CHAPTER IX
AREAS NOT UNDER LEGISLATIVE JURISDICTION


FEDERAL OPERATIONS FREE FROM INTERFERENCE: In general.--In

M'Culloch v. Maryland, 4 Wheat. 316 (1819), Chief Justice Marshall enunciated for the Supreme Court what has become a basic principle of the constitutional law of the United States (pp. 405-406):

If any one proposition could command the universal assent of mankind, we might expect it would be this--that the government of the Union, though limited in its powers, is supreme within necessarily form its nature. It is the government of all; its powers are delegated by all; it represents all, and acts for all. Though any one State may be willing to control its operations, no State is willing to allow others to control them. The nation, on those subjects on which it can act, must necessarily bind its component parts. But this question is not lift to mere reason: the people have, in express


                                 250
terms, decided it, by saying, "this constitution, and the laws of the United States, which shall be made in pursuance thereof," "shall be the supreme law of the land," and by requiring that the members of the State legislatures, and the officers of the executive and judicial departments of the States, shall take the oath of fidelity to it. The government of the United States, then, though limited in its powers, is supreme; and its laws, when made in pursuance of the constitution, form the supreme law of the land, "any thing in the constitution or laws of any State to the contrary notwithstanding." The "supremacy clause," from which Justice Marshall quoted and

on which the announced constitutional principle was based, applies not only to those powers which have been expressly delegated to the United States, but also to powers which may be implied therefrom. These implied powers were, in that same opinion, defined by Chief Justice Marshall as follows (p. 421):

We admit, as all must admit, that the powers of the government are limited, and that its limits are not to be transcended. But we think the sound construction of the constitution must allow to the national legislature that discretion, with respect to the means by which the powers it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it, in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the constitution,and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but constitutionth the letter and spirit of the constitution, are constitutional.



                                 251
This doctrine of implied powers was based on the "necessary and proper clause."
Real property.--The freedom of Federal operations from State

interference extends, by every rule of logic, to such operations involving use of Federal real property. So, in Fort Leavenworth R.R. v. Lowe, 114 U.S. 525 (1885), the Supreme Court said (p. 539):

Where, therefore, lands are acquired in any other way by the United States within the limits of a State than by purchase with her consent, they will hold the lands subject to this qualification: that if upon them forts, arsenals, or other public buildings are erected for the uses of the general government, such buildings, with their appurtenances, as instrumentalities for the execution of its powers, will be free from any such interference and jurisdiction of the State as would destroy or impair their effective use for the purposes designed. Such is the law with reference to all instrumentalities created by the general government. Their exemption from State control is essential to the independence and sovereign authority of the United States within the sphere of their delegated powers. But, when not used as such instrumentalities, the legislative power of the State over the places acquired will be as full and complete as over any other places within her limits.



                                 252
The case of Ohio v. Thomas, 173 U.S. 276 (1899), aptly

demonstrates the inconsequence, with respect to freedom of Federal functions from State interference, of the jurisdictional status of lands upon which such functions are being performed. In holding that a State could not enforce against Federal employees, charged with the responsibility of administering a soldiers' home, a State statute requiring the posting of notices wherever oleomargarine is served, the court said (p. 283):

Whatever jurisdiction the State may have over the place or ground where the institution is located, it can have none to interfere with the provision made by Congress for furnishing food to the inmates of the home, nor has it power to prohibit or regulate the furnishing of any article of food which is approved by the officers of the home, by the board of managers and by Congress. Under such circumstances the police power of the State has no application.

We mean by this statement to say that Federal officers who are discharging their duties in a State and who are engaged as this appellee was engaged in superintending the internal government and management of a Federal institution, under the lawful direction of its board of managers and with the approval of Congress, are not subject to the jurisdiction of the State in regard to those very matters of administration which are thus approved by Federal authority.

In asserting that this officer under such circumstances is exempt from the state law, the United States are not thereby claiming jurisdiction over this particular piece



                                 253
of land, in opposition to the language of the act of Congress ceding back the jurisdiction the United States received from the State. The government is but claiming that its own officers, when discharging duties under Federal authority pursuant to ad by virtue of valid Federal laws, are not subject to arrest or other liability under the laws of the State in which their duties are performed. In addition to these sources of constitutional power of the

Federal Government, which have consequent limitations on State authority, article IV, section 3, clause 2, of the Constitution, vests in Congress certain authority with respect to any federally owned lands which it alone may exercise without interference from any source. As was stated in Utah Power & Light Co. v. United States, 243 U.S. 389 (1917), (pp. 403-405):

The first position taken by the defendants is that their claims must be tested by the laws of the State in which the lands are situate rather than by the legislation of Congress, and in support of this position they say that lands of the United States within a State, when not used or needed for a fort or other governmental purposes of the United States, are subject to the jurisdiction, powers and laws of the State in the same way and



                                 254
to the same extent as are similar lands of others. To this we cannot assent. Not only does the Constitution (Art. IV, Sec. 3, cl. 2) commit to Congress the power "to dispose of the make all needful rules and regulations respecting" the lands of the United States, but the settled course of legislation, congressional and state, and repeated decisions of this court have gone upon the theory that the power of Congress is exclusive and that only through its exercise in some form can rights in lands belonging to the United States be acquired. True, for many purposes a State has civil and criminal jurisdiction over lands within its limits belonging to the United States, but this jurisdiction does not extend to any matter that is not consistent with full power in the United States to protect its lands, to control their use and to prescribe in what manner others may acquire rights in them. * * *




                                 255
From the earliest times Congress by its legislation, applicable alike in the States and Territories, has regulated in many particulars the use by others of the lands of the United States, has prohibited and made punishable various acts calculated to be injurious to them or to prevent their use in the way intended, and has provided for and controlled the acquisition of right of way over them for highways, railroads, canals, ditches, telegraph lines and the like. * * And so we are of opinion that the inclusion within a State of lands of the United States does not take from Congress the power to control their occupancy and use, to protect them from trespass and to prescribe the conditions upon which others may obtain rights in them, even though this may involve the exercise in some measure of what commonly is known as the police power. * * That the power of Congress in these matters transcends any State

laws is demonstrated by Hunt v. United States, 278 U.S. 96 (1928), wherein it was held that a State could not enforce its game laws against Federal employees who, upon



