme Court said (p. 645):
It was settled many years ago that the
property of the United
States is exempt by the Constitution from
taxation under the
authority of a State so long as title
remains in the United
States.
Van Brocklin v. State of Tennessee, 117 U.S. 151, 180.
This is conceded. It is urged, however, that this rule has no
application after the title has passed
from the United States,
and that it may then be taxed for any
legitimate purposes.
While this is true in reference to
general taxes assessed after
the United States has parted with its
title, we think it clear
that it is not the case where the tax is
sought to be imposed
for benefits accruing tot he property
from improvements made
while it was still owned by the United
States. In the Van
Brocklin Case, supra, p. 168, it was said
that the United States
has the exclusive right to control and
dispose of its public
lands, and that "no State can
interfere with this right, or
embarrass its exercise." Obviously, however, the United States
will be hindered in the disposal of lands
upon which local
improvements have been made, if taxes may
thereafter be assessed
against the purchasers for the benefits
resulting from such
improvements. Such a liability for the future assessments of
taxes would create a serous incumbrance
upon the lands, and its
subsequent
271
enforcement would accomplish indirectly
the collection of a tax
against the United States which could not
be directly imposed. *
* *
Condemnation of Federal land.--Closely
related to the subject of
State
taxation of Federal land is that of State condemnation of such
land. Prior to the decision of the Supreme Court
in Van Brocklin v.
Tennessee,
117 U.S. 151 (1886), in which was established the
proposition
that the Federal Government does no, and cannot, hold
property
in a proprietary capacity, it was held in a number of cases
that the
State's power of eminent domain extended to land of the
Federal
Government not used or needed for a governmental purpose.
The decision in the Van Brocklin case, in
its holding that the
Federal
Government owns all of its property in a governmental
capacity,
rendered untenable the underlying principles upon which
these
cases sustaining the State's power of eminent domain rested,
and in
Utah Power & Light Co. v. United States, 243 U.S. 389 (1917),
the
United States Supreme Court disposed of the issue squarely by
stating
(pp. 403-404):
The fact position taken by the defendants
is that their claims
must be tested by the laws of the State
in which the lands are
situate rather than by the legislation of
Congress, and in
support of this position they say that
the lands of the United
States within a State, when not used or
needed for a fort or
other governmental purpose of the United
States are subject to
the jurisdiction, powers and laws of the
State in the same way
and to the same extent as are similar
lands of others.
272
To this we cannot assent. Not only does the Constitution (Art.
IV, Sec. 3, cl. 2) commit to Congress the
power "to dispose of
and make all needful rules and
regulations respecting" the lands
of the United States, but the settled
course of legislation,
congressional and state, and repeated
decisions of this court
have gone upon the theory that the power
of Congress is
exclusive and that only through its
exercise in some form can
rights in lands belonging to the United
States be acquired. * *
*
And, as
to the issue of the State's exercise of its power of eminent
domain
with respect to federally owned land, the court concluded (p.
405):
It results that laws, including those
relating to the exercise
of the power of eminent domain, have no
bearing upon a
controversy such as is here presented
[viz., the right to use
and occupy federally owned land], same as
they may have been
adopted or made applicable by Congress.
The same result would because of the
Federal Government's
sovereign
immunity from suit. A proceeding to
condemn land, in
which
the United States has an interest, is a suit against the United
Stats
which may be brought only by the consent of Congress. Minnesota
v.
United States, 305 U.S. 382, 386-387 (1939).
FEDERAL ACQUISITION AND DISPOSITION OF
REAL PROPERTY:
Acquisition.--While
the acquiescence of a State is essential to
acquisition
by the Federal Government of legislative jurisdiction
over an
area within such State, it is not essential to the
acquisition
by the Federal Government of real property within the
States. The Federal Government may obtain such
273
real
property by gift, purchase, or condemnation.
See Fort
Leavenworth
R.R. v. Lowe, 114 U.S. 525 (1885); Kohl v. United States,
91 U.S.
367 (1876). It may also obtain property
of the State by
exercise
of its power of eminent domain, even though such property is
used by
the State for governmental purposes.
United States v. Wayne
County,
53 C.Cls. 417 (1918), aff'd., 252 U.S. 574 (1920); United
States
v. Carmack, 329 U.S. 230 (1946); Oklahoma v. Atkinson Co., 313
U.S.
508 (1941); United States v. Montana, 134 F.2d 194 (C.A. 9,
1943)
and see also United States v. Clarksville, 224 F.2d 712 (C.A.
4,
1955).
Disposition.--By reason of article IV,
section 3, clause 2, of
the
Constitution, Congress alone has the ultimate authority to
determine
under what terms and conditions property of the Federal
Government
may or shall be sold. In Gibson v.
Chouteau, 13 Wall. 92
(1872),
which involved a complex issue of a claim of title under
State
law as against title claimed through a patent from the Federal
Government,
the Supreme Court said (pp. 99-100):
With respect to the public domain, the
Constitution vests in
Congress the power of disposition and of
making all needful
rules and regulations. That power is subject to no limitations.
Congress has the absolute right to
prescribe the times, the
conditions, and the mode of transferring
this property, or any
part of it, and to designate the persons
to whom the transfer
shall be made. No State legislation can interfere with this
right or embarrass its exercise; and to
prevent the possibility
of any attempted interference with it, a
provision has been
usually inserted in the compacts by which
new States have been
admitted into the Union, that such
interference with the primary
disposal of the soil of the United States
shall never be made.
Such provision was inserted in the act
admitting Missouri,
274
and it is embodied in the present
Constitution, with the further
clause that the legislature shall also
not interfere "with any
regulation that Congress may find
necessary for securing the
title in such soil to the bona fide
purchasers."
The same principle which forbids and
State legislation
interfering with power of Congress to
dispose of the public
property of the United States, also
forbids any legislation
depriving the grantees of the United
States of the possession
and enjoyment of the property granted by
reason of any delay in
the transfer of the title after the
initiation of proceedings
for its acquisition. The consummation of the title is not a
matter which the grantees can control,
but one which rests
entirely with the government.
With the legal title, when
transferred, goes the right to possess
and enjoy the land, and
it would amount to a denial of the power
of disposal in Congress
if these benefits, which should follow
upon the acquisition of
that title, could be forfeited because
they were not asserted
before that title was issued.
Similarly, in Bagnell v. Broderick, 13
Pet. 426 (1839_), it was
held
that the Congress has "the sole power to declare the dignity and
effect
of titles emanating from the United States" (p. 450), and in
Wilcox
v. Jackson, 13 Pet. 498 (1839), it was held that the question
of
whether title to land which once was the property of the Federal
Government
had passed to its assignee is to be resolved by the laws
of the
United States. In Irvine v. Marshall,
et al., 20 How. 558
(1858),
it was said (p. 563):
* * * The fallacy of the conclusion
attempted * * *, consists in
the supposition, that the control of the
United States over
property admitted to be their own, is
dependent upon locality,
as to the point within the limits of a
State or Territory within
which that prop-
275
erty may be situated. But as the control, enjoyment, or
disposal of that property, must be
exclusively in the United
States, anywhere and everywhere within
their own limits, and
within the powers delegated by the
Constitution, no State, and
much less can a Territory, (yet remaining
under the authority of
the Federal Government,) interfere with
the regular, the just,
and necessary power of the latter. * * *
In the exercise of its powers of
disposition, Congress may
authorize
the leasing of real property, as well as its sale. United
States
v. Gratiot, 14 Pet. 526 (1840). In
disposing of property,
Congress
may also provide that it shall not become liable for the
satisfaction
of debts contracted prior to the issuance of a land
patent. Ruddy v. Rossi, 248 U.S. 104 (1918). Congress may also
provide
that it shall not become liable for the satisfaction of debts
contracted
prior to the issuance of a land patent.
Ruddy v. Rossi,
248
U.S. 104 (1918). Congress may also
restrict the disposition of
personal
property developed by a grantee on property acquired from
the
United States. United States v. San
Francisco, 310 U.S. 16
(1940). Under its general powers of disposition,
Congress may
condition
the use of real property of the United States by requiring
the
user to transmit over its lines electric power owned by the
Federal
Government. Federal Power Commission v.
Idaho Power Co., 344
U.S. 17
(1952).
In Federal Power Commission v. Oregon,
349 U.S. 435 (1955),
which
basically involved interpretation of Federal statutes, it was
held
that a State is without authority to require a person to obtain
from
the State permission to construct a privately owned dam on
property
of the United States where such construction was instituted
with the
permission of the United States; the granting of such
permission
by the United States is an exercise of the power of
disposition
with which a State may not interfere.
The court said
(pp.
441-443):
On its face, the Federal Power Act
applies to this license as
specifically as it did to the license in
the First Iowa case
[First Iowa Coop. v. Federal Power
Commission, 328 U.S. 152].
