Brief on Behalf of Appellees — Silas Mason Co. v. Tax Comm'n of Wash.
Supreme Court brief1937
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Office ~ Supreme Court U.S
FILED
- APR 24 1937 «
CHARLES ELMORE CROFLEY
‘SUPRETE COURT
GF THE- ™
UNITED STATES
FILE COPY
OCTOBER TERM, 1936
“Nofiilll 8
DAvip H. RYAN, . Appellant, |
| 7, jee |
THE STATE OF WASHINGTON, |
; | Appellee. |
Davip H. RYAN, Appellant, |
: VS. t
Tax COMMISSION OF THE STATE OF
WASHINGTON, HAROLD H. HENNE-
FORD, THOMAS S. HEDGES, and T. M.
JENNER, Constituting the Tax Com-
mission of the State of Washington,
oe
APPEAL -FROM~THE SUPREME COURT OF
'y THE STATE OF WASHINGTON
BRIEF OF APPELLEES ~~
_ G. W. HAMILTON,
Attorney General,
EK. P. DONNELLY,
Assistant Attorney General,
Attorneys. for Appellees.
Office and Postoffice Address: . Temple of Justice, Olympia, Washington
STATE PRINTING PLANT, OLYMPIA, WASH.
~IN THE
SUPREME C COURT
OF THE
‘UNITED STATES
- OCTOBER TERM, 1936
No. 774
Davip H. RYAN, | =< Appellant, |
VS. ‘
THE STATE OF WASHINGTON, | |
Appellee.
DAVID H. RYAN, - Appellant,
. VS. ie r
TAX COMMISSION OF THE STATE OF
WASHINGTON, HAROLD H. HENNE-
FORD, THOMAS S. HEDGES, and T. M.
JENNER, Constituting the Tax Com-
mission ‘of the State of Washington,
Appellees.
APPEAL FROM THE SUPREME COURT OF
THE STATE OF WASHINGTON
BRIEF OF APPELLEES
G. W. HAMILTON,.
Attorney General,
E. P. DONNELLY,
Assistant Attorney General.,.
Attorneys for Appellees.
Office and Postoffice Address: Temple of Justice, Olympia, Washington
e
5
SUBJECT INDEX
Page
I ED I cg iin cccrensn esse eescasececes 7
Argument ....... SV te cewpkeekeleeatedéeeh sa 10
Appellant’s First Contract Was Performed Outside ..
We SIE EP BTR o's oon ccc ccc cnc sincceess ‘li
Appellant’s Claim of Immunity From State Taxa-
tion Not Supported by the Federal Govern-
IE 6a ha a i oaks Ga enw toe 1 Be Pe 12
° The Federal Government Does Not Acquire Ex-
clusive Jurisdiction Over Lands Used in Proj-
-ects for Aid of Navigation...............2... 14
The Federal Government Does Not Acquire Ex-
clusive Jurisdiction Over Lands Used For Irri-
gation, Reclamation or Power Projects........ 27
The State Has Neither Consented to the Acquisi-
tion of Title to the Coulee Dam Area Nor Ceded °
Exclusive Jurisdiction Over the Same to the
Federal Gov ernment.....:. SS a ee ad mae 33
Other Statutes of the State of Washington Contem-
- plate a Use Only by the Federal Government
\ With Retention of Jurisdiction and a Reverter
Me STINE, otc ccinnicctsscddasusevessssess 44 -
Appellant’s Contention That the Legislature Had
‘Power to Cede Exclusive Jurisdiction Is Not
Supported by the Authorities......... néeoknd 50
NS yak gees Poe e eee ceek eno 56
INDEX OF CASES CITED
> - ; Page
I en ee Os a i sie ccc ki ve sn cadases 32
Atkinson yv. State Tax Com. of Ore., Ore. Adv. Sheets,
Sy ee eae ceieduesas 15, 28, 56
Bigelow v. Nickerson, 70 Fed. 113..... et eae :. 18
Brush v. Commissioner of Internal Revenue, 81 Sup.