                                 256
direction of the Secretary of Agriculture, destroyed a number of wild deer in a national forest (which was not under the legislative jurisdiction of the United States), because the deer, by overbrowsing upon and killing young trees, hushes, and forage plants, were causing great damage to the land. The court said (p. 100):
* * * That this [destruction of deer] was necessary to protect the lands of the United States within the reserves from serious injury is made clear by the evidence. The direction given by the Secretary of Agriculture was within the authority conferred upon him by act of Congress. And the power of the United States to thus protect its lands and property does not admit of doubt, Camfield v. United States, 167 U.S. 518, 525-526; Utah Power & Light Co. v. United States, 243 U.S. 389, 404; McKelvey v. United States, 260 U.S. 353, 359; United States v. Alford, 274 U.S. 264, the game laws or any other statute of the state to the contrary notwithstanding. This power of Congress extends to preventing use of lands

adjoining Federal lands in a manner such as to interfere with use of the Federal lands. This particular issue came before the Supreme Court in Camfield v. United States, 167 U.S. 518 (1897), where the court considered the applicability of an act of Congress, which prohibited the fencing of public lands, to fencing of lands adjoining public lands in a manner as to make the latter property inaccessible. The court said (pp. 524-526):

While the lands in question are all within the State of Colorado, the Government has, with respect to its



                                 257
own lands, the rights of an ordinary proprietor, to maintain its possession and to prosecute trespassers. It may deal with such lands precisely as a private individual may deal with his farming property. It may sell or withhold them from sale. It may grant them in aid of railways or other public enterprises. It may open them to preemption or homestead settlement; but it would be recreant to its duties as trustee for the people of the United States to permit any individual or private corporation to monopolize them for private gain, and thereby practically drive intending settlers from the market. It needs no argument to show that the building of fences upon public lands with intent to enclose them for private use would be a mere trespass, and that such fences might be abated by the officers of the Government or by the ordinary processes of courts of justice. To this extent no legislation was necessary to vindicate the rights of the Government as a landed proprietor. But the evil of permitting persons, who owned or controlled the alternate sections, to enclose the entire tract, and thus to exclude or frighten off intending settlers, finally became so great that Congress passed the act of February 25, 1885, forbidding all enclosures of public lands, it was manifestly unnecessary, since the Government as an ordinary proprietor would have the right to prosecute for such a trespass. It is only by whatever means, that the act becomes of any avail. * * * The general Government doubtless has a power over its own property analogous to the power of the several States, and the extent to which it may go in the exercise of such power is measured by the exigencies of the particular



                                 258
case. If it be found to be necessary for the protection of the public, or of intending settlers, to forbid all enclosures of public lands, the Government may do so, thought the alternate sections of private lands are thereby rendered less available for pasturage. The inconvenience, or even damage, to the individual proprietor does not authorize an act which is in its nature a purpresture of government lands. While we do not undertake to say that Congress has the unlimited power to legislate against nuisances within a State, which it would have within a Territory, we do not think the admission of a Territory as a State deprives it of the power of legislating for the protection of the public lands, though it may thereby involve the exercise of what is ordinarily known as the police power, so long as such power is directed solely to its own protection. A different rule would place the public domain of the United States completely at the mercy of state legislation.

In McKelvey v. United States, 260 U.S. 353 (1922), the Supreme Court, in sustaining another provision of the same Federal statute, prohibiting restraints upon persons entering public lands, said (p. 359):

It is firmly settled that Congress may prescribe rules respecting the use of the public lands. It may sanction some uses and prohibit others, and may forbid interference with such as are sanctioned. Camfied v. United States, 167 U.S. 518, 525; United States v. Grimaud, 220 U.S. 506, 521; Light v. United States, 220 U.S. 523, 536; Utah Power & Light Co. v. United States, 243 U.S. 389, 404-405. The provision now before us is but an exertion of that power. It does no more than to sanction free passage over the public lands and to make the obstruction thereof by unlawful means a punishable offense.



                                 259
The opinions in M'Culloch v. Maryland, Fort Leavenworth R.R. v.

Lowe, Ohio v. Thomas, Hunt v. United States, Utah Power & Light Co. v. United States, Camfield v. United States, and McKelvey v. United States clearly demonstrate that the authority of the Federal Government over its lands within the State is not limited to that derived from legislative jurisdiction over such lads of the character which has been the subject of the preceding chapters; there have been delegated to the Federal Government by the Constitution vast powers which may be exercised with respect to such lands. These powers not only permit the Government to exercise affirmative authority upon and with respect to such lands, but they also serve to prevent--and to authorize Federal legislation to prevent--interference by the States and by private persons with the Federal Government's acquisition, ownership, use, and disposition of lands for Federal purposes and with Federal activities which may be conducted on such lands.

FREEDOM OF USE OF REAL PROPERTY ILLUSTRATED: Taxation.--The

freedom of the Federal Government's use of its real property from State interference, through the operation of constitutional provisions other than article I, section 8, clause 17, is illustrated by the freedom of such property from State, and State-authorized (local), taxation. Since the history of the development of such freedom from taxation reflects in considerable measure the development of freedom of Federal property, and Federal operations on such property, from State interference generally, such history is deserving of detailed consideration.