There the jurisdiction of the Commission
turned almost entirely
upon the naviga-
276
bility of the waters of the United States
to which the license
applied.
Here the jurisdiction turns upon the ownership or
control by the United States of the
reserved lands on which the
licensed project is to be located. The authority to issue
licenses in relation to navigable waters
of the United States
springs from the Commerce Clause of the
Constitution. The
authority to do so in relation to public
lands and reservations
of the United States springs from the
Property Clause--"The
Congress shall have Power to dispose of
and make all needful
Rules and Regulations respecting the
Territory or other Property
belonging to the United States * *
*." Art. IV, Sec. 3.
It is clear that Congress, in the
exercise of its power of
disposition,
may authorize actions serving to improve the
marketability
of the property. Thus, it may provide
for the
reclamation
of arid lands owned by the Federal Government.
United
States
v. Hanson, 167 Fed. 881 (C.A. 9, 1909); Kansas v. Colorado,
206
U.S. 46, 91, 92 (1907). It may also
authorize the purchase of
privately
owned transmission lines to facilitate the sale of excess
electrical
energy produced by federally owned facilities. In
Ashwander
v. Tennessee Valley Authority, 297 U.S. 288 (1936), the
court
stated (p. 338):
* * * The constitutional provision is
silent as to the method of
disposing of property belonging to the
United States. That
method, of course, must be an appropriate
means of disposition
according to the nature of the property,
it must be one adopted
in the public interest as distinguished
from private or personal
ends, and we may assume that it must be
consistent with the
foundation principles of our dual system
of government and must
not be contrived to govern the concerns
reserved to the States.
* * *
277
PROTECTION OF PROPERTY AND OPERATIONS OF
THE GOVERNMENT:
Property.--It
is not essential that the Federal Government have
legislative
jurisdiction over real property owned by it in order to
provide
for its protection against trespass, unauthorized use, or
destruction,
notwithstanding that State laws may continue effective.
Legislation
having these objectives has in a number of cases been
sustained
on the basis of the power delegated to Congress by article
IV,
section 3, clause 2, of the Constitution.
While this clause, it
is
clear from Pollard v. Hagan, 3 How. 212, 223 (1845), does not
grant
to Congress "municipal sovereignty" over any area within a
State,
it constitutes a "grant of power to the United States of
control
over its property." Kansas v.
Colorado, 206 U.S. 46, 89
(1907).
On the basis of the power vested in
Congress by article IV,
section
3, clause 2, of the Constitution, the United States was
granted
an injunction to restrain grazing of cattle on public lands
without
a permit. Light v. United States, 220
U.S. 523 (1911). In
the course
of its opinion, the court said (pp. 536-538):
The United States can prohibit absolutely
or fix the terms on
which its property may be used. As it can withhold or reserve
the land it can do so indefinitely,
Stearns v. Minnesota, 179
U.S. 243. It is true that the "United States do not and cannot
hold property as a monarch may for
private or personal
purposes." Van Brocklin v. Tennessee, 117 U.S. 158. But that
does not lead to the conclusion that it
is without the rights
incident to ownership, for the
Constitution declares, Sec. 3,
Art. IV, that "Congress shall have
power to dis-
278
pose of and make all needful rules and
regulations respecting
the territory or the property belonging
to the United States."
"The full scope of this paragraph
has never been definitely
settled.
Primarily, at least, it is a grant of power to the
United States of control over its
property." Kansas v.
Colorado, 206 U.S. 89.
"All the public lands of the nation
are held in trust for the
people of the whole country." United States v. Trinidad Coal
Co., 137 U.S. 160. And it is not for the courts to say how that
trust shall be administered. That is for Congress to determine.
The courts cannot compel it to set aside
the lands for
settlement; or to suffer them to be used
for agricultural or
grazing purposes; nor interfere when, in
the exercise of its
discretion, Congress establishes a forest
reserve for what it
decides to be national and public
purposes. In the same way and
in the exercise of the same trust it may
disestablish a reserve,
and devote the property to some other
national and public
purpose.
These are rights incident to proprietorship, to say
nothing of the power of the United States
as a sovereign over
the property belonging to it. * * * * * *
He [i.e., the
defendant] could have obtained a permit
for reasonable
pasturage. He not only declined to apply for such license, but
there is evidence that he threatened to
resist efforts to have
his cattle removed from the Reserve, and
in his answer he
declares that he will continue to turn
out his cattle, and
contends that if they go upon the Reserve
the Government has no
remedy at law or equity. This claim answers itself.
Similarly, in Utah Power & Light Co.
v. United States, 243 U.S.
389
(1917), it was held that the United States could enjoin the
occupancy
and use, without its permission, of cer-
279
tain of
its lands forest reservations as sites for works employed in
generating
and distributing electric power, and to obtain
compensation
for such occupancy and use in the past.
In United
States
v. Gear, 3 How. 120 (1845), it was held that the United States
was
entitled to an injunction to prevent unauthorized mining of lead
on
federally owned land. The Federal
Government may also prevent the
extraction
of oil from public lands. See United
States v. Midwest
Oil
Co., 236 U.S. 459 (1915). In Cotton
v. United States, 11 How.
229
(1850), it was held that the United States may bring a civil
action
of trespass for the cutting and carrying away of timber from
lands
owned by the United States. The United
States, as the absolute
owner
of the Arkansas Hot Springs, has the same power a private owner
would
have to exclude the public from the use of the waters. Van
Lear v.
Eisele, 126 Fed. 823 (C.C.E.D.Ark., 1903).
Indeed, the
United
States has prevailed in perhaps every type of action,
including
special remedies variously provided by State statutes to
protect
and conserve its lands, and resources and other matters
located
thereon.
The Federal Government has undisputed
authority to provide, and
has
provided, criminal sanctions for various acts injurious, or
having
a reasonable potential of being injurious, to real property of
the
United States. Congress may provide for
the punishment of theft
of timber
from lands of the United States. See United States v.
Briggs,
9 How. 351 (1850); see also United States v. Ames, 24 Fed.
Cas.
784, No. 14,441 (C.C.D. Mass., 1845). Federal criminal sanctions
may be
applied to any person who leaves a fire, without first
extinguishing
it, on private lands "near" inflammable grass on the
280
public
domain. United States v. Alford, 274
U.S. 264 (1927).
Operations.--The Federal Government has
undisputed authority to
protect
the proper carrying out of the functions assigned to it by
the
Constitution, without regard to whether the functions are carried
out on
land owned by the United States or by others, and without
regard
to the jurisdictional status of the land upon which the
functions
are carried out. Where such functions
involve Federal use
of
property the Congress may, regardless of the jurisdictional status
of such
property, make such laws with respect to the property as may
be
required for effective carrying out of the functions. So, the
Congress
has enacted statutes prohibiting, under criminal penalties,
certain
dissemination of information pertaining to defense
installations,
(*see footnote NO. 33).
Moreover, the United States, in carrying
out Federal functions,
whether
military or civilian, may take such measures with respect to
safeguarding
of Federal areas (building of fences, posting of
sentries
or armed guards, limiting of ingress and egress, evicting of
trespassers,
etc.), regardless of the
281
jurisdiction
status of such areas, as may be necessary for the proper
carrying
out of the functions.
AGENCY RULES AND REGULATIONS: Beyond the
acts and omissions
defined
as criminal by statutes, certain agencies of the Federal
Government
have received from the Congress authority to establish
rules
and regulations for the government of the land areas under
their
management, and penalties are provided by statute for the
breach of
such rules and regulations; statutory authority also exists
for
these agencies to confer on certain of their personnel arrest
powers
in excess of those ordinarily had by private citizens.
However,
most Federal agencies do not now have such authority. In
the
absence of specific authority to make rules and regulations,
criminal
sanctions may not attach (regardless of the jurisdictional
status
of the lands involved) to violations of any such rules
282
or
regulations issued by the officer in charge of a area, except that
members
of the armed forces are subject always to the Uniform Code of
Military
Justice. It should be noted that
civilian Federal employees
in
various circumstances are subject to disciplinary action and that
members
of the public at large may be excluded from the Federal area.
The validity of rules and regulations
issued by the Secretary of
Agriculture
was challenged in United States v. Grimaud, 220 U.S. 506
(1911),
by persons charged with driving and grazing sheep on a forest
reserve
without a permit. In deciding that the
authority to make
administrative
rules was not an unconstitutional delegation of
legislative
power by Congress, and that the regulations of the
Secretary
were valid and had the force of law, the court said (p.
521):
That "Congress cannot delegate
legislative power to the
President is a principle universally
recognized as vital to the
integrity and maintenance of the system
of government ordained
by the Constitution." Field v. Clark, 143 U.S. 649, 692. But
the authority to make administrative
rules is not a delegation
of legislative power, nor are such rules
raised from an
administrative to a legislative character
because the violation
thereof is punished as a public offense.