Ct. Adv. Ops. (L. Ed.) No. 10 at 451 pas nee we 27, 28
California-Oregon Power Co. v. Beaver Portland ~-
, oe Oe er errr errr err ee 28
* - Central Ry. Co. v. Jersey City, 209 U. S. 473 Peeve S 49
Clarke v. County of Milwaukee, 9. N. W. 782........ 53
_.Concessions Co. v. Morfis, 109 Wash. 46......... eee
Cook v. Dabney, 70 Ore. 529 (139 P. 721)....... Hee 15
Oscar Danials Go. v. City of Sault Ste. Marie, 175
We le i ed fcken ay Wiha oks aes ou sh cecnnaeen 40
Ft. Leavenworth v. Lowe. 114 U. SB; S25. ..2.... 35, 51
Georgia v. Chattanooga, 264 U. S. 481..... See Pees
Hamburg American Steamship Co. v. Brube, 196 U. S.
7407, 415: (49 L. Ed. 529,25 S.Ct. 352) ............ 17
Harmon.v. Chicago, 147 U.S. 409... ....... PA Mepete
eee ©, Ss BOF Os OA I Sc ines ees ksulcincebwens 14
Ill. Central R. R. v. Illinois, 146 U. S. 387, 13 Sup. Ct.
Dt casddsvekanisaeses nthesaeusiua ery .-. 18, 54
_In re Kelly, 71 Fed. 545......... sede naoee we case ouee 3F
In re O’Conmers37 Wis. 370... 2.2.0.6 cece cc caces 52, 53
Kohl v. U. S., 91 U. S. 367....2........ ry eer ree 21
Larson v. South Dakota, 278 U. S. 429, 49 S. Ct. 196,
ee Se ita ss beabosasaeasaes 31, 32, -49
Mallory v. Wheeler, 151 Wis. 136................... 53°:
Mann v. Land Co., 153 U. S. 273, 14 Sup. Ct. 820... .18,-19
Silas Mason Co., Inc. v. State Tax Com., No. 773, Oct.
ME CE bce kk cdkksdpaedeeesigeesodea es svake 8
Middleton v. La Compagnie Generale Transatlantique,
8 per iy pererey Porter cir 16, 17
- ; 5 . ;
INDEX OF CASES CITED—-Continued oa
e age
New Orleans v. U. S., 10 Pet. 6 ees oer 38
Nikis v. Commonwealth, 131 S. E. 236.....- poo 32
Ohio River Contracting Co. v. Gordon, 244 U.S. 68... 12
Palmer v. Barrett, 162 U.S. 399.......--- peered 42, 43
Payne v. Ryan, 183 Wash. 590.....-----; Jb eeseszces 11
Pollard’s Lesse v. Hagan, 3 How. 212 (11 L. Ed. 565)... 15
Pothier v. Rodman, 291 Fed. ane as Pl Mere re ed te 34
Rodman v. Pothier, 264°U. S. NSE GE PESO 26
Shivley v. Bowlby, 152 U.S.1 (38 L. Ed. 331, 14S. Ct.
50) ..... STIR CPOE EE PEC POET OT CTE 16, 18
-Sinks v. Reese, 19 Ohio State TER a eee 95 ae 39
Six Companies v. De eee 2 Fed. Supp. e
5 Ean eee mre rr rr ere oF 28, 29, 30, 31
Sollitt & Son Const. Co. v. Commonwealth, (Va.) 172
OD ci cc acd ctaneacunenboangersadecesse 12
State v. Allman, (Tenn.) 68S..W. (2d) page 478.... 49
State ex rel. Bussell v. Calvert, 33 Wash. 390.......- 43
State v. IniJah, 135 Ore. 66 (294 P. 1046). ..... wesssee 15
State v. Wiles, 166 Wash. 387.......--<-+--+>- Mange: -
Stockton v. Baltimore & N. Y.R., 32 Fed. 9..... 19, 20,25
- Thurston County v. Sisters of Charity, 14 Wash. 264. 14
Trimble v. Seattle, 64 Wash. 102 2... eee ee eae eee 14
Twin Falls v. Caldwell, 266 U.S. 85.....--+--2+++++> 28
Twin Falls Canal Co: v. Foote, 192 Fed. ae aia 46
U. S.v. Bevans, 3 Wheat. 336 (4 L. Ed. 404) . sfossedy ie
U. S. v. Tucker, 122 Fed. 518. .........--; 23, 25, 26, 27
U. S. v. Utah, 283 U. S. 64 bashes Ed. 844, 51 Sup. Ct.
W. \ PPPrrers yr ee rrr rer cs c,..i «15, 21, 22
: Willis v. Oscar Danials Co., 200 Mich. 19, 166 N. W.