Prior to 1886, it was an open question whether federally owned

real estate was in all instances exempt from State taxation. Thus, in Commonwealth v. Young, 1 Journ. Juris. (Hall's,, Phila.) 47 (Pa., 1818), it was suggested that federally owned land over which legislative jurisdiction had not been acquired was subject to all State laws, including revenue laws. In United States v. Railroad Bridge Co., 27 Fed. Cas. 686, No. 16,114 (C.C.N.D. Ill., 1855), it was suggested by Justice



                                 260
McLean that the tax exemption of federally owned lands was dependent upon compacts between the United States and the State whereby the State has surrendered the right to tax; if not subject to such a compact, Justice McLean suggested, Federal lands could be subjected to State taxation. He added (p. 692):
* * * In many instances the stats have taxed the lands on which our custom houses and other public buildings have buildings have been constructed, and such taxes have been paid by the federal government. This applies only to the lands owned by the Government as a proprietor, the jurisdiction never having been ceded by the state. The proprietorship of land in a state by the general government, cannot, it would seem, enlarge its sovereignty of restrict the sovereignty or restrict the sovereignty of the state.

Somewhat similar views were implied in two early California cases (subsequently superseded by contrary views, as indicated infra), People v. Morrison, 22 Cal. 73 (1863); People v. Shearer, 30 Cal. 645 (1866). In United States v. Weise, 28 Fed. Cas. 518, No. 16,659 (C.C.E.D.Pa., 1851), the court said (p. 518) that the authority of the State to tax property of the Federal Government "has been the subject of much discussion of late. It has been twice argued before the supreme court of the United States, but remains undecided." The court did not rule on the issue in that case, but held that such a tax could not in any event be enforced by levy, seizure, and sale of property.

In its opinion, the court did not identify the cases in which

the tax issue had been twice argued before the supreme court of the United States", but left undecided. It presumably had reference, however, to the unreported cases of United States v. Portland (1849) and Roach v. Philadelphia County (1849). According to an account given of the latter case in 2 American Law Journal (N.S.) 444 (1849- 1850):



                                 261
* * * A writ of Error had been taken to the Supreme Court of Pennsylvania. By the decision of that Court the lot on which is erected the Mint of the United States was held liable to taxation for county purposes under State laws. The State of Pennsylvania had never relinquished her right of taxation, nor had she given her consent tot he purchase of the ground by the United States.--The Supreme Court of the United States affirmed the judgment of the State Court, thereby sustaining the right of the State to impose taxes upon the property, notwithstanding that it belonged to the United States.

According to a report of the same case, as recited by the Supreme Court in Van Brocklin v. Tennessee, 117 U.S. 151, 176 (1886), the treasurer of the mint had sought to recover State, county and city taxes which had been levied and paid both upon the building and land used by the mint of the United States, and the decision of the Pennsylvania Supreme Court upholding the validity of the taxes was sustained by an equal division of the United States Supreme Court. The decision of the Pennsylvania court, like that of the United States Supreme Court in this case, has not been found in any of the reports.

In the opinion in the Van Brocklin case, the Supreme Court gave

the following account (at p. 175) of the case of United States v. Portland:

The first of those cases was United States v. Portland, which, as agreed in the statement of facts upon which it was submitted to the decision of the Circuit Court



                                 262
of the United States for the District of Maine, was an action brought by the United States against the City of Portland to recover back the amount of taxes assessed for county and city purposes, in conformity with the statutes of Maine, upon the land, wharf and building owned by the United States in that city. The building had been erected by the United States in that purpose, and no other. The land, building and wharf were within the legislative jurisdiction of the State of Maine, and had always been so, not having been purchased by the United States with the consent of the legislature of the State. The case was heard in the Circuit Court at May term 1845, and was brought to this court upon a certificate of division of opinion between Mr. Justice Story and Judge Ware on several questions of law, the principal one of which was, whether the building, land and wharf, so owned and occupied by the United States, were legally liable to taxation; and this court, being equally divided in opinion on those questions, remanded the case to the Circuit Court for further proceedings. The action therefore failed. The legislature of Maine having meanwhile, by the statute of 1846, ch. 159, Sec. 5, provided that the property of the United States should be exempted from taxation, the question has never been renewed.



                                 263

                       THIS PAGE IS MISSING



                                 264

                       THIS PAGE IS MISSING



                                 265

Such acquisition may be with or without the consent of the State in which the property is situated. Moreover, the Supreme Court emphasized, the laws of the Untied States are supreme, and the States have no power, by taxation or otherwise, to retard, impede, burden or in any manner control the operation of the constitutional laws enacted by Congress to carry into execution the powers of the Federal Government.

Taxation, the court stated, relying on M'Culloch v. Maryland, 4

Wheat. 316 (1819), is such ann interference. Moreover, the court made clear, a distinction cannot be made on the basis of the uses to which the real property of the Federal Government may be devoted (pp. 158-159):

The United States do not and cannot hold property, as a monarch may, for private or personal purposes. All the property and revenues of the United States must be held and applied, as all taxes, duties, imposts and excises must be laid and collected, "to pay the debts and provide for the common defence and general welfare of the United States." ***

After referring to the Articles of Confederation of 1778, in

which it was expressly provided that "no imposition, duties or restriction shall be laid by any State on the property of the United States," and to the fact that a similar provision was also contained in the Northwest Ordinance of 1787, the court said (pp. 159-160):

The Constitution creating a more perfect union, and increasing the powers of the national government, expressly authorized the Congress of the United States "to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defence and general welfare of the United States;" "to exercise exclusive legislation over all places purchased by the consent of the legislature of the State in which the same shall be, for the erection of forts, magazines, arsenals, dock- yards, and other needful buildings;" and "to dis-



                                 266
pose of and make all needful rules and regulations respecting the territory or other property of the United States"; and declared, "This Constitution and the laws of the United States which shall be made in pursuance thereof shall be the supreme law of the land; and the judges in every State shall be bound thereby, anything in the constitution or laws of any State to the contrary notwithstanding." No further provision was necessary to secure the lands or other property of the United States from taxation by the States.

