The opinion
Gera1d.C. Mann AUSTXN aa. -l-m This opinion overrules in
part Opinion No.+3318
Hon. Coke Stevenson opinion NO. o-4438
Governor of ,Texas Be: The power of the State to pro-
Austin, Texas hiblt or regulate the sale of 3.2..
beer by au Army Post Exchange, lo-
cated within a “dry” area, jurisdic-
.tion over such military area not
having ,been’made by the State to the
Federal Government and where the
sale of such beer has been author-
Szed by the proper military authorl-
Dear Sir: ties.
We have received and considered your request to us
for au opinion. We quote froti your request:
“Major General Richard Donovan, Commander of the
Eighth Corps Area, United States Army, with headquarters
at Fort Sam Houston, has.informed me that the military
authorities at Camp Bowle have desired to authorize the
sale of jo2 beer by the army post exchanges at that sta-
tion. General Donovan recognizes that this contemplated
action involves a legal question. His opinion is that
the army post exchanges at Camp Bowie are government
instrumentalities; that the Legislature of Texas has
previously recognized them as such for the purpose of
affording them exemption from the cigarette t~axj that,
while the sale of, or dealllig in intoxlcatlpg liquors
at auy post exchange or canteen 1s still prohibited by
Federal statute, Congress, however, has declared that
3.2 beer is non-intoxicating, and the War Department has
accordingly authorized its sale by army post exchanges.
“The questions at issue appear to be clearly stated
in the letter which General Donovan has addressed to me
on this subject. I am attaching hereto a copy of his
letter.
“I am submitting the entire matter to you for your
careful consideration, .aud~respectfully request your ad-
vice and guidance on questions involved.”
In addition to the facts given in your request, we de-
sire to quote pertinent parts of the letter from Major General
Richard Donovan addressed to you and enclosed with your request:
Han, Coke Stevenson, page 2
“For a long time the military authorities at
Camp Bowie, have desired to authorize the sale of 3.2
beer by the Army Post Exchanges at that station.
They are convinced that the supervised controlled
sale of beer within the camp is directly related to
the maintenance of morale and the general welfare of
the command. It is also believed that by providing
places where the soldiers may lawfully procure and
drink 3.2 beer within the camp and under the control
of military authorities the temptation to obtain it
and intoxicating liquors against the laws of the local
community would be materially decreased. More men
would remain in camp. The suggested arrangement would
therefore be of material assistance and benefit, not-
only to the military authorities but also to the state,
county and city officials charged with the responslbil-
ity for the enforcement of the local prohibition laws.
After careful consideration of the matter I now desire
to authorize the sale of 3.2 beer at the post exchanges
at Camp Bowie and, whenever the situation seems to
justify it, at other camps, posts or stations located
in drylocalities in Texas.
“For your information I Inclose herewith copy of
au opinion by The Judge Advocate-General of the Army,
which I understand has been approved by the Secretary
of War, relative to a.similar situation In Louisiana.
***
n*+*
IYIn view of the foregoing I think it clear that the
views expressed in the inclosed opinion of The Judge Ad-
vocate General and followed by the Governor of Louisiana
apply, with the result that there should now be no serious
question about my authority to authorize the sale of beer
at Camp Bowie. I am, however, unwilling to do so at the
risk of disturbing the pleasant and entirely satisfactory
relations now existing between the military and civil au-
thorities in this state. Neither would I unnecessarily
offend the sensibilities of a local community.
“Under these circumstances I am following the proced-
ure which was successfully pursued in the State of Louisi-
ana under a similar situation. I submit to you my views
on the subject, supported by the inclosed opinion of The
Judge Advocate General of the Army, in the hope that you
may be able to advise me that you concur in the position
Hon. Coke Stevenson, Page 3
that the military’ authorities have the paramount right
to. control and supervise their post exchanges wherever
‘located, and that if it is deemed necessary or advisa-
ble for the morale and general welfare of the troops to
authorize the sale of 3.2 beer by such exchanges, they
may do so~without~incurring the risk of criminal prose-
cution by theme state authorities. After procuring your
concurrence in the,matter I propose to consult the lo-
cal authorities at Brownwood and then, after assuring
myself that there is no appreciable reasonable opposi-
tion.by the city.and county officials there, I propose,
with the approval of the War Department, to authorize
the sale of 3.2 beer at Camp Bowie.