1 aR ee eer een res ere. ee 42 °
Webb v. White Engineering Corp. (Ala.)' 85 So. 729... 57
. 6
CITATIONS TO CONSTITUTIONS AND STATUTES
Page
Article 1, Sec. 8, Clause 17, Federal Constitu-
fi RS Ghd week aaa eae eal ~19,-25, 30, 37, 38
Article 24, Waeshinuton State Constitution. were re 54.
Article 25, Washington State Constitution.......... . 55
Washington Constitution, 14th Amendment.......... 55
Chapter57,. Ex. Sess. 1983.....:....5..20.000005 a ae
Chapter 110, Laws of 1909;............6..66% yerere 45 —
’ Chapter 191, Laws of 1933)... 2..............00.. EN
- Section 7408, Rem. Rev. Stat.................. ete
section 7410, Rem: Rev. Stat... 0.2.0.0. e Species ene: 47
Section 7411, Rem. Rev. Stat............ aa Rees eee 47
Section 7412, Rem. Rev. OS opr b se tcakas scaesins an Oe
Section 7416, Rem. Rev. Stat...... Cece ee eES ELE CERES
-. Section 7416-1, Rem. Rev. Stat........... GIS daa ey ae
* Section 8108, Rem. Rev. Stat........... roo eee 48, 51,.55
'., Section 8109, Rem. Rev. Stat......).......ccccce eens 36
Section 8110, Rem. Rev. Stat....... Mg cd canoe 36
Section 8116, Rem. Rev. Stat............ ror ge 45
_ Section 8118, Rem. Rev. Stat... .................: ‘sane Me
Section 8119, Rem. Rev. Stat......... 1 edie karae ats 45
‘Section 601303, Ore.'Code 1930.......... Poorer ees 24
1 Sess. Acts 1885-1886, (Ky.) p. 11, ce... 23
Session Laws; 1889-90, p. 459..........2...App. “A” 59
Session Laws, 1891, p. 31............. pon ee “ESF
Session Laws, 1890, p: 386.............0.00- App “C” 64
U.S.C. A.G, See. Bi... 5 5... ns der ee ee ke
IN THE
‘SUPREME COURT
OF THE
UNITED STATES
a, OCTOBER, 1936, TERM
No. 774
DAVID H. RYAN, , scsi aaie )
.~ VS. —
THE STATE OF WASHINGTON, |
Appellee. |
— i RYAN, | Appellant, -
VS. 7
Tax COMMISSION OF THE STATE OF
WASHINGTON, HAROLD H, HENNE-:
FORD, THOMAS S. HEDGES, and T. M.
JENNER, Constituting the Tax Com-
mission of the State of Washington,
Appellees.
APPEAL FROM THE SUPREME COURT OF
‘THE STATE OF WASHINGTON |
- BRIEF OF APPELLEES
_ STATEMENT OF THE CASE
Appellant claiming immunity from the occupa-
tional tax’of the State of Washington contained in
chapter 191, Laws of 1933, as amended by chapter
57, Laws of Washington, Ex. Sess. of 1933, has
appealed from | a denial of this DaRASANy: by be
owi-
e
8
supreme court of the state in two cases here con-
solidated for argument.
The first of these cases is an appeal from an
order of the Tax Commission of the State of Wash-
ington, holding appellant to be taxable with respect
to his contracting business, under the. general pro-—
visions of chapter 57, Laws of Washington, enacted
at the Extraordinary Session of 1933, and with re-
spect to his mercantile business as a retail mer-
chant under section VII, subsection (d) of chapter
191, Laws of 1933, page 873. The trial court sus-
. tained the order of the tax commission-and the su-
preme court. sustained the judgment of the trial —
court.