The court concluded its opinion as follows (pp. 179-180):

* * * To allow land, lawfully held by the United States as security for the payment of taxes assessed by and due to them, to be assessed and sold for State taxes, would tend to create a conflict between the officers of the two governments, to deprive the United States of a title lawfully acquired under express acts of Congress, and to defeat the exercise of the constitutional power to lay and collect taxes, to pay the debts and provide for the common defence and general welfare of the United States.

While citing article IV, section 3, clause 2, as one of the

bases for its conclusion, the Supreme Court in the Van Brocklin opinion did not rely solely on that provision, nor did it spell out its reasons for concluding that this clause prevented State and local taxation of real estate of the United States. Four years later, the Supreme Court had occasion to give more detailed consideration to this question in Wisconsin Central R.R. v. Price County, 133 U.S. 496 (1890). In that case the court said (p. 504):

It is familiar law that a State has no power to tax the property of the United States within its limits. This exemption of their property from state taxation--and by state taxation we mean any taxation by authority of the State, whether it be strictly for state purposes



                                 267
or for mere local and special objects--is founded upon that principle which inheres in every independent government, that it must be free from any such interference of another government as may tend to destroy its powers or impair their efficiency. If the property of the United States could be subjected to taxation by the State, the object and extent of the taxation would be subject to the State's discretion. It might extend to buildings and other property essential to the discharge of the ordinary business of the national government, and in the enforcement of the tax those buildings might be taken from the possession and use of the United States. The Constitution vests in Congress the power to "dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States." And this implies an exclusion of all other authority over the property which could interfere with his right or obstruct its exercise. * * * [Emphasis added.] The opinions of the Supreme Court in the Van Brocklin and

Wisconsin Central R.R. cases establish an inflexible rule, with no exceptions, that property of the Federal Government may not, absent the express consent of the Government, be taxes by a State or subdivision thereof. All such property is held in a governmental capacity, and its taxation by a State or local subdivision, the Supreme Court has stated, would constitute an unconstitutional interference with Federal functions; in addition, since taxation carries with it the right to levy execution on the property in order to enforce payment of the tax on it, the taxation of such property by a State is prohibited by article IV, section 3, clause 2, of the Constitution, which vests solely in the Congress the authority to dispose of property of the United States.



                                 268
State activities are exempt from Federal taxation only to the

extent that they represent an exercise of governmental powers rather than engaging in business of a private nature. Ohio v. Helvering, 292 U.S. 360, 368 (1934); South Carolina v. United States, 199 U.S. 437, 458 (1905). Ohio taxing authorities thought that this rule applied conversely to allow them to tax a Federal housing project and the Ohio Supreme Court denied tax exemption. The United States Supreme Court rejected this contention in two curt sentences in Cleveland v. United States, 323 U.S. 329, 333 (1945), as follows: "And Congress may exempt property owned by the United States or its instrumentality form state taxation in furtherance of the purposes of the federal legislation. This is settled by such an array of authority that citation would seem unnecessary." Thereafter the Ohio Supreme Court rejected another attempt of the taxing authorities to apply the governmental versus proprietary function distinction to the United States, holding that so long as the land is owned by the United States it is tax exempt. United States (Form Credit administration) v. Board of Tax Appeals, et al., 145 Ohio St. 257, 61 N.E. 2d 481 (1945). However, Federal ownership does not prohibit taxation of private interests in the same parcel of real property. S.R.A., Inc. v. Minnesota, 327 U.S. 558 (1946).

While federally owned property is constitutionally exempt from

State and local taxation, the Congress may, of course, waive such exemption. Both at the present time and in years past Congress has authorized the payment of State and local taxes on certain federally owned real property. Thus, at the present time, approximately three million dollars per year are paid pursuant to such authorizations in addition to the so-called payments in lieu of taxes, which aggregate approximately 14 million dollars more. Such authorizations by the



                                 269
Congress are not, of course, a recent innovation. Thus, specific appropriation of funds for payment of the tax on the mint of the United States in Philadelphia, involved in Roach v. Philadelphia County, supra, was made by the Congress. And in 4 Stat. 673, 675 (act of May 14, 1834), is to be found another appropriation made expressly for the purpose of paying just such taxes.
Special assessments.--Federally owned property is

constitutionally exempt not only from a State's and local subdivision's general real property taxes, but it is also immune from special assessments which are levied against property owners for improvements. See Wisconsin Central R.R. v. United States, 290 U.S. 89 (1933); United States v. Anderson Cottonwood Irr. Dist., 19 F.Supp. 740 (N.D.Cal., 1937). Such immu-



                                 270
nity extends not only to the Federal Government but also to its successors in interest, insofar as the special assessments relate to any improvements which were made while the Federal Government owned the property. This latter issue was so decided in Lee v. Osceola & Little River Road Improvement District, 268 U.S. 643 (1925), and in the course of its opinion the Supreme Court said (p. 645):
It was settled many years ago that the property of the United States is exempt by the Constitution from taxation under the authority of a State so long as title remains in the United States. Van Brocklin v. State of Tennessee, 117 U.S. 151, 180. This is conceded. It is urged, however, that this rule has no application after the title has passed from the United States, and that it may then be taxed for any legitimate purposes. While this is true in reference to general taxes assessed after the United States has parted with its title, we think it clear that it is not the case where the tax is sought to be imposed for benefits accruing tot he property from improvements made while it was still owned by the United States. In the Van Brocklin Case, supra, p. 168, it was said that the United States has the exclusive right to control and dispose of its public lands, and that "no State can interfere with this right, or embarrass its exercise." Obviously, however, the United States will be hindered in the disposal of lands upon which local improvements have been made, if taxes may thereafter be assessed against the purchasers for the benefits resulting from such improvements. Such a liability for the future assessments of taxes would create a serous incumbrance upon the lands, and its subsequent



                                 271
enforcement would accomplish indirectly the collection of a tax against the United States which could not be directly imposed. * * * Condemnation of Federal land.--Closely related to the subject of

State taxation of Federal land is that of State condemnation of such land. Prior to the decision of the Supreme Court in Van Brocklin v. Tennessee, 117 U.S. 151 (1886), in which was established the proposition that the Federal Government does no, and cannot, hold property in a proprietary capacity, it was held in a number of cases that the State's power of eminent domain extended to land of the Federal Government not used or needed for a governmental purpose.