“I anticipate no difficulty with reference to the
payment of the state tax prior to delivery of the beer
at the exchanges. The post exchanges however, are not
required to obtain and pay for state i icenses. The
beer will be sold under proper con trol and supervision
and careful precautions taken to prevent its being
taken from. the camp.
“The sale of. or dealing in ~intoticatiug liquors at
any pbst exchange or canteen is still prohibited by
Federal Statute. Congress,. however, ,has declared that
3.2 beer is non-intoxicating and the War Department has
accordinglyauthorized its sale by Army post exchanges.”
This department has previously held in Opinion No. O-
3318 that where a.deed of cession of jurisdiction, in compliance
with A..vtlcles 5242 to .5247, Inclusive, R.C.S. of Texas, 1925, has
.been made to the Federal Government that the state has no power
or jurisdiction to regulate.or control the sale of beer in such
ceded areas. That part of the holding in that opinion is not in-
volved nor affected ,here. In the same opinion, however, it was
held if a deed’of cession of jurisdiction had not been made, in
the statutory manner, by the State of Texas to the Federal Gov-
ernment, that the sale of beer by au Army canteen on grounds used
for military purposes located in .a “dry area” -as contemplated in
the Texas Liquor Control Act, bye the Federal Government, was sub-
ject to the Texas laws relating thereto. At ~the .time said opin-
ion was writteu ,(April. 12,, 1941) there was considerable confusion
in the court decisions regarding the legal status of Army post
exchanges being Federal instrumentalities. This is evidenced by
the extended discussion of ~the authorities on that point in our
Opinion No.~ O-2317, in which this department concluded that Amy
Post Nxchaugeswere no,t Federal instrumentalities of Government.
Itwill .,be noted that at the time said Opinion No. O-2317 (May
7, ,194C) was written the latest case of importance in the Federal
Hon. Coke Stevenson, page: 4
courts (United States vs. Query 121 F.(2d) 631) had not been
affirmed by the Fourth Circuit 6ourt of Appeals and, of course,
writ of certiorari had not, at that time, been denied in the
case. It should be further observed that at the time our Gpin-
ion No. O-3318 was written there were no facts before us show-
ing an expressed intention of the commanding officer of the
Eighth Corps Area embracing the State of Texas, subject to the
approval of the War Department, to authorize the sale of beer
by au Army post exchange in a dry area such as we are now con-
sidering to the men in the Army under the rules and regulations
for the reasons shown in Major General Donovauls letter as
quoted above.
On February 13, 1942, this department again carefully
reviewed the authorities regarding the legal status of Army post
exchanges and in Opinion No. O-4392 we held that Army post ex-
changes are Federal instrumentalities. We quote from the opinion:
"In reaching, our conclusion we are inclined to
follow the recent Federal decisions rather than the
older cases and the California Supreme Court. We do
so for two reasons. In the first place the question
discussed herein is essentially a Federal question and
the~interpretation placed on such a question by the
Federal courts and by the Federal administrative agen-
cies should be given more welght,than the decisions of
a state court. This Is especially true because the
case of United States vs.'Query directly passed on this
question and the Supreme Court of the United States de-
nied an application for writ of certiorarl~in November,
1941 . We adopt this view for the second reason that
in our opinion a full analysis of the operation of Army
post exchanges leads to the conclusion that they are
Federal instrumentalities performing a necessary and
vital governmental function under congressional authority.
As such they are exemptfrom the payment of the Texas
Chain Store Tax.
"Out Opilnion No. O-2317, which was written prior
to the decisions in the Query case and the Falls City
Brewiug Company case insofar asthe same holds post
exchanges not to be $ederal instrumentalities, is here-
by expressly overruled."
Since we have held that Army post exchanges are Federal
instrwnentalities we next consider the power of the state to regu-
late and control the sale of beer by Army post exchanges, in a
"dry area" within the meaning of the Texas Liquor Control Act,
within an area used by the Federal Government for military purposes
Hon. Coke Stevenson, page 5
but over which it has not acquired a deed of cession of jurisdic-
tion from the State of Texas.