It is true that there is no act of
Congress which, in express
terms, declares that it shall be unlawful
to graze sheep on a
forest reserve. But the statutes, from which we have quoted,
declare, that the privilege of using reserves for "all
proper
and lawful purposes" is subject to
the proviso that the person
so suing them shall comply "with the
rules and regulations
covering such forest
reservation." The same act makes it
an
offense to violate those regulations,
that is, to use them
otherwise than in accordance with the
rules established by the
283
Secretary. Thus the implied license under which the United
States had suffered its public domain to
be used as a pasture
for sheep and cattle, mentioned in Buford
v. Houtz, 133 U.S.
326, was curtailed and qualified by
Congress, to the extent
that such privilege should not be
exercised in contravention of
the rules and regulations.
Wilcox v. Jackson, 13 Pet. 498, 513.
If, after the passage of the act and the
promulgation of the
rule, the defendants drove and grazed
their sheep upon the
reserve, in violation of the regulations,
they were making an
unlawful use of the Government's
property. In doing so they
thereby made themselves liable to the
penalty imposed by
Congress.
284
And it
been held that rules and regulations issued pursuant to
congressional
authority supersede conflicting State law.
CONTROL OVER FEDERAL CONSTRUCTION:
Building codes and zoning.--
In
United States v. City of Chester, 144 F.2d 415 (C.A. 3, 1944), in
which
the city had attempted to require the United States Housing
Authority
to comply with local building regulations in the
construction
of war housing in an area not under Federal legislative
jurisdiction,
it was held (pp. 419-420):
The authority of the Administrator to
proceed with the building
of
the Chester project under the Lanham Act without regard to
the application of the Building
285
Code Ordinance of Chester is to be found
in the words of Clause
2 of Article VI of the Constitution of
the United States which
provides that the Constitution and the
laws of the United States
made in pursuance thereof shall be the
supreme law of the land.
The questions raised by the defendants
were settled in general
principle as long ago as the decision of
Mr. Chief Justice
Marshall in M'Culloch v. Maryland, 4
Wheat. 316, 405, 4 L.Ed.
579, wherein it was stated, "If any
one proposition could
command the universal assent of mankind,
we might expect it
would be this--that the government of the Union, though limited
in its powers, is supreme within its
sphere of action. * * *."
The
court added (p. 420):
A state statute, a local enactment or
regulation or a city
ordinance, even if based on the valid
police powers of a State,
must yield in case of direct conflict
with the exercise by the
Government of the United States of any
power it possesses under
the Constitution. * * *
This decision was cited with approval and
followed in Curtis v.
Toledo
Metropolitan Housing Authority, et al., Ohio Ops. 423, 78
N.E.2d
676 (1947); Tim v. City of Long Branch, 135 N.J.L. 549, 53
A.2d
164 (1947); and in United States v. Philadelphia, 56 F.Supp. 862
(E.D.Pa.,
1944), aff'd., 147 F.2d 291 (C.A. 3, 1945), cert. den., 325
U.S.
870. The only decision to the contrary
was rendered in Public
Housing
Administration v. Bristol Township, 146 F.Supp. 859 (E.D.
Pa.,
1956). Except for the last-cited
decision, in which a motion to
vacate
is now reported to have been granted, the results reached in
these
cases are substantially the same as that reached in Oklahoma
City v.
Sanders, 94 F.2d 323 (C.A. 10, 1938), in which it was
concluded
that local requirements could not be enforced against a
contractor
constructing buildings in an area of partial jurisdiction.
286
The Congress, by section 1 (b) of the
Lanham act (42 U.S.C. 1521
(b)),
had expressly authorized construction of
287
the
housing involved in the City of Chester case without regard to
State
or municipal ordinances, rules or regulations relating to plans
and
specifications or forms of contract.
However, as the trial court
indicated
in the Philadelphia case (56 F.Supp. 864), such a provision
was
unnecessary.
The case of Tim v. City of Long Branch,
supra, is the only
instance
which has been noted of attempted imposition, though
judicial
action, of zoning limitations of State or local governments
on use
of real property owned by the Federal Government. Other such
problems
have arisen, nevertheless. In a case
where the Federal
Government
was merely a lessee of privately owned property, however,
it was
held that the denial by a city zoning board of an application
made by
the lessor for the use of a lot as a substation post office
was not
unconstitutional as an unlawful regulation of property of the
Federal
Government. Mayor and City Council of
Baltimore v.
Linthicum,
170 Md. 245,183 Atl. 531 (1936). The matter
had been
considered
previously by a lower tribunal,
288
and the
court invoked the rule of res adjudicata as to all
contentions
made by the property owner, including constitutional
arguments. As to the contention that the application of
the zoning
ordinance
would be an unlawful regulation of property of the United
States
and an unlawful interference with the mails, the court noted
(183
At. 533):
* * * it may be observed that the
property is not owned by the
United States; there is only a lease
limited to ten years'
duration, or the duration of
appropriations for rentals, and the
lessee has only such property rights as
may be derived from the
owner. * * * Any interference of the
local police regulations
with the mails would be, at most, an
indirect one, and to pass
on the objection on that ground we should
have to consider the
rule and the decisions on local
regulations interfering only
incidentally with federal powers. Convington & C.Bridge Co. v.
Kentucky 154 U.S. 204, 14 S.Ct. 1087, 38
L.E.d. 962; 2 Willoughby,
United States Constitutional Law, Secs.
598, 601, 602, and 605.
We do not pass on it because it is
foreclosed as stated.
Contractor licensing.--The United States
Supreme Court has held
that a
State may not require that a contractor with the Federal
Government
secure a license from the State as a condition precedent
to the
of his contract. Leslie Miller, Inc. v.
Arkansas, 352 U.S.
187
(1956). After citing a Federal statute
requiring bids to be
awarded
to a responsible bidder whose bid was most advantageous to
the
Federal Government, and after noting that the Armed Services
Procurement
Regulations listed criteria for determining
responsibility
and that these criteria were similar to those
contained
in the
289
Arkansas
law as qualifying requirements for a license to operate as a
contractor,
the court said (pp. 189-190):
Mere enumeration of the similar grounds
for licensing under the
state statute and for finding
"responsibility" under the federal
statute and regulations is sufficient to
indicate conflict
between this license requirement which
Arkansas places on a
federal contractor and the action which
Congress and the
Department of Defense have taken to
insure the reliability of
person and compaction with the Federal
Government. Subjecting a
federal contractor to the Arkansas
contractor license
requirements would give the State's
licensing board a virtual
power of review over the federal
determination of
"responsibility" and would thus
frustrate the expressed federal
policy of selecting the lowest
responsible bidder. * * *
While it appears to be the weight of
authority that neither a
State
nor a local subdivision may impose its building codes or
license
requirements on contractors engaged in Federal construction,
it does
not follow that the contractor may ignore all State law. For
example,
the State's laws concerning negligence would continue to be
applicable,
and such negligence might be predicated upon the
contractor's
noncompliance with a State statute relating to safety
requirements. Thus, in Stewart & Co. v. Sadrakula, 309
U.S. 94
(1940),
it was held that, under the international law rule, such a
State
statute governed the rights of the parties to a negligence
action. While this case involved an area of
exclusive Federal
legislative
jurisdiction, that fact is not controlling on the issue
concerned. Obviously the statute also would have been
held
applicable
in the absence of legislative jurisdiction in the Federal
Government.
290
The
Supreme Court held that the application of such safety
requirements
would not interfere with the construction of the
building. In answer to the argument that compliance
with such
requirements
might increase the cost of the building, the court said
(p.
104), that such contention "ignores the power of Congress to
protect
the performance of the functions of the National Government
and to
prevent interference therewith through any attempted state
action."
In Penn Dairies, Inc., et al. v. Milk
Control Commission of
Pennsylvania,
318 U.S. 261 (1943), the Supreme Court said of a price
regulation
held applicable to a Federal contractor which would
incidentally
affect the Government (p. 269):
* * * We may assume that Congress, in aid
of its granted power
to raise and support armies, Article I,
Sec. 8, c. 12, and with
the support of the supremacy clause,
article VI, Sec. 2, could
declare state regulations like the
present inapplicable to sales
to the government. * * *
In the
same opinion, the court said also (p. 271):
Since the Constitution has left Congress
free to set aside local
taxation and regulation of government
contractors which burden
the national government, we see no basis
for implying from the
Constitution alone a restriction upon
such regulations which
Congress has not seen fit to impose,
unless the regulations are
shown to be inconsistent with
Congressional policy. * * *
The views expressed by the Supreme court
in this case concerning
the
power of Congress to create such immunity in Federal contractors
were
subsequently applied in Carson v. Roane-Anderson Company, 342
U.S.