The decision in the Van Brocklin case, in its holding that the

Federal Government owns all of its property in a governmental capacity, rendered untenable the underlying principles upon which these cases sustaining the State's power of eminent domain rested, and in Utah Power & Light Co. v. United States, 243 U.S. 389 (1917), the United States Supreme Court disposed of the issue squarely by stating (pp. 403-404):

The fact position taken by the defendants is that their claims must be tested by the laws of the State in which the lands are situate rather than by the legislation of Congress, and in support of this position they say that the lands of the United States within a State, when not used or needed for a fort or other governmental purpose of the United States are subject to the jurisdiction, powers and laws of the State in the same way and to the same extent as are similar lands of others.



                                 272
To this we cannot assent. Not only does the Constitution (Art. IV, Sec. 3, cl. 2) commit to Congress the power "to dispose of and make all needful rules and regulations respecting" the lands of the United States, but the settled course of legislation, congressional and state, and repeated decisions of this court have gone upon the theory that the power of Congress is exclusive and that only through its exercise in some form can rights in lands belonging to the United States be acquired. * * *

And, as to the issue of the State's exercise of its power of eminent domain with respect to federally owned land, the court concluded (p. 405):

It results that laws, including those relating to the exercise of the power of eminent domain, have no bearing upon a controversy such as is here presented [viz., the right to use and occupy federally owned land], same as they may have been adopted or made applicable by Congress.

The same result would because of the Federal Government's

sovereign immunity from suit. A proceeding to condemn land, in which the United States has an interest, is a suit against the United Stats which may be brought only by the consent of Congress. Minnesota v. United States, 305 U.S. 382, 386-387 (1939).

FEDERAL ACQUISITION AND DISPOSITION OF REAL PROPERTY:

Acquisition.--While the acquiescence of a State is essential to acquisition by the Federal Government of legislative jurisdiction over an area within such State, it is not essential to the acquisition by the Federal Government of real property within the States. The Federal Government may obtain such



                                 273
real property by gift, purchase, or condemnation. See Fort Leavenworth R.R. v. Lowe, 114 U.S. 525 (1885); Kohl v. United States, 91 U.S. 367 (1876). It may also obtain property of the State by exercise of its power of eminent domain, even though such property is used by the State for governmental purposes. United States v. Wayne County, 53 C.Cls. 417 (1918), aff'd., 252 U.S. 574 (1920); United States v. Carmack, 329 U.S. 230 (1946); Oklahoma v. Atkinson Co., 313 U.S. 508 (1941); United States v. Montana, 134 F.2d 194 (C.A. 9, 1943) and see also United States v. Clarksville, 224 F.2d 712 (C.A. 4, 1955).
Disposition.--By reason of article IV, section 3, clause 2, of

the Constitution, Congress alone has the ultimate authority to determine under what terms and conditions property of the Federal Government may or shall be sold. In Gibson v. Chouteau, 13 Wall. 92 (1872), which involved a complex issue of a claim of title under State law as against title claimed through a patent from the Federal Government, the Supreme Court said (pp. 99-100):

With respect to the public domain, the Constitution vests in Congress the power of disposition and of making all needful rules and regulations. That power is subject to no limitations. Congress has the absolute right to prescribe the times, the conditions, and the mode of transferring this property, or any part of it, and to designate the persons to whom the transfer shall be made. No State legislation can interfere with this right or embarrass its exercise; and to prevent the possibility of any attempted interference with it, a provision has been usually inserted in the compacts by which new States have been admitted into the Union, that such interference with the primary disposal of the soil of the United States shall never be made. Such provision was inserted in the act admitting Missouri,



                                 274
and it is embodied in the present Constitution, with the further clause that the legislature shall also not interfere "with any regulation that Congress may find necessary for securing the title in such soil to the bona fide purchasers." The same principle which forbids and State legislation interfering with power of Congress to dispose of the public property of the United States, also forbids any legislation depriving the grantees of the United States of the possession and enjoyment of the property granted by reason of any delay in the transfer of the title after the initiation of proceedings for its acquisition. The consummation of the title is not a matter which the grantees can control, but one which rests entirely with the government. With the legal title, when transferred, goes the right to possess and enjoy the land, and it would amount to a denial of the power of disposal in Congress if these benefits, which should follow upon the acquisition of that title, could be forfeited because they were not asserted before that title was issued. Similarly, in Bagnell v. Broderick, 13 Pet. 426 (1839_), it was

held that the Congress has "the sole power to declare the dignity and effect of titles emanating from the United States" (p. 450), and in Wilcox v. Jackson, 13 Pet. 498 (1839), it was held that the question of whether title to land which once was the property of the Federal Government had passed to its assignee is to be resolved by the laws of the United States. In Irvine v. Marshall, et al., 20 How. 558 (1858), it was said (p. 563):

* * The fallacy of the conclusion attempted * *, consists in the supposition, that the control of the United States over property admitted to be their own, is dependent upon locality, as to the point within the limits of a State or Territory within which that prop-



                                 275
erty may be situated. But as the control, enjoyment, or disposal of that property, must be exclusively in the United States, anywhere and everywhere within their own limits, and within the powers delegated by the Constitution, no State, and much less can a Territory, (yet remaining under the authority of the Federal Government,) interfere with the regular, the just, and necessary power of the latter. * * * In the exercise of its powers of disposition, Congress may

authorize the leasing of real property, as well as its sale. United States v. Gratiot, 14 Pet. 526 (1840). In disposing of property, Congress may also provide that it shall not become liable for the satisfaction of debts contracted prior to the issuance of a land patent. Ruddy v. Rossi, 248 U.S. 104 (1918). Congress may also provide that it shall not become liable for the satisfaction of debts contracted prior to the issuance of a land patent. Ruddy v. Rossi, 248 U.S. 104 (1918). Congress may also restrict the disposition of personal property developed by a grantee on property acquired from the United States. United States v. San Francisco, 310 U.S. 16 (1940). Under its general powers of disposition, Congress may condition the use of real property of the United States by requiring the user to transmit over its lines electric power owned by the Federal Government. Federal Power Commission v. Idaho Power Co., 344 U.S. 17 (1952).