The second case was filed to restrain the collec-
tion of the same occupational tax from appellant
with respect to his contracting business, in the con-
struction of a railroad 30 miles in length from the
city of Odair, Washington, to the site of the Coulee
project.
In neither case does appellant claim to be a gov-
ernmental instrumentality nor seek exemption as
an agent of the Federal government. Unlike the
‘contractors in the case of Silas Mason Co., Inc. v.
State Tax Commission, No. 773, October Term,
1936, in this court, appellant admits that he is an
= independent contractor not.entitled:to the immunity
from state taxation enjoyed by the Federal govern
- ment, and relies solely on the claim that ‘both his
9
contracting and mercantile businesses were con-
ducted entirely outside of the State of Washington.
The history of the Coulee Dam project is given
in appellee’s brief in Cause No. 773, which will be
argued with this case and this will not be repeated.
_ It:must be borne in mind, however, that this
project was started as a state project for the irri-
gation and reclamation of arid lands, and the pro-
duction of power, and that the Federal government
allocated relief monies to the project under the
N.LR.A. without specific act of Congress until long
after appellant’s contract had been performted and —
that there has been no effort on the part of the
Federal government to establish any reservation. _
. , the state and that the state has ceded its jurisdic-
10
ARGUMENT
Appellant contends that the lands acquired for
tne Coulee Dam -project were acquired by purchase
for one of the purposes within article A, section 8,
clause 17 of the Federal Constitution, with the con-
sent of the state and that, therefore, Federal juris-
diction is exclusive in such area for all purposes.
In the event the court should find that the
Coulee Dam project does not constitute “other need-
ful buildings” within the provisions of article 1,
‘section 8, clause 17 of the Federal Constitution,
counsel for appellant argues that the United States
still is a purchaser of the land with the consent of
tion so that in any event the property being used
for the Coulee Dam project is outside of the State
of Washingon and no state tax can therefore be
valid in that area.
These arguments are advanced without a in .
examination of the facts as applied to the statutes
of Washington .and the cases construing them, an
examination of which will show that the Federal
government is simply exercising concurrent. juris-
diction with the State of Washington and has re-
quired that appellant submit to the jurisdiction of
= State of Washington.
11
APPELLANT’S First CONTRACT WAS PERFORMED
OUTSIDE OF COULEE DAM AREA
Appellant performed the first contract by sub-
letting the same from his office, which he main-
tained in the Davenport hotel in the city of Spo-
kane,’ Washington, which is, of course, outside of
the Coulee Dam area. (R. 11.) He was subject to
the jurisdiction of the courts of this state and, in-
deed was sued in respect to the performance of this
identical contract in the superior court of Spokane -_
county. | ? |
- The case was appealed to the supreme court and
the decision’ will be found reported in 183 Wash.,
at page 590. Appellant’s opening brief in that case
_was prepared by counsel who now represent him in
the instant cases, and contains the following excel-
_ lent statement of the manner in which appellant
conducted his contracting business: io
«* * * Appellant was the lowest bidder for
this work, and the contract was thereafter let to
him. The: work consisted of moving one million
cubic yards of overburden on each side of the Co-
-lumbia river from the respective ends of the pro-
posed dam, being: a necessary preliminary to the
actual construction work. The work was performed
- by excavating the overburden with power shovels
and hauling it with dump trucks to the designated ©
spoil banks or dumping places, about twenty-five .
hundred feet up river from the damsite. ‘The work |
was all performed by appellant through subcon-
tractors; the west side, called in the contract sched-
ule No. 1, being let: to-Goodfellow Brothers, a cor-
- poration; while on the east side, called schedule No.
a
2, the excavation, generally referred to as the left-
ing or loading, was contracting to M. S. Ross, and
the hauling contract was let to McCutchen Trans-
portation Company. There was also one other small
subcontract on the east side, which has no bearin
on this case and which will not be further referre
to.” (Italics ours. )
| If we concede for the sake of argument that the
Coulee Dam area was under the exclusive jurisdic-
tion of the Federal government, still appellant
would have been taxable inasmuch as he transacted ~
some business on an area of the state outside of the
Federal reservation.