232 (1952), in which it was held that Congress had immunized
contractors
of the Atomic Energy Commission from certain State taxes,
and
also
291
in
Leslie Miller, lnc. v. Arkansas, 352 U.S. 187 (1956), in which the
Supreme
Court concluded that the State's regulations relating to the
licensing
of contractors were in conflict with the regulations
established
by the Department of Defense and therefore were
inapplicable
to a contractor with that Department.
CHAPTER X
FEDERAL OPERATIONS NOT RELATED
TO LAND
STATE LAWS AND REGULATIONS RELATING TO
MOTOR VEHICLES: Federally
owned
and operated vehicles.--In an opinion by Justice Holmes, it was
concluded
by the Supreme Court that a State may not constitutionally
require
a Federal employee to secure a driver's permit as a
perquisite
to the operation of a motor vehicle in the course of his
federal
employment. Johnson v. Maryland, 254
U.S. 51 (1920). The
court
said (pp. 56-67):
Of course an employee of the United
States does not secure a
general immunity from state law while
acting in the course of
his employment. That was decided long ago by Mr. Justice
Washington in United States v. Hart, Pat.
C.C. 390. 5
Ops.Atty.Gen. 554. It very well may be that, when the United
States has not spoken, the subjection to
local laws would extend
to
general rules that might affect incidentally the mode of
carrying out the employment--as, for
instance, a statute or
ordinance regulating the mode of turning
at the corners of
streets.
Commonwealth v. Closson, 229 Massachusetts, 329. This
might stand on much the same footing as
liability under the
common law of a State to a person injured
by the driver's
negligence. But even the most unquestionable and those
concerning murder, will not be allowed to
control the conduct of
a marshal of the United States acting
under and in pur-
294
suance of the laws of the United
States. In re Neagle, 135 U.S.
1.
It seems to us that the immunity of the
instruments of the
United States from state control in the performance of their
duties extends to a requirement that they
desist from
performance until they satisfy a state
officer upon examination
that they are competent for a necessary
part of them and pay a
fee for permission to go on. Such a requirement does not merely
touch the Government servants remotely by
a general rule of
conduct; it lays hold of them in their
specific attempt to obey
orders and requires qualifications in
addition to those hat the
Government has pronounced
sufficient. It is the duty of the
department to employ persons competent
for their work and that
duty it must be presumed has been
performed. Keim v. United
States, 177 U.S. 290, 293.
Even
earlier, but on similar principles, the Comptroller of the
Treasury
had disallowed payment of a fee for registration of a
federally
owned motor vehicle. 115 Comp. Dec. 231
(1908).
In Ex parte Willman, 277 Fed. 819
(S.D.Ohio, 1921), the driver
of a
mail truck, on a street which was a post road, was held not to
be
subject to arrest, conviction, and imprisonment because the lights
on his
truck, which were those prescribed by the regulations of the
Post
Office department, did not conform to the requirements of a
State
statute. The court relied on Johnson v.
Maryland, supra, and
Ohio v.
Thomas, 173 U.S. 276 (1899), in reaching its conclusion.
An apparently contrary conclusion was
reached in Virginia v.
Stiff,
144 F.Supp. 169 (W.D.Va., 1956), in which the question was
presented
as to whether State regulations as to the maximum weight of
vehicles
using the highways were applicable to a truck owned and
operated
by the Federal Government, and engaged on Federal business.
In
holding such
295
regulations
to be applicable so as to subject the Government employee
truck
driver to a criminal penalty, the court stated that their
purpose
is to protect the safety of travellers and to protect the
roads
from unreasonable wear; that the State of Virginia authorizes
the use
of highways by overweight vehicles in case of emergency; and
that
the Department of Defense seeks permits from the State to
authorize
the passage of overweight vehicles. It
appears that in
this case
no facts were presented to indicate whether there was any
federally
imposed requirement upon the driver to operate the
overweight
truck, the defense being based merely on federal ownership
of the
truck and the fact of its being engaged on Government
business.
When Federal employees have failed to
comply with local traffic
regulations,
the courts have generally applied the test of whether
noncompliance
was essential to the performance of their duties.
Thus,
in Commonwealth v. Closson, 229 Mass. 329, 118 N.E. 653 (1918),
it was
held that a mail carrier is subject to the rules and
regulations
made by the street and park commissioners requiring a
traveller
to drive on the right side of the road and in turning. In
United
States v. Hart, 26 Fed. Cas. 193, No. 15,316 (C.C.D.Pa.,
18107),
it was held that an act of Congress prohibiting the stopping
of the
mail is not to be so construed as to prevent the arrest of the
driver
of a mail carriage when he is driving through a crowded city
at such
a rate as to endanger the lives of the inhabitants. In Hall
v.
Commonwealth, 129 Va. 738, 105 S.E. 551 (1921), it was held that
the
driver of a postal truck must comply with the State's speed laws.
The
court emphasized that no time schedules had been established by
the Post
Office Department which would require excessive speed.
That a Federal employee is not immune
from arrest for
noncompliance
with State traffic regulation where performance of his
duties
did not necessitate such noncompliance
296
is well
illustrated by the following excerpt from the opinion of the
court
in Oklahoma v. Willingham, 143 F.Supp. 445 (E.D.Okla., 1956,
(p.
448):
The State of Oklahoma has not only the
right hut the
responsibility to regulate travel upon
its highways. The power
of the state to regulate such travel has
not been surrendered to
the Federal Government. An employee of the Federal Government
must obey the traffic laws of the state
although he may be
traveling in the ordinary course of his
employment. No law of
the United States authorizes a rural mail
carrier, while engaged
in delivering mail on his route, to
violate the provisions of
the state those who use the highways.
Guilt or innocence is not involved, but
there is involved a
question of whether or not the
prosecution is based on an
official act of the defendant. There is nothing official about
how or when the defendant re-entered the
lane of traffic on the
highway.
There is no official connection between the acts
complained of and the official duties of
the mail carrier. The
mere fact that the defendant was on duty
and delivering mail
along his route does not present any federal
question and
administration of the work of the Post
Office Department does
not require a carrier, while delivering
mail, to drive his car
from a stopped position into the path of
an approaching
automobile. When he is charged with doing so, his defense is
under state law and is not different from
that of any other
citizen.
Where, on the other hand, the Federal
employee could not
discharge
his duties without violating State or local traffic
regulations,
it has been that he is immune from any liability under
State
or local law for such noncompliance.
Thus, in Lilly v. West
Virginia,
29 F.2d 61 (C.A. 4, 1928), the court
297
held
that a Federal prohibition agent, who struck and killed a
pedestrian
while pursuing a suspected criminal, was excepted from
limitations
of speed prescribed by a city ordinance, provided that he
acted
in good faith and with the acre that an ordinarily prudent
person
would have exercised under the circumstances, the degree of
care
being commensurate with the dangers.
The court said (p. 64):
The traffic ordinances of a city
prescribing who shall have the
right of way at crossings and fixing
speed limits for vehicles
are ordinarily binding upon officials of
the federal government
as upon all other citizens. Commonwealth v. Closson, 229 Mass.
329, 118 N.E. 653, L.R.A. 1918C, 939;
United States v. Hart, 26
Fed. Cas. No. 15,316, page 193; Johnson
v. Maryland, 254 U.S.
51, 41 S.Ct. 16, 65 L.Ed. 126. Such ordinances, however, are not
to be construed as applying to public
officials engaged in the
performance of a public duty where speed
and the right of way
are a necessity. The ordinance of Huntington makes no
exemption
in favor of firemen going to a fire or
peace officers pursuing
criminals, but it certainly could not
have been intended that
pedestrians at street intersections
should have the right of way
over such firemen or officers, or that
firemen or officers under
such circumstances should be limited to a
speed of 25 miles, or
required to slow down at intersections so
as to have their
vehicles under control. Such a construction would render the
ordinances void for unreasonableness in
so far as they applied
to firemen or officers engaged in duties,
in the performance of
which speed is necessary; and we think
that they should be
construed as not applicable to such officers,
either state or
federal, under such circumstances. State v. Gorham, 110 Wash.
330, 188 P.457, 9 A.L.R. 365; Farley v.
Mayor of New York City,
152 N.Y. 222, 46 N.E.D 506, 57 Am. St.
Rep. 511; Hubert v.
Granzow, 131 Minn. 361, 155 N.W. 204,
Ann. Cas.
298
1917D, 563; State v. Burton, 41 R.I. 303,
103 A. 962, L.R.A.
1918F, 559; Edberg v. Johnson, 149 Minn.
395, 184 N.W. 12.
Similarly,
in State v. Burton, 41 R.I. 303, 103 Atl. 962 (1918), it
was
held that a member of the United States naval reserve, driving a
motor
vehicle along a city street in the performance driving a motor
vehicle
along a city street in the performance of an urgent duty to
deliver
a dispatch under instructions from his superior officer, is
not
amenable to local law regulating the speed of motor vehicles.