In Federal Power Commission v. Oregon, 349 U.S. 435 (1955),

which basically involved interpretation of Federal statutes, it was held that a State is without authority to require a person to obtain from the State permission to construct a privately owned dam on property of the United States where such construction was instituted with the permission of the United States; the granting of such permission by the United States is an exercise of the power of disposition with which a State may not interfere. The court said (pp. 441-443):

On its face, the Federal Power Act applies to this license as specifically as it did to the license in the First Iowa case [First Iowa Coop. v. Federal Power Commission, 328 U.S. 152]. There the jurisdiction of the Commission turned almost entirely upon the naviga-



                                 276
bility of the waters of the United States to which the license applied. Here the jurisdiction turns upon the ownership or control by the United States of the reserved lands on which the licensed project is to be located. The authority to issue licenses in relation to navigable waters of the United States springs from the Commerce Clause of the Constitution. The authority to do so in relation to public lands and reservations of the United States springs from the Property Clause--"The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States * * *." Art. IV, Sec. 3. It is clear that Congress, in the exercise of its power of

disposition, may authorize actions serving to improve the marketability of the property. Thus, it may provide for the reclamation of arid lands owned by the Federal Government. United States v. Hanson, 167 Fed. 881 (C.A. 9, 1909); Kansas v. Colorado, 206 U.S. 46, 91, 92 (1907). It may also authorize the purchase of privately owned transmission lines to facilitate the sale of excess electrical energy produced by federally owned facilities. In Ashwander v. Tennessee Valley Authority, 297 U.S. 288 (1936), the court stated (p. 338):

* * * The constitutional provision is silent as to the method of disposing of property belonging to the United States. That method, of course, must be an appropriate means of disposition according to the nature of the property, it must be one adopted in the public interest as distinguished from private or personal ends, and we may assume that it must be consistent with the foundation principles of our dual system of government and must not be contrived to govern the concerns reserved to the States. * * *



                                 277
PROTECTION OF PROPERTY AND OPERATIONS OF THE GOVERNMENT:

Property.--It is not essential that the Federal Government have legislative jurisdiction over real property owned by it in order to provide for its protection against trespass, unauthorized use, or destruction, notwithstanding that State laws may continue effective. Legislation having these objectives has in a number of cases been sustained on the basis of the power delegated to Congress by article IV, section 3, clause 2, of the Constitution. While this clause, it is clear from Pollard v. Hagan, 3 How. 212, 223 (1845), does not grant to Congress "municipal sovereignty" over any area within a State, it constitutes a "grant of power to the United States of control over its property." Kansas v. Colorado, 206 U.S. 46, 89 (1907).

On the basis of the power vested in Congress by article IV,

section 3, clause 2, of the Constitution, the United States was granted an injunction to restrain grazing of cattle on public lands without a permit. Light v. United States, 220 U.S. 523 (1911). In the course of its opinion, the court said (pp. 536-538):

The United States can prohibit absolutely or fix the terms on which its property may be used. As it can withhold or reserve the land it can do so indefinitely, Stearns v. Minnesota, 179 U.S. 243. It is true that the "United States do not and cannot hold property as a monarch may for private or personal purposes." Van Brocklin v. Tennessee, 117 U.S. 158. But that does not lead to the conclusion that it is without the rights incident to ownership, for the Constitution declares, Sec. 3, Art. IV, that "Congress shall have power to dis-



                                 278
pose of and make all needful rules and regulations respecting the territory or the property belonging to the United States." "The full scope of this paragraph has never been definitely settled. Primarily, at least, it is a grant of power to the United States of control over its property." Kansas v. Colorado, 206 U.S. 89. "All the public lands of the nation are held in trust for the people of the whole country." United States v. Trinidad Coal Co., 137 U.S. 160. And it is not for the courts to say how that trust shall be administered. That is for Congress to determine. The courts cannot compel it to set aside the lands for settlement; or to suffer them to be used for agricultural or grazing purposes; nor interfere when, in the exercise of its discretion, Congress establishes a forest reserve for what it decides to be national and public purposes. In the same way and in the exercise of the same trust it may disestablish a reserve, and devote the property to some other national and public purpose. These are rights incident to proprietorship, to say nothing of the power of the United States as a sovereign over the property belonging to it. * * * * * * He [i.e., the defendant] could have obtained a permit for reasonable pasturage. He not only declined to apply for such license, but there is evidence that he threatened to resist efforts to have his cattle removed from the Reserve, and in his answer he declares that he will continue to turn out his cattle, and contends that if they go upon the Reserve the Government has no remedy at law or equity. This claim answers itself. Similarly, in Utah Power & Light Co. v. United States, 243 U.S.