The case of Fort Levenworth Railroad Company vs. Lewis,
114 U.'S. 525, 29 L. Ed. 264, by the Supreme Court of the United
States held:
"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 land 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 iustlu-
mentalities for the execution of its~powers will be
free:from any such Interference and juris dz!ctlon of
the state as would destroy or impair their effective
use for the purposes desired. Such is the law with
reference to all Instrumentalities created by the gen-
eral government. Their exemption from state, control
is essential to the Independence and sovereign au-
~thority of the United States within the sphere of their
delegated powers. But when not used as such instru-
mentalities, the Legislative power of the state over
the places acquiredwill be as full aud complete as
over any other places within their limits."
In the case of Ohlo vs. Thomas, 173 U. S. 277, 43 L.Ed.
699, where the Governor of a Soldiers' Home was convicted for dis-
regard of a state law concerning the use of oleomargarine, while
furnishing it to the Inmates of the home as a part of their ra-
tions, the court said:
It *** In making provision for so feeding the inmates,
the Governor, under the direction of the Board aT Managers,
and with the assent and approval of Congress, is engaged
In the internal administration of a Federal institution,
and we thiuk a state legislature has no constitutional power
to interfere with such management as is provided by Con-
gress.
"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 iumates of the home, nor has it
power to prohibit or regulate the furnishing of any article
of food which isapproved by the officers of the home, by
k,"zt;z;vd~of Managers,~and by Congress. Under
. such circu-
n the uolice Dower of state has no mri sdict~iog.
. _
Jion. Coke Stevenson, page 6
“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 fnstitution, under the lawful direction
of its Board of Managers and with the approval of Con-
gress are not subject to the jurisdiction of the state
in regard to those very matters of administration,
which are thus approved by Federal authorities.” (Un-
derscoring ours)
It was held in the case of Johnson vs. Maryland, 254
U.S. 5‘1, 65 L.%d. 128, that the State of Maryland had no author-
ity to arrest an employee of the Post Office Department of-the
United States while such employee was driving a Government motor
truck in the transportation of .malls over a post road from a
point in Maryland to Washington, DX., because the driver.had not
obtained a driver’s license as required by state law. The court
said:
“It seems to us that the immunity of the intru-
ments of the United States from state control in the
performance of their duties extends to a requirement
that they desist from performance until they satisfy
a state officer, upon examination, that they are com-
petent for a~necessary part of them, and pay a fee for
permission to go on. Such a requirement does not mere-
ly touch the government severance remotely by a general
rule of conduct; it lays hold of them in their specific
attempt to obey orders, and requires qualifications in
addition to those that the government has pronounced
sufficient . It is the duty of the department to employ
persons competent for their work, and that duty it must
be presumed has been performed.”
Article 2, Section 8, of the United States Constitution,
provides:
..
“The Congress shall have power *** to raise and
support armies *** to make rules for the government
and regulation of the land and naval forces *** and
to exercise exclusive legislation in all cases whatso-
ever *** and to exercise like authority over all places
purchased by the consent of the Legislature of the state
in which the same shall be, for the erection of forts,
magazines, arsenals, dock yards and other needful build-
1%; - 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
Hon. Coke Stevenson, page 7
Government of the.Unlted States ,or in any depart-
ment or officer thereof."
~Pursuant ,to the .foregoing ,constitutional authority the
Congress has enacted certain Acts relating to the creation, main-
tenance and support of the Army of the United.States. The stat-
utes which we think are pertinent to this discussion will be con-
sidered. .~
The duties of the Chief~of,Staff of the Army have been
defined by Congress and are contained in 10 U.S.C.A., Section 33.