State
laws, the court held, are subordinate to the exigencies of
military
operations by the Federal Government in time of war.
Closely allied to these cases relating to
the applicability of
State
and local traffic regulations to Federal employees is the case
of
Bennett v. Seattle, 22 Wash.2d 455, 156 P.2d 685 (1945), in which
State
traffic regulations were held to have been suspended as a
consequence
of certain action taken by the military.
Under the facts
of the
case, it appears that the plaintiff in a negligence action was
walking
on the right, instead of the left, side of the street, the
latter
ordinarily being required by State law.
The court did not
regard
the State law as applicable in view of the closing of the
particular
street to the public by Army officers. As to the Army's
action,
the court said (156 P.2d 687):
The highway was closed to general public
travel in December,
1941.
Public authority acquiesced in the action taken by the
army officers. The appellant does not question the right and
power of the officers of the army to
close the part of Sixteenth
avenue from east Marginal way to the bridge
to public travel and
to admit into the bridge to public travel
and to admit into the
closed area only such Buses and
automobiles of employees of the
Boeing plant as they deemed advisable;
but it contends that,
notwithstanding this, such part of
Sixteenth avenue did not
cease to be a public highway and that the
statutory rules of the
road still applied.
* * * * *
299
The action taken in closing the highway
to public use did not
infringe upon, or interfere with, the
exercise of any
prerogative of sovereignty or any
governmental function of the
state or its legal subdivisions. The appellant, in maintaining
its streets, acts in a proprietary
capacity, and it acquired no
right in a statutory rule of conduct by a
pedestrian on the
highway that would prevent its temporary
suspension when such
became necessary or convenient by an
exercise of a war power of
the kind we are new considering.
Vehicles operated under Federal
contract.--State laws which
constitutionally
cannot have any application to motor vehicles owned
and
operated by the Federal Government may, in many instances, be
applicable
to motor vehicles which are privately owned but which,
under
contract with the Federal Government, are used for many of the
same
purposes for which federally owned vehicles are used. A
distinction
must be made on the basis of ownership; the ownership may
be of
decisive significance.
Thus, it has been held that a State may
tax vehicles which are
used
in operating a stage line and make
constant use of the
highways,
notwithstanding the fact that they carry mail under a
Federal
contract; moreover, such tax may be measured by gross
receipts,
even though over on-half of the taxes income is derived
from
mail contracts. Alward v. Johnson, 282
U.S. 509 (1931). The
Supreme
Court said (p. 514):
Nor do we think petitioner's property was
entitled to exemption
from state taxation because used in
connection with the
transportation of the mails. There was no tax upon the contract
for such carriage; the burden laid upon
the property employed
affected operations of the Federal Government
only remotely.
Railroad Co. v. Peniston, 18 Wall. 5, 30;
Metcalf & Eddy v.
Mitchell,
300
269 U.S. 514. The facts in Panhandle Oil Co. v. Mississippi,
277 U.S. 218, and New Jersey Bell Tel.
Co. v. State Board, 280
U.S. 338, were held to establish direct
interference with or
burden upon the exercise of a Federal
right. The principles
there applied are not controlling here.
In
reliance on this case, it was concluded, in Crowder v. Virginia,
197 Va.
96, 87 S.E.2d 745 (1955), app. dism., 250 U.S. 957, that a
carrier
is not exempt from a State's gross receipts tax even though,
under a
contract with the Post Office Department, it was engaged in
the
interstate carriage of mails, under direction from the Government
as to
routes, schedules and termini. A
contractor engaged in
transporting
mail is not exempt from payment of State motor fuel
taxes. Op.A.G., Ill., p. 219, No. 2583 (Apr. 21,
1930). Nor is a
contractor
who is engaged in work for the Federal Government on a
cost-plus-a-fixed-fee
basis. Id. p. 252, No. 199 (Nov. 19,
1940).
In
Baltimore & A.R.R. v. Lichtenberg, 176 Md. 383, 4 A.2d 734 (1939),
app.
dism., 308 U.S. 525, a contractor with the federal Government
for the
transportation of workmen to a Government project was held
subject
to State regulation as a common carrier.
In Ex parte
Marshall,
75 Fla. 97, 77 So. 869 (1918), it was held that a bus
company
which enters into a contract with the military to transport
troops
between a military camp and a city, subject to terms and
conditions
specified in the contract, the United States having no
other
interest or ownership in or control over the buses, is liable
to pay
a local license tax for the operation of the buses. In
reliance
on
301
the
decision in Ex parte Marshall, supra, it was held in State v.
Wiles,
116 Wash. 387, 199 P. 749 (1921), that a contractor engaged in
carrying
mail for the United States within the State is not exempt
from a
State statute making it unlawful to operate motor trucks on
the
highways without first securing a license therefor, the fee
varying
according to the capacity of the truck.
The court said that
such a
fee is not a direct tax on the property of the Federal
Government
or on instrumentalities used by it in the discharge of its
constitutional
functions, but at most an indirect and immaterial
interference
with the conduct of government business.
Even though title to a vehicle is not in
the Federal Government,
a State
vehicle tax may not be levied on an automobile owned by a
Federal
instrumentality has been declared to be immune from State
taxes. See Roberts v. Federal Land Bank of New
Orleans, 189 Miss.
898,
196 So. 763 (1940). And in an early
case, United States v.
Barney,
24 Fed. Cas. 1014. No. 14,525 (D.Md., circa 1810), it was
held
that a Federal statute prohibiting the stoppage of the mails
serves
to prevent the enforcement, under State law, of a lien against
privately
owned horses used to draw mail carriages.
STATE LICENSE, INSPECTION AND RECORDING
REQUIREMENTS: Licensing
of
Federal activities.--The case of United States v. Murray, 61
F.Supp.
415 (E.D.Mo., 1945), involved a holding that a local
subdivision
could not require an inspector employed by the Office of
Price
Administration
302
to
conform with local requirements covering food handlers. The court
said
(p. 417):
It is fundamental that the officers,
agents, and instruments of
the United States are immune from the
provisions of a city
ordinance in the performance of their
duties. This principle of
law, while having exceptions not here
involved, applies to the
ordinance alleged to have been the basis
of the defendants'
conduct in this case. It is the duty of the Government and its
agencies to employ persons qualified and
competent for their
work.
That duty it must be presumed to have performed, and a
city cannot by ordinance impose further
qualifications upon such
officers and agents as a condition
precedent to the performance
and execution of duties prescribed under
federal law.
Applicability of inspection laws to
Federal functions.--The
United States
Supreme Court has held that a State's inspection laws
generally
are inapplicable to activities of the Federal
303
Government,
even though such laws may be for the protection of the
general
public. Mayo v. United States, 319 U.S.
441 (1943). In that
case a
State was held to be without consti-
304
tutional
power to exact an inspection fee with respect to fertilizers
which
the Federal Government owned and distributed within the State
pursuant
to provisions of the Soil Conservation and Domestic
Allotment
Act. The court said (pp. 447-448):
These inspection fees are laid directly
upon the United States.
They are money exactions the payment of
which, if they are
enforceable, would be required before
executing a function of
government. Such a requirement is prohibited by the supremacy
clause. * * * These fees are like a tax
upon the right to carry
on the business of the post office or
upon the privilege of
selling United States bonds through
federal officials.
Admittedly the state inspection service
is to protect consumers
from fraud but in carrying out such
protection, the federal
government must be left free. This freedom is inherent in
sovereignty. The silence of Congress as to the subjection of
its instrumentalities, other than the
United States, to local
taxation or regulation is to be
interpreted in the setting of
the applicable legislation and the
particular exaction. Shaw v.
Gibson Zahniser Oil Corp., 276 U.S. 575,
578. But where, as
here, the governmental action is carried
on by the United States
itself and Congress does not
affirmatively declare its
instrumentalities or property subject to
regulation or taxation,
the inherent freedom continues.
Recording requirements.--It has also been
held that the Federal
Government
is not required to comply with State recording
requirements
in order to protect its rights. In the
Matter of
American
Boiler Works, Inc., Bankrupt, 220 F.2d 319 (C.A. 3, 1955);
see
also Norman Lumber Co. v. United States, 223 F.2d 868 (C.A. 4
1955). In In re Read-York, Inc., 152 F.2d 313 (C.A.
7, 1945), it was
held
that the failure
305
of the
Federal Government to record a contract for the manufacture
and
delivery of gliders to the Army, in compliance with Wisconsin's
public
policy and statutes, did not prevent title from passing to the
Federal
Government, upon the making of partial payments, as against
the
manufacturer's trustee in bankruptcy.
These results are in
accord
with an earlier decision by the United States Supreme Court,
in
United States v. Snyder, 149 U.S. 210 (1893), in which it was held
that
the lien imposed by Federal statute to secure the payment of a
Federal
tax is not subject to the requirement of a State statute that
liens
shall be effective only if recorded in the manner specified by
the
State statute. In United States v.