Ohio River Coktracting Co. vs. Gordon, 244
U. S. 68;
Sollitt & Sond Construction Company vs. .
Commonwealth (Va.), 172 S. E. 290.
But it cannot be conceded that there is any Fed-
eral reservation over which the Federal govern-
-ment could have exclusive jurisdiction and it is sub-
’- mitted that the contractors are taxable with respect
__. te both their contracting business and their mercan-
tile business.
. APPELLANT’S CLAIM OF IMMUNITY FROM STATE
TAXATION NoT SUPPORTED BY THE sleeve!
GOVERNMENT
As pointed out by the supreme’ court of the
state, this is not a question between the Federal
governinent and the state as to jurisdiction. Both
governments aré actually exercising eoncurrent ju-
risdiction.
13
Appellants attempt to avoid the payment of
taxes to the State of Washington which are imposed
upon all engaged in the contracting business and
for this-purpose alone argue that the Coulee Dam
area, of whatever size it may be; is outside of the
State of Washington.
Appellant’s contract does not authorize it to rep-
resent the Federal government in seeking immunity
from state taxation. As this court said in State v.
Wiles, 116 Wash. 387, at page 392, under these cir-
cumstances, it must be presumed that it was the.
intention that the contractor should be _—— by
the laws of the state.
In the case at her, however, the Federal govern-
ment has specifically provided that the contractor
* shall be subject to the jurisdiction of the state.
Appellant is afforded protection in his civil af-
fairs by the State of Washington alone. His at-
tempt is to enjoy the protection which the state
affords those doing business within its borders with-
out assuming the obligation of paying for that pro-
tection.
“Were | this attempt’ to Sudéeed, the many resi-
_ dents of the area adjacent to Coulee Dam would be
disenfranchised and both the state and ates gov-
ernments seriously cmmatragned. :
ee solely.
14
We approach the question from the standpoint
of both governments that relinquishment of the
power to tax is never to be assumed (Trimble v.
Seattle, 64 Wash. 102) ; that tax exemptions are not —
to be extended by judicial construction (Thurston ~
County v. Sisters of Charity, 14 Wash. 264), and- ..
that when the Federal government acts under the’ .
authority of the commerce clause for improvement
of navigation, it does not divest the state of exclu-
sive jurisdiction and its sovereign power over lands
used in connection with such improvements.
THE FEDERAL GOVERNMENT Dogs Nort ACQUIRE
EXCLUSIVE JURISDICTION OVER LANDS USED IN ©
PROJECTS FOR THE AID OF NAVIGATION —
While the project in the.case at bar was first — |
granted relief monies by the Federal government to
aid unemployment and while it is primarily an irri-
gation or power project, counsel for appellant seem -
to feel that their case stands onga better footing if
the project is treated as one i aid of navigation
eae | | |
_ While this is ordinarily a Federal: function,
Congress may consent to the improvement of navi-
gation by the state and a contribution in aid of the
project is sufficient consent.
Huse vs. Glover, 119 U.S. 543:
Harmon vs. Chicago, 147 U. S. at 409.