Said section reads as follows:
"The,Chlef of Staff shall preside over the War
Department G~eneral'Staff and, uuder the dire.ction of
the ~Pres$.dent, or of the Secretary of War, uuderthe
direction of the President, shall cause to be made,
by the War Department Geae~ral Staff, the necessary
plans for recrditing,.orga&ziug, supplying, equipping,
mobilizing, training, and demobilizing the Army of the
United States, aud.:for the use of the.milltary forces
for national defense. .He shall transmit to the Secre-
tary tif,War the .plans and,recomendatlons prepared ~for
that purpose by the War ~Department General Staff and
advise h&z in regard thereto; upon the apprqval of such
plans or recommendation by the Secretary of War, he
shall,act as the agent of the Secretary of War In carry-
ing the same into.effect."
Section~l6 of,~lC U.S.C.A. reads as follows:
"The.Preside& is authorized &make and'publish
regulations for the government of ,the Army in accord-
ance with existing laws, which shall be in force and
,obeyed until altered or revoked by the same authority;
provided, that said regulation shall not be inconsist-
ent with the laws of the United States."
In accordance with the.above authority granted by Con-
gress, Army Reg~ulations~No.~210-65 were issued on July 1, 1941.
Said Regulations were promulgated by General G. C. Marshall Chief
.of Staff, by order of .the Secretary of War and they.superse$e all
previous letters and instructions pertaining~to exchanges. Said
‘Regulations read in.part as follows:
"1. Puruoses - ae Exchanges are established for
the following,purposes: (1) To supply the persons to
whom sales are authorized (par. 131, at the lowest
possible price, with articles of ordinary use, wear,
and consumption not supplied by the Government.
Hon. Coke Stevenson, page 8.
"(2) To afford to military personnel facilities
for comfort, recreation, and amusement to include, as
may be desirable, the financial support and mainten-
ance of recreational atheltics, entertainments, service
clubs, libraries, and community cooperation within the
limits prescribed in AR 210-50.
“(3) To provide, when necessary, the means for
improving organization messes. :a. Exchanges should be
conducted in such a mauner as to be of real assistance
and convenience to enlisted men and not as large profit
maklug institutions.
"2. Establishment - a. Whenever conditions make
it desirable and practicable the commanding officer of
a post, camp, or station wlli establish and maintain au
exchange to include such number of branches, departments,
and subordinate activities thereof as may be necessary
to serve the military personnel."
It is apparent therefore that Congress has delegated
the authority to make rules and regulations far the goverment
and operation of the Army. It has placed on the Chief of Staff,
as agent of the Secretary of War, the duty of supplying the, Army
of the United States, Army Post Exchanges have been established
pursuant to such authority for the purpose of supplyfng Army
personnel certain commodities not supplied by the Am&yitself.
Likewise, the purpose of a post exchange is shown to be to afford
to military personnel the facilities for comfort recreation and
amusement. We believe9 therefore, that the reg lli ations issued
concevn&&g$rmy post exchanges were promulgated under the author-
ity of Congress. United States VS. Query, 21 Fed. Supp. 784,
121 Fed. (2d) 6313 Ex parte Reed 100 U. S. 135 Denby VS. Berry,
263 U.S. 29; Smith vs. Whitney, 16 1 &.S. 167; United States VS.
Cordy, 58 Fed. (2d) 1013; Falls City Brewing Company VS. Reeves,
&I Fed. Supp. 35, and our Opinion No. O-4392.
It is a well settled rule of law that rules and regula-
tions authorized and promulgated by the proper authority and with-'
in the rule making power delegated to such authority and made in
accordance with existing laws have the force and effect of law.
United States vs. Freeman, 3 Howard 556 566, 11 L. Ed. 724; Gra-
tiot vs. United States, 4 Howard 80, 118 11 L. Ed. 884; Ex parte
Reed, supra; Denby VS. Berry, supra; SmiCh V. Whitney, supra;
United States vs. Query, supra; and our Opinion No. O-4392.
It was said by the court in the Falls City Brewing Com-
pany VS. Reeves, supra, case:
. .-._
Hon. Coke Stevenson, page 9 .:
“The general welfare and moraleof the personnel
~’in a military traipihg camp.3.s a.very.important.part
of any military progpau.look$ng to a.welltrained.aud:
efficient army. The view is now well established that
adequate recreational facilities ,fov~ soldiers in train-
,-irig are. as:important as adequate drill fields~. **+‘I
Under the holding ~ofthe authorities referred to above,
we~thiuk thatitmust Abe said without.question-that when the War
Department finds the ,neces~sity for and promulgatesrules and regu-
lations,forthe.benefit; of..the general welfarej morale.aud.safety
of the armed forces that state officials do not have.:the power’
nor authority to question the action of the military authorities.