Allegheny County, 322 U.S.
174
(1944), the court said (p. 183):
* * * Federal statutes may declare liens
in favor of the
Government and establish their priority
over subsequent
purchasers or lienors irrespective of
state recording acts. * *
* Or the Government may avail itself, as
any other lienor, of
state recording facilities, in which
case, while it has never
been denied that it must pay
nondiscriminatory fees for their
use, the recording may not be made the
occasion for taxing the
Government's property.* * *
The courts of the State of Virginia have
also recognized that
State
registration requirements can have no application to the
Federal
Government. In United States v. William
R. Trigg Co., 115
Va.
272, 78 S.E. 542 (1912), the question was presented as to whether
the
Federal Government is required to comply with the State registry
laws
and have its contracts recorded in order to make effective the
liens
reserved in such contracts, as against those who have no prior
liens. The court said (78 S.E. 544):
This power to contract, which is an
incident of the sovereignty
of the United States, and is, as stated
by Judge Marshall,
coextensive with the duties and powers of
government, carries
with it complete exemption of the
306
government from all obligation to comply
with State registry
laws, for the reason that it would
grievously retard, impede,
and burden the sovereign right of the
government to subject it
to the operation of such laws. * * *
If the states had the power to interfere
with the operations of
the federal government by compelling
compliance on its part with
state laws, such as the registry
statutes, then, in the language
of the Supreme Court, the potential
existence of the government
would be at the mercy of state
legislation. * * *
While State recording requirements cannot
in any way be
applicable
to the Federal Government, and while noncompliance
therewith
will not serve to dilute the right of the Federal
Government,
it is clear that should the Federal Government decide to
avail
itself of State recording facilities it must pay to the State a
reasonable
fee therefor, but it cannot be subjected, without its
consent,
to State taxes which may be imposed upon such recordation.
Federal
Land Bank of New Orleans v. Crosland, 261 U.S. 374 (1923).
In
Pittman v. Home Owners' Loan Corp., 308
U.S. 21 (1939), it was
held
that the Maryland tax on mortgages, graded according to the
amount
of the loan secured and imposed in addition to the ordinary
registration
fee as a condition to the recordation of the instrument,
cannot
be applied to a mortgage tendered for record by the Home
Owners'
Loan Corporation, in view of the provisions of the Home
Owners'
Loan act which declares the corporation to be an
instrumentality
of the Federal Government and which provides for its
exemption
from all State and municipal taxes. In
the course of its
opinion,
the court said (pp. 32-33):
307
We assume here, as we assumed in Graves
v. New York ex rel.
O'Keefe, 306 U.S. 466, that the creation
of the Home Owners'
Loan Corporation was a constitutional
exercise of the
Corporation through which the national
government lawfully acts
must be regarded as governmental
functions and as entitled to
whatever immunity attaches to those
functions when performed by
the government itself through its departments.
McCulloch v.
Maryland, 4 Wheat. 316, 421, 422; Smith
v. Kansas City Title
Co., 255 U.S. 180, 208, 209; Graves v.
New York ex rel. O'Keefe,
supra.
Congress has not only the power to create a corporation
to facilitate the performance of
governmental functions, but has
the power to protect the operations thus
validly authorized. "A
power to create implies a power to
preserve." McCulloch v.
Maryland, supra, p. 426. This power to preserve necessarily
comes within the range of the express
power conferred upon
Congress to make all laws which shall be
necessary and proper
for carrying into execution all powers
vested by the
Constitution in the Government of the
United States. Const.
Art. I, Sec. 8, par. 18. In the exercise
of this power to
protect the lawful activities of its
agencies, Congress has the
dominant authority which necessarily
inheres in its action
within the national field. The Shreveport
Case, 234 U.S. 342,
351, 352. The exercise of this protective power in relation to
state taxation has many
illustrations. See, e.g., Bank v.
Supervisors, 7 Wall. 26, 31; Choate v.
Trapp, 224 U.S. 665, 668,
669; Smith v. Kansas City Trapp Co.,
supra, p. 207; Trotter v.
Tennessee, 290 U.S. 354, 356; Lawrence v.
Shaw, 300 U.S. 245,
249.
In this instance, Congress has undertaken to safeguard the
operations of the Home Owners' Loan
Corporation by providing the
described immunity. As we have said, we construe this provision
as embracing
308
and prohibiting the tax in question. Since Congress had the
constitutional authority to enact this
provision, it is binding
upon this Court as the supreme law of the
land. Const. Art. VI.
APPLICABILITY OF STATE CRIMINAL LAWS TO
FEDERAL EMPLOYEES AND
FUNCTIONS:
Immunity of Federal employees.--It is well established
that an
employee of the Federal Government is not answerable to State
authorities
for acts which he was authorized by Federal laws to
perform. In In re Neagle, 135 U.S. 1 (1890), it was
held that the
State
of California had no criminal jurisdiction over an acting
deputy
United States marshal who committed a homicide in the course
of
defending a United States Supreme Court justice while the latter
was in
that State in the performance of his judicial functions; that
a wit
of habeas corpus is an appropriate remedy for freeing such
employee
from the custody of State authorities; and that the Federal
courts
may determine the propriety of the employee's conduct under
Federal
law. The court said (p. 75):
* * * To the objection made in argument,
that the prisoner is
discharged by this writ from the power of
the state court to try
him for the whole offence, the reply is,
that if the prisoner is
held in the state court to answer for an
act which he was
authorized to do by the law of the United
States, which it was
his duty to do as marshal of the United
States, and if in doing
that act he did no more than what was
necessary and proper for
him to do, he cannot be guilty of a crime
under the law of the
State of California. When these thins are shown, it is
established that he is innocent of any
crime against the laws of
the State, or of any authority
whatever. There is no occasion
for any further trial in the state court,
or in any court. The
Circuit Court of the
309
United States was as competent to
ascertain these facts as may
other tribunal, and it was not at all
necessary that a jury
should be impanelled to render a verdict
on them. * * *
The underlying constitutional
considerations prompting the
conclusion
that a State may not prosecute a Federal employee for acts
authorized
by Federal law were set forth in some detail in Tennessee
v.
Davis, 100 U.S. 257 (1880). In that
case it was held that a State
indictment
of a Federal revenue agent for a homicide committed by him
in the
course of his duties is removable to a Federal court. In its
opinion,
the court said (pp. 262-263):
Has the Constitution conferred upon
Congress the power to
authorize the removal, from a State court
to a Federal court, of
an
indictment against a revenue officer for an alleged crime
against the State, and to order its
removal before trial, when
it appears that a Federal question or a
claim to a Federal right
is raised in the case, and must be
decided therein? A more
important question can hardly be
imagined. Upon its answer may
depend the possibility of the general
government's preserving
its own existence. As was said in Martin v. Hunter (1 Wheat.
363), "the general government must
cease to exist whenever it
loses the power of protecting itself in
the exercise of its
constitutional powers." It can act only through its officers
and agents, and they must act within the
States. If, when thus
acting, and within the scope of their
authority, those officers
can be arrested and brought to trial in a
State, yet warranted
by the Federal authority they possess,
and if the general
government is powerless to interfere at
once for their
protection,--if their protection must be
left to the action of
the State court,--the operation of the
general government may at
any time be arrested at the will of one
of its members. The
legis-
310
lation of a State may be unfriendly. It may affix penalties to
acts done under the immediate direction
of the national
government, and in obedience to its
laws. It may deny the
authority conferred by those laws. The State court may
administer not only the laws of the
State, but equally Federal
law, in such a manner as to paralyze the
operations of the
government. And even if, after trial and final judgment in the
State court, the case can be brought into
the United States
court for review, the officer is
withdrawn from the discharge of
his duty during the pendency of the
prosecution, and the
exercise of acknowledge Federal power
arrested.
We do not think such an element of
weakness is to be found in
the Constitution. The United States is a government with
authority extending over the whole
territory of the Union,
acting upon the States and upon the
people of the States. While
it is limited in the number of its
powers, so far as its
sovereignty extends it is supreme. No State government can
exclude it from the exercise of any
authority conferred upon it
by the Constitution, obstruct its
authorized officers against
its will, or withhold from it, for a
moment, the cognizance of
any subject which that instrument has
committed to it.
The principle that a Federal official or
employee is not liable
under
State law for act done pursuant to Federal authorization has
been
applied in many instances. Thus, it has
been held that a
State's
laws relating to homicide or assault cannot be enforced
against
a Federal employee who, while carrying out his duties,
committed
a homicide or assault in the course of making an arrest,
maintaining
the peace, or pursuing a fugitive. Brown v. Cain, 56
F.Supp.
56 (E.D.Pa., 1944); Castle v. Lewis, 254 Fed. 917 (C.A. 8,
1918);
Ex parte Dickson, 14 F.2d 609 (N.D.N.Y., 1926); Ex parte
Warner,
21 F.2d 542 (N.D.Okla., 1927); In re Fair, 100 Fed. 149 (C.C.
311
D.