389 (1917), it was held that the United States could enjoin the occupancy and use, without its permission, of cer-



                                 279
tain of its lands forest reservations as sites for works employed in generating and distributing electric power, and to obtain compensation for such occupancy and use in the past. In United States v. Gear, 3 How. 120 (1845), it was held that the United States was entitled to an injunction to prevent unauthorized mining of lead on federally owned land. The Federal Government may also prevent the extraction of oil from public lands. See United States v. Midwest Oil Co., 236 U.S. 459 (1915). In Cotton v. United States, 11 How. 229 (1850), it was held that the United States may bring a civil action of trespass for the cutting and carrying away of timber from lands owned by the United States. The United States, as the absolute owner of the Arkansas Hot Springs, has the same power a private owner would have to exclude the public from the use of the waters. Van Lear v. Eisele, 126 Fed. 823 (C.C.E.D.Ark., 1903). Indeed, the United States has prevailed in perhaps every type of action, including special remedies variously provided by State statutes to protect and conserve its lands, and resources and other matters located thereon.
The Federal Government has undisputed authority to provide, and

has provided, criminal sanctions for various acts injurious, or having a reasonable potential of being injurious, to real property of the United States. Congress may provide for the punishment of theft of timber from lands of the United States. See United States v. Briggs, 9 How. 351 (1850); see also United States v. Ames, 24 Fed. Cas. 784, No. 14,441 (C.C.D. Mass., 1845). Federal criminal sanctions may be applied to any person who leaves a fire, without first extinguishing it, on private lands "near" inflammable grass on the



                                 280
public domain. United States v. Alford, 274 U.S. 264 (1927).
Operations.--The Federal Government has undisputed authority to

protect the proper carrying out of the functions assigned to it by the Constitution, without regard to whether the functions are carried out on land owned by the United States or by others, and without regard to the jurisdictional status of the land upon which the functions are carried out. Where such functions involve Federal use of property the Congress may, regardless of the jurisdictional status of such property, make such laws with respect to the property as may be required for effective carrying out of the functions. So, the Congress has enacted statutes prohibiting, under criminal penalties, certain dissemination of information pertaining to defense installations, (*see footnote NO. 33).

Moreover, the United States, in carrying out Federal functions,

whether military or civilian, may take such measures with respect to safeguarding of Federal areas (building of fences, posting of sentries or armed guards, limiting of ingress and egress, evicting of trespassers, etc.), regardless of the



                                 281
jurisdiction status of such areas, as may be necessary for the proper carrying out of the functions.
AGENCY RULES AND REGULATIONS: Beyond the acts and omissions

defined as criminal by statutes, certain agencies of the Federal Government have received from the Congress authority to establish rules and regulations for the government of the land areas under their management, and penalties are provided by statute for the breach of such rules and regulations; statutory authority also exists for these agencies to confer on certain of their personnel arrest powers in excess of those ordinarily had by private citizens. However, most Federal agencies do not now have such authority. In the absence of specific authority to make rules and regulations, criminal sanctions may not attach (regardless of the jurisdictional status of the lands involved) to violations of any such rules



                                 282
or regulations issued by the officer in charge of a area, except that members of the armed forces are subject always to the Uniform Code of Military Justice. It should be noted that civilian Federal employees in various circumstances are subject to disciplinary action and that members of the public at large may be excluded from the Federal area.
The validity of rules and regulations issued by the Secretary of

Agriculture was challenged in United States v. Grimaud, 220 U.S. 506 (1911), by persons charged with driving and grazing sheep on a forest reserve without a permit. In deciding that the authority to make administrative rules was not an unconstitutional delegation of legislative power by Congress, and that the regulations of the Secretary were valid and had the force of law, the court said (p. 521):

That "Congress cannot delegate legislative power to the President is a principle universally recognized as vital to the integrity and maintenance of the system of government ordained by the Constitution." Field v. Clark, 143 U.S. 649, 692. But the authority to make administrative rules is not a delegation of legislative power, nor are such rules raised from an administrative to a legislative character because the violation thereof is punished as a public offense.

It is true that there is no act of Congress which, in express terms, declares that it shall be unlawful to graze sheep on a forest reserve. But the statutes, from which we have quoted, declare, that the privilege of using reserves for "all proper and lawful purposes" is subject to the proviso that the person so suing them shall comply "with the rules and regulations covering such forest reservation." The same act makes it an offense to violate those regulations, that is, to use them otherwise than in accordance with the rules established by the



                                 283
Secretary. Thus the implied license under which the United States had suffered its public domain to be used as a pasture for sheep and cattle, mentioned in Buford v. Houtz, 133 U.S. 326, was curtailed and qualified by Congress, to the extent that such privilege should not be exercised in contravention of the rules and regulations. Wilcox v. Jackson, 13 Pet. 498, 513. If, after the passage of the act and the promulgation of the rule, the defendants drove and grazed their sheep upon the reserve, in violation of the regulations, they were making an unlawful use of the Government's property. In doing so they thereby made themselves liable to the penalty imposed by Congress.



                                 284
And it been held that rules and regulations issued pursuant to congressional authority supersede conflicting State law.
CONTROL OVER FEDERAL CONSTRUCTION: Building codes and zoning.--

In United States v. City of Chester, 144 F.2d 415 (C.A. 3, 1944), in which the city had attempted to require the United States Housing Authority to comply with local building regulations in the construction of war housing in an area not under Federal legislative jurisdiction, it was held (pp. 419-420):

The authority of the Administrator to proceed with the building of the Chester project under the Lanham Act without regard to the application of the Building



                                 285
Code Ordinance of Chester is to be found in the words of Clause 2 of Article VI of the Constitution of the United States which provides that the Constitution and the laws of the United States made in pursuance thereof shall be the supreme law of the land. The questions raised by the defendants were settled in general principle as long ago as the decision of Mr. Chief Justice Marshall in M'Culloch v. Maryland, 4 Wheat. 316, 405, 4 L.Ed. 579, wherein it was stated, "If any one proposition could command the universal assent of mankind, we might expect it would be this--that the government of the Union, though limited in its powers, is supreme within its sphere of action. * * *."

The court added (p. 420):

A state statute, a local enactment or regulation or a city ordinance, even if based on the valid police powers of a State, must yield in case of direct conflict with the exercise by the Government of the United States of any power it possesses under the Constitution. * * *

This decision was cited with approval and followed in Curtis v.

