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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
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.
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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
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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
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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
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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
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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,
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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.
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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
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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.
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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.
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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
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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.
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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.
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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-
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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.
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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
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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
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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.
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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-
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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-
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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,
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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-
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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.
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,
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