Neb., 1900); In re Laing, 127 Fed. 213 (C.C.S.D.W.Va., 1903);
Kelly
v. Georgia, 68 Fed. 652 (S.D.Ga., 1895); North Carolina v.
Kirkpatrick,
42 Fed. 689 (C.C.W.D.N.C., 1890); United States v.
Fullhart,
47 Fed. 802 (C.C.W.D.Pa., 1891); United States v. Lewis,
129
Fed. 823 (C.C.W.D.Pa., 1904), aff'd., 200 U.S. 1 (1906); United
States
v. Lipssett, 156 Fed. 65 (W.D. Mich., 1907).
It has likewise been held that a United
States marshal cannot be
subjected
to arrest and imprisonment by a State for acts done
pursuant
to the commands of a writ issued by a Federal court.
Anderson
v. Elliott, 101 Fed. 609 (C.A. 4, 1900), app. dism., 22
S.Ct.
930, 46 L.Ed. 1262 (1902); Ex parte Jenkins, 13 Fed. Cas. 445,
No.
7,259 (C.C.E.D.Pa., 1953). A State militia
officer who, under
the
orders of a governor of a State, employs force to resist and
prevent
a United States marshal from executing process issued under a
Federal
decree is subject to punishment for violating the laws of the
United
States. United States v. Bright, 24
Fed. Cas. 1232, No.
14,647
(C.C.D.Pa., No. 15,320 (C.C.D.Md., 1845), Justice Taney held
that on
an indictment for obstructing the mails it is no defense that
a
warrant had been issued under State law in a civil suit against the
mail
carrier.
Obstruction of Federal functions.--It has
been held in a number
of
cases that State laws will not be applied to Federal employees or
their
activities where the application of such laws would serve to
obstruct
the accomplishment of legitimate Federal objectives. Thus,
a State
law prohibiting the carrying of arms may not be applied to a
deputy
United States marshal seeking to make an arrest. In re Lee,
46 Fed.
59 (D.Miss., 1891), (but this case was reversed--47 Fed. 645-
-on the
basis of a Federal statute which limited the authority of
marshals
to the State for which they were appointed.
Marshals now
may
carry firearms, nevertheless--see U.S.C. 3053). A State statute
providing
for the punishment of one who maliciously threatens to
accuse
a person of a crime in or-
312
der to
compel him to do an act has no application to a United States
pension
examiner who is charged with the duty of investigating
fraudulent
pension claims. In re Waite, 81 Fed.
359 (N.D.Iowa,
1897),
app. dism., 180 U.S. 635. Nor may a
State proceed against a
Federal
military officer for allegedly disturbing the peace in
clearing
a roadway of civilians to enable a military company to
proceed
to a place where a National Guard recruitment program was
being
conducted, it has been held. In re
Wulzen, 235 Fed. 362 (S.D.
Ohio,
1916).
Nearly all the case cited immediately
above involved the
release,
by a Federal court, on a writ of habeas corpus, of a
prisoner
from State custody. On the other hand,
a prisoner held
pursuant
to Federal authority is beyond the reach of the pursuant to
State
for release by writ of habeas corpus.
See Adbeman v. Booth, 21
How.
506 (1859); Tarble's Case, 13 Wall. 397 (1871). Similarly,
property
obtained by a United States marshal by virtue of a levy of
execution
under a judgment of a Federal court may not be recovered by
an
action for replevin in a State court.
See Covell v. Heyman, 111
U.S.
176 (1884). In Ex parte Robinson, 20
Fed. Cas. 965, No. 11934
(C.C.S.D.Ohio,
1856), it was held that a Federal court may order the
discharge
of a Federal marshal who was held in State custody for
contempt
because of his refusal to produce certain persons named in a
writ of
habeas corpus issued by a State judge.
Liability of employees acting beyond scope of employment.--
Federal
officials and employees are not, of course, above the laws of
the
State. Whatever their exemption from
State law while engaged in
performing
their Federal functions, this exemption does not provide
an
immunity from arrest for the commission of a felony not related to
the
carrying out of the functions. United
States v. Kirby, 7 Wall.
482(1868). In In re lewis, 83 Fed. 159 (D.Wash., 1897),
it was
stated
that a Federal officer who, in the performance of what he
conceives
to be his official duty, transcends his au-
313
thority
and invades private rights, is liable to the individuals
injured
by his actions (however, it has been held that absent
criminal
intent he is not liable under the criminal laws of the
State). Employment as a mail carrier does not
provide the basis for
an
exemption from the penalty under a State statute prohibiting the
carrying
of concealed weapons, in the absence of a showing of
"authority
from federal government empowering him as a mail carrier
to
carry weapons in a manner prohibited by state laws." Hathcote v.
State,
55 Ark. 183, 17 S.W. 721 (1891).
However, even when a soldier
is
subject to punishment by a State, for an act not connected with
his
duties as a soldier, when the punishment will serve to interfere
with
the performance of duties owned by him to the Federal Government
a
Federal court will require utmost good faith on the part of the
State
authorities, and any unfair or unjust discrimination against
the
offender because he is a soldier, or departure from the strict
requirements
of the law, or any cruel or unusual punishment, may be
inquired
into by the federal courts in proceedings instituted by the
soldier's
commanding officer. The imposition of a
sentence of sixty
days
for an offense which did not result in injury to person or
property
was held unwarranted, and the court discharged the soldier
on a
writ of habeas corpus. Ex parts
Schlaffer, 154 Fed. 921
(S.D.Fla.,
1907).
LIABILITY OF FEDERAL CONTRACTORS TO STATE
TAXATION: Original
immunity
of Federal contractors.--In Panhandle Oil Company v. Knox,
277
U.S. 218 (1928), it was held that a State tax imposed on dealers
in
gasoline for the privilege of selling, and measured at so many
cents
per gallon of gasoline sold, is void under the Federal
Constitution
as applied to sales to instrumentalities of the Federal
Government,
such as the Coast Guard Fleet and a veterans' hospital.
In Graves
v. Texas Company, 298 U.S. 393 (1939), the court struck
down as
violative of the Constitution, when applied to sales to the
Federal
Government, a State tax providing that, "every distributor,
refiner,
retail dealer or storer of gaso-
314
line *
* * shall pay an excise tax of six cents ($0.06) per gallon
upon
the selling, distributing, storing or withdrawing from storage
in this
State for any use, gasoline * * *".
The court held that a
tax on
storage, or withdrawal from storage, essential to sales of
gasoline
to the Federal Government, is as objectionable,
constitutionally,
as a tax upon the sales themselves.
However, even
in that
day it was held that a tax was not objectionable merely
because
the person upon whom it was imposed happened to be a
contractor
of a government Metcalf & Eddy v. Mitchell, 269 U.S. 514
(1926).
Later view of contractors' liability.--In
the decisions rendered
by the
Supreme Court, beginning in 1937 to date, the earlier
decisions
have not been followed. New tests for
measuring the
validity
of State taxes on federal contractors were devised in James
v.
Dravo Contracting Co., 302 U.S. 134 (1937).
One of the issues
involved
in that case was whether a gross sales and income tax
imposed
by a State on a Federal contractor doing work on a Federal
dam is
invalid on the ground that it lays a direct burden upon the
Federal
Government. In sustaining the validity
of the tax, the court
observed
(1) that the tax is not laid upon the Federal Government,
its
property or officers; (2) that it is not laid upon an
instrumentality
of the Federal Government; and (3) that it is not
laid
upon the contract of the Federal Government. The decision in the
Panhandle
case, supra, was limited to the facts involved in that
case. The fact that the State the State tax might
increase the price
to the
Federal Government did not, the court indicated, render it
constitutionally
objectionable. In answer to the
argument that a
State
might, conceivably, increase the tax from 2% to 50%, the court
said
(302 U.S. 161):
* * * The argument ignores the power of
Congress to protect the
performance of the functions of the
National Government and to
prevent interference there with through
any attempted state
action. * * *
315
In Alabama v. King & Boozer, 314 U.S.
1 (1941), the court not
only
made a further departure from the doctrine of the Panhandle
case,
but it expressly overruled the decision in that case. Involved
was a
sale of lumber by King & Boozer to "cost-plus-a-fixed-fee"
contractors
for use by the latter in constructing an army camp for
the
Federal Government. The question
presented for the Federal
Government. The question presented for decision was whether
the
Alabama
sales tax with which the seller was chargeable, but which he
was
required to collect from the buyer, infringes any constitutional
immunity
of the Federal Government from State taxation.
In
sustaining
the tax, the court said (pp. 8-9):
* * * The Government, rightly we think,
disclaims any contention
that the Constitution, unaided by
Congressional legislation,
prohibits a tax exacted from the
Congressional legislation,
prohibits a tax exacted from the
contractors merely because it
is passed on economically, by the terms
of the contract or
otherwise, as a part of the construction
cost to the Government.