Toledo Metropolitan Housing Authority, et al., Ohio Ops. 423, 78 N.E.2d 676 (1947); Tim v. City of Long Branch, 135 N.J.L. 549, 53 A.2d 164 (1947); and in United States v. Philadelphia, 56 F.Supp. 862 (E.D.Pa., 1944), aff'd., 147 F.2d 291 (C.A. 3, 1945), cert. den., 325 U.S. 870. The only decision to the contrary was rendered in Public Housing Administration v. Bristol Township, 146 F.Supp. 859 (E.D. Pa., 1956). Except for the last-cited decision, in which a motion to vacate is now reported to have been granted, the results reached in these cases are substantially the same as that reached in Oklahoma City v. Sanders, 94 F.2d 323 (C.A. 10, 1938), in which it was concluded that local requirements could not be enforced against a contractor constructing buildings in an area of partial jurisdiction.



                                 286
The Congress, by section 1 (b) of the Lanham act (42 U.S.C. 1521

(b)), had expressly authorized construction of



                                 287
the housing involved in the City of Chester case without regard to State or municipal ordinances, rules or regulations relating to plans and specifications or forms of contract. However, as the trial court indicated in the Philadelphia case (56 F.Supp. 864), such a provision was unnecessary.
The case of Tim v. City of Long Branch, supra, is the only

instance which has been noted of attempted imposition, though judicial action, of zoning limitations of State or local governments on use of real property owned by the Federal Government. Other such problems have arisen, nevertheless. In a case where the Federal Government was merely a lessee of privately owned property, however, it was held that the denial by a city zoning board of an application made by the lessor for the use of a lot as a substation post office was not unconstitutional as an unlawful regulation of property of the Federal Government. Mayor and City Council of Baltimore v. Linthicum, 170 Md. 245,183 Atl. 531 (1936). The matter had been considered previously by a lower tribunal,



                                 288
and the court invoked the rule of res adjudicata as to all contentions made by the property owner, including constitutional arguments. As to the contention that the application of the zoning ordinance would be an unlawful regulation of property of the United States and an unlawful interference with the mails, the court noted (183 At. 533):
* * * it may be observed that the property is not owned by the United States; there is only a lease limited to ten years' duration, or the duration of appropriations for rentals, and the lessee has only such property rights as may be derived from the owner. * * * Any interference of the local police regulations with the mails would be, at most, an indirect one, and to pass on the objection on that ground we should have to consider the rule and the decisions on local regulations interfering only incidentally with federal powers. Convington & C.Bridge Co. v. Kentucky 154 U.S. 204, 14 S.Ct. 1087, 38 L.E.d. 962; 2 Willoughby, United States Constitutional Law, Secs. 598, 601, 602, and 605. We do not pass on it because it is foreclosed as stated. Contractor licensing.--The United States Supreme Court has held

that a State may not require that a contractor with the Federal Government secure a license from the State as a condition precedent to the of his contract. Leslie Miller, Inc. v. Arkansas, 352 U.S. 187 (1956). After citing a Federal statute requiring bids to be awarded to a responsible bidder whose bid was most advantageous to the Federal Government, and after noting that the Armed Services Procurement Regulations listed criteria for determining responsibility and that these criteria were similar to those contained in the



                                 289
Arkansas law as qualifying requirements for a license to operate as a contractor, the court said (pp. 189-190):
Mere enumeration of the similar grounds for licensing under the state statute and for finding "responsibility" under the federal statute and regulations is sufficient to indicate conflict between this license requirement which Arkansas places on a federal contractor and the action which Congress and the Department of Defense have taken to insure the reliability of person and compaction with the Federal Government. Subjecting a federal contractor to the Arkansas contractor license requirements would give the State's licensing board a virtual power of review over the federal determination of "responsibility" and would thus frustrate the expressed federal policy of selecting the lowest responsible bidder. * * * While it appears to be the weight of authority that neither a

State nor a local subdivision may impose its building codes or license requirements on contractors engaged in Federal construction, it does not follow that the contractor may ignore all State law. For example, the State's laws concerning negligence would continue to be applicable, and such negligence might be predicated upon the contractor's noncompliance with a State statute relating to safety requirements. Thus, in Stewart & Co. v. Sadrakula, 309 U.S. 94 (1940), it was held that, under the international law rule, such a State statute governed the rights of the parties to a negligence action. While this case involved an area of exclusive Federal legislative jurisdiction, that fact is not controlling on the issue concerned. Obviously the statute also would have been held applicable in the absence of legislative jurisdiction in the Federal Government.



                                 290
The Supreme Court held that the application of such safety requirements would not interfere with the construction of the building. In answer to the argument that compliance with such requirements might increase the cost of the building, the court said (p. 104), that such contention "ignores the power of Congress to protect the performance of the functions of the National Government and to prevent interference therewith through any attempted state action."
In Penn Dairies, Inc., et al. v. Milk Control Commission of

Pennsylvania, 318 U.S. 261 (1943), the Supreme Court said of a price regulation held applicable to a Federal contractor which would incidentally affect the Government (p. 269):

* * * We may assume that Congress, in aid of its granted power to raise and support armies, Article I, Sec. 8, c. 12, and with the support of the supremacy clause, article VI, Sec. 2, could declare state regulations like the present inapplicable to sales to the government. * * *

In the same opinion, the court said also (p. 271):

Since the Constitution has left Congress free to set aside local taxation and regulation of government contractors which burden the national government, we see no basis for implying from the Constitution alone a restriction upon such regulations which Congress has not seen fit to impose, unless the regulations are shown to be inconsistent with Congressional policy. * * *

The views expressed by the Supreme court in this case concerning

the power of Congress to create such immunity in Federal contractors were subsequently applied in Carson v. Roane-Anderson Company, 342 U.S. 232 (1952), in which it was held that Congress had immunized contractors of the Atomic Energy Commission from certain State taxes, and also



                                 291
in Leslie Miller, lnc. v. Arkansas, 352 U.S. 187 (1956), in which the Supreme Court concluded that the State's regulations relating to the licensing of contractors were in conflict with the regulations established by the Department of Defense and therefore were inapplicable to a contractor with that Department.
Share
Popular Pages