.~ .~
~Under”the~doctP& laid dowg..&. the ;c&sof’~Fort:Leven-
worth Railway &&p&y vs.‘Lewls,‘Ohio vt Thomas% aud~Johnsou v.
,Maryland; supra; we thiukthat the.State has uo~<gowev bor:.juPis-
dlction.tovegulate~$n auymahuer nor.prohibit,.under &ts.law.s;
the’sale of 3.2.beerin’a dry,area,:-such as Camp~:Bowi.e)~.where,:the
sale of same has been authorized, in such area, by the proper
.authorlties of the.WaF Department .in.,the ,lnterest~~of.promotlng
the~.general~.welfa~e,:morale,aud safety.of-$ts armedforces. It
seemb”to~ds’th~t Congress has delegated to the War Department ‘very
broad powers for those purposes to be used by it, in its dlscre-
tion, whenever its-highlytrained military eqerts,.find it advis-
able and proper, the’only limitation on’such discretionary powers
being that such ‘3regulations shall not be inconsistent with the
laws of the UnitedStates,w, If we should be in error in our con-
clusion interpreting ‘the holdings In the United States Supreme
Court-cases,..jqst re-ferred.to,in this paragraph, we think that
under the doctrine announced in Query~v. United States, supra
(and other ~authoritie~stherein cited), that when the War Depart-
ment.authorizes,,,,.by proper ,order or regulation, the sale of 3.2
beer by~Army post exchanges to persons in the armed forces, where
the exchange is located in a “dry” area, as contemplated within
the Texas Liquor Control Act, the State through its officers and
agents has no power nor jurlsdlction:.to regulate.nor~ prohibitthe
same. We think such action Is authorized under the Federal laws.
If such regulation,$s authorized,a@wit,hin the~,scope of the dele-
gated authority ~then it hasthe equal force, effect and dignity
‘of law, Query V. United States supra; Rx parte Reed, 100 U. S.
13; Denby vs. Berry, 263 U. S. 39. Smith v. Whitney 1.16 U. S.
1675 United States V. Cordy 58 Fgd. (2d) 1013 Fali City Brewing
Co. v. Reeves, &I Fed (2d) 35 and our Opinion 60. O-4392.
We are advised by the General’s letter to you that the
State authorities of Louisiana have agreed with the contention of
the military authorities of the Army that the State of Louisiana
has no power to regulate nor prohibit, under its laws, the sale of
Hon. Coke Stevenson, page 10
3.2 beer by,Army post exchanges to persons In the Army in simi-
lar ttdry@l areas. .The War Department has authorized the sale of
beer, under the facts stated, in that State.
It is indicated in your letter to us that the War Depart-
ment has already authorized the sale of 3.2 beer in Texas in “dry”
areas under the conditions and circumstances already discussed.
However, from a consideration of the General’s letter we conclude
that he proposes to recommend to the.War Department, and subject
to its approval, that the sale of 3.2 beer be authorized at the
Ahy post exchanges at Camp Bowie, under the conditkons he has set
out in his letter.
You are, therefore, respectfully advised that it is our
opinion that when the War Department properly approves the proposal
of Major General Donovan and authorizes, by regulation or order,
the sale of 3.2 beer at Camp Bowie’by the post exchange to persons
in the Army that the State of Texas has no jurisdiction nor power
to regulate nor prohibit the same under its laws.
Any conclusions expressed in our Opinion No. 0-331.8 which
may be contrary to those expressed herein are hereby expressly
overruled.
We trust that in this manner we fully answered your in-
‘quey .
Yours very truly
ATTORNRY
GENERALOFTa
By /s/ Harold McCracken
Harold McCracken, Assistant
APPROvED,MAR 21, 1942
/s/ Grover Sellers
FIRST ASSISTANTATTORNNY
GNNFRAL
This opinion considered and approved In limited conference.
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