So far as such a non-discriminatory state
tax upon the
contractor enters into the cost of the
materials to the
Government, that is but a normal incident
of the organization
within the same territory of two
independent taxing
sovereignties. The asserted right of the one to be free of
taxation by the other does not spell
immunity from paying the
added costs, attributable to the taxation
of those who furnish
supplies to the Government and who have
been granted no tax
immunity. So far as a different view has prevailed, see
Panhandle Oil Co. v. Knox, supra; Graves
v. Texas Co., supra, we
think it no longer tenable. * * *
The
court rejected the Government's contention that the legal
incidence
of the tax was on the Federal Government (p. 14):
We cannot say that the contractors were
not, or that the
Government was, bound to pay the purchase
price, or that the
contractors were not the purchasers on
whom the statute lays the
tax.
The added circum-
316
stance that they were bound by their contract
to furnish the
purchased material to the Government and
entitled to be
reimbursed by it for the cost, including
the tax, no more
results in an infringement of the
Government immunity than did
the tax laid upon the contractor's gross
receipts from the
Government in James v. Dravo Contracting
Co., supra. * * *
Immunity of Federal property in
possession of a contractor.--
Where,
however, the tax is on machinery owned by the Federal
Government,
or where the tax imposed by a State on a contractor of
the
Federal Government is based, in part, upon the value of the
machinery
which is owned by the Federal Government but which is
installed
in the contractor's plant, the tax is objectionable on
constitutional
grounds. Thus, in United States v.
Allegheny County,
322
U.S. 174 (1944), the court, in holding such a tax to be invalid,
said
(pp. 182-183):
Every acquisition, holding, or
disposition of property by the
Federal Government depends upon proper
exercise of a
constitutional grant of power. In this case no contention is
made that the contract with Mesta is not
fully authorized by the
congressional power to raise and sport
armies and by adequate
congressional authorization to the contracting
officers of the
War Department. It must be accepted as an act of the Federal
Government warranted by the Constitution
and regular under
statute.
Procurement policies so settled under
federal authority may not
be defeated or limited by state law. The purpose of the
supremacy clause was to avoid the intro-
317
duction of disparities, confusions and
conflicts which would
follow if the Government's general
authority were subject to
local controls. The validity and construction of contracts
through which the United States is
exercising its constitutional
functions, their consequences on the
rights and obligations of
the parties, the titles or liens which
they create or permit,
all present questions of federal law not
controlled by the law
of any State. * * *
The
court added (pp. 188-189):
A State may tax personal property and
might well tax it to one
in whose possession it was found, but it
could hardly tax one of
its citizens because of moneys of the
United States which were
in his possession as Collector of
Internal Revenue, Postmaster,
Clerk of the United States Court, or
other federal officer,
agent, or contractor. We hold that Government-owned property,
to the full extent of the Government's
interest therein,s immune
from taxation, either as against the
Government itself or as
against one who holds it as a bailee.
The facts in the Allegheny case were
distinguished from those
involved
in Esso Standard Oil Co. v. Evans, 345 U.S. 496 (1953), in
which
the Supreme Court sustained a State tax upon the storage of
gasoline;
the fact that the gasoline was owned by the Federal
Government
did not, the court held, relieve the storage company of
the
obligation to pay the tax. The court
said (pp. 499-500):
This tax was imposed because Esso stored
gasoline. It is not,
as the Allegheny County tax was, based on
the worth of the
government property. Instead, the worth of the government
property. Instead, the amount collected is graduated in
accordance with the exercise of Esso's
privilege to engage in
such operations;
318
so it is not "on" the federal
property as was Pennsylvania's.
Federal ownership of the fuel will not
immunize such a private
contractor from the tax on storage. It may generally, as it did
here, burden the United States
financially. But since James v.
Dravo Contracting Co., 302 U.S. 134, 151,
this has been no fatal
flaw.
We must look further, and find either a stated immunity
created by Congress in the exercise of a
constitutional power,
or one arising by implication from our
constitutional system of
dual government. Neither condition
applies to the kind of
governmental operations here
involved. There is no claim of a
stated immunity. And we find none implied. The United States,
today, is engaged in vast and complicated
operations in business
fields, and important purchasing,
financial, and contract
transactions with private
enterprise. The Constitution does not
extend sovereign exemption from state taxation
to corporations
or individuals, contracting with the
United States, merely
because their activities are useful to
the Government. We hold,
therefore, that sovereign immunity dies n
prohibit this tax.
Economic burden of State taxation on the
United States.--The
Supreme
Courts' emphasis of the legal incidence, test, as
distinguished
from the rejected test of the economic consequences, is
best
illustrated in Kern-Limerick, Inc. v. Scurlock, 347 U.S. 110
(1954). In that case, the court held that a State
tax of 2% of the
gross
receipts from all sales in the State could not be applied to
transactions
whereby private contractors procured two tractors for
use in
constructing a naval ammunition depot under a cost-plus-a-
fixed-fee
contract which provided that the contractor should act as a
purchasing
agent for the Federal Government and that title to the
purchased
articles should pass directly from the vendor to the
Federal
Government, with the latter being solely obligated to
319
pay for
the articles. The Supreme Court said
(pp. 122-123):
We find that the purchaser under this
contract was the United
States.
Thus, King & Boozer is not controlling for, thought the
Government also bore the economic burden
of the state tax in
that case, the legal incidence of that
tax was held to fall on
the independent contractor and not upon
the United States. The
doctrine of sovereign immunity is so
embedded in constitutional
history and practice that this Court
cannot subject the
Government or its official agencies to
state taxation without a
clear congressional mandate. No instance of such submission is
shown.
Nor do we think that the drafting of the
contract by the Navy
Department to conserve Government funds,
if that was the
purpose, changes the character of the
transaction. As we have
indicated, the intergovernmental
submission to taxation is
primarily a problem of finance and
legislation. But since
purchases by independent contractors of
supplies for Government
construction or other activities do not
have federal immunity
from taxation, the form of contracts,
when governmental immunity
is not waived by Congress, may determine
the effect of state
taxation on federal agencies, for
decisions consistently
prohibit taxes levied on the property or
purchases of the
Government itself.
Legislative exemption of Federal
instrumentalities.--The Supreme
Court,
in the first of the two excerpts quoted above from its opinion
in King
& Boozer, made reference to legislative exemption. Such
legislative
exemption of instrumentalities of the Federal Government
has been
sustained in two relatively recent cases.
In federal Land
Bank of
St. Paul v. Bismarck Lumber Co., 314 U.S. 95 (1941), the
Supreme
Court held that statutory exemption from State taxation was a
good
defense to a State's attempt to collect a sales tax on lumber
purchased
by the Federal Land Bank for repairs to a farm
320
which
it had acquired by foreclosure. The
Supreme Court said (pp.
102-103):
Congress has constitutionally
created. This conclusion follows
naturally from the express grant of power to Congress "to make
all laws which shall be necessary and
proper for carrying into
execution all powers vested by the
Constitution in the
Government of the United States. Const. Art. I, Sec. 8, par.
18." Pittman v. Home Owners' Loan Corp., 308 U.S. 21, 33, and
cases cited. We have held on three occasions that Congress has
authority to prescribe tax immunity for
activities connected
with, or in furtherance of, the lending
functions of federal
credit agencies. Smith v. Kansas City Title & Trust Co.,
supra;
Federal Land Bank v. Crosland, 261 U.S.
374; Pittman v. Home
Owners' Loan Corp., supra. * * *
Similarly,
in Carson v. Roane-Anderson Company, 342 U.S. 232 (1952),
the
Supreme Court held that, under the provisions of the Atomic
Energy
Act, Tennessee could not enforce its sales tax on sales by
third
persons to contractors of the Atomic Energy Commission. In
sustaining
the immunity provided by the Atomic Energy Act, the
Supreme
court said (pp.233-234):
* * * The constitution power of Congress
to protect any of its
agencies from state taxation (Pittman v.
Home Owners' Loan
Corporation, 308 U.S. 21; Federal Land
Bank v. Bismarck Co., 314
U.S. 95) has long been recognized as
applying to those with whom
it has made authorized contracts. See Thomson v. Pacific R.
Co., 9 Wall. 579, 588-589; James v. Dravo
Contracting Co., 302
U.S. 134, 160-161. Certainly the policy behind the power of
Congress to create tax immunities does
not turn on the nature of
the agency doing the work of the
Government. The power stems
from the power
321
to preserve and protect functions validly
authorized (Pittman v.
Home Owners' Corp., supra, p. 33)--the
power to make all laws
necessary and proper for carrying into
execution the powers
vested in the Congress. U.S. Const., Art. I, Sec. 8, cl. 18.
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