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-

 

 

 

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                                 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-

 

 

 

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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:

 

 

 

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     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-

 

 

 

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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.

 

 

 

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     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"

 

 

 

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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

 

 

 

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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.

 

 

 

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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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