The dam itself rests upon the bed and idiowen of
a navigable river in the State of Washington and
15 ,
title to the land underlying the said river is, of
course,'in the State of Washington in trust for
public uses. ;
The supreme court of the state of Oregon
__ pointed this out very clearly on rehearing the case
“of Atkinson vs. State Tax Commission of Oregon;
_ in an opinion handed down April 6, 1937, and re-
* ported in the Oregon Advance Sheets, volume 24 at >
page 535. |
The supreme court of Oregon in that case held
that the contractors constructing the Bonneville
dam across the Columbia river under contract with
the War Department as an aid to navigation, were
~ subject to be taxed by the state of Oregon and re-
' pulsed the argument that the area was under the
exclusive jurisdiction of the Federal government. :
In the Oregon case, as in the case at. bar, a gen-
eral statute of consent and cession of jurisdiction
was relied upon by the contractors. Inasmuch as
this opinion may: not be readily available, the fol-
lowing rather lengthy quotation from the majority
opinion may be helpful:
| “Both channels.of the Columbia river within the
Bonneville dam project are navigable waters. And
since they are navigable, the soil underneath them
below ordinary high-water mark within the terri-
torial limits of the state of Oregon belongs to this
state: State v. Imlah, 135 Or. 66 (294 P. 1046);
Cook v. Dabney, 70 Or. 529.(139 P. 721); United
States v. Utah, 288 U. S. 64° (75 L. Ed. 844, 51
_ Ct. 4388); Pollard’s Lesse v. Hagan, 3 How. 212
es
(11 L. ‘Ed. 565) ; Shivley v. Bowlby, 152 U. 8. 1
(38 L. Ed. 331, 14,8. Ct. 548). %&
+: “The title to lands under the water of these
channels within the territorial limits ofthe state
-of Oregon has not been acquired by the fedéral gov-
ernment from the state of Oregon by purchase, con-
demnation or otherwise. “Nor has the state of Ore-
gon ceded-to the national government exclusive leg-
— jurisdiction over the waters of these chan-
nels
. “In United States v. Bevans, ‘3 Wheat. 336 (4
L. Ed. 404), a question arose as to whether the
state of Massachusetts or the United States had |
jurisdiction over a crime committed on a warship
“lying at anchor, in the main channel of Boston -
~ harbor.” In his opinion therein, at page 385, Chief
Justice Marshall said:
‘What then is the extent.of jurisdiction which
the state possesses? We answer, without hesitation,
the jurisdiction of a state is co-extensive with its: -
territory; co-extensive. with its legislative power.
The place described is unquestionably within the
original territory Of Massachusetts. It is, then,
within the jurisdiction of Massachusetts, unless
Fes jurisdiction has been ceded to - United -
tates..
* * * * oe
“In Middleton v. La Compagnie General: Trans-
atlantique, 100 Fed. 866, the circuit court of ap-
peals for the seco circuit had before it the ques-
tion of whether anjadministrator could mointain an
action for dama sustained by the widow and
next of kin in the case of a death due to negligence
at a place in the harbor within three-fourths of a
mile af Sandy Hook. The court, after pointing out
that there could be no recovery in a court of admir-
_alty under the general martime law for loss of life,
stated that it must be shown that the accident hap-
ened at a place within the legislative jurisdiction
17
hs some state whose law perinits such recovery. The
court predicted its conclusion in the case on the
assumption, as. contended for by the plaintiff, that
the United States purchased “the island or cape of -
Sandy Hook from shore to shore, bounded. on all
other sides (than the seule by the sea and Sandy
Hook bay. |
“It was there held, however; that in purchasing
this property the United States did not obtain any
land below low-water mark. The court’said: —
‘The purchase, if there was a purchase, and the
act of concession, if it be susceptible of a: construc-
tion which will bring it into harmony with the con-
stitution, and thus make it a valid “Consent to the
purchase,” gave to the United States the right to
exercise exclusive legislative jurisdiction only in so
much of the state of New Jersey as was to be trans-
ferred. Over all other places within the limits of
that state her legislative power remains as full and
complete as it was before, except that it-must be
so exercised as not to destroy or impair the forts,
arsenals, and other structures. erected on the land
transferred to the federal government: for military
or public purposes. The accident happened, as we
have seen, upon inland waters- which were within
_ the limits of the state (conceded to be so by the
neighboring state and by the United States) before .
the act of cession; and, since that act does not pur-
= to transfer the locality in question, the public
aws of New J ersey are in full force there, and
were so at the time of the accident.’
“The above case was cited with approval by the
supreme court of the United States in Hamburg-
American Steamship Co. v. Grube, 196 U. S. 407,
415 (49 L. Ed. 529, 195 S. Ct. 352), in the following
language:
“Moreover, ‘as was held by the dreuit court. of
appeals for the ‘second circuit, in Middleton v.
La Compaignie Generale Transatlantique, 100. Fed. .
j
Rep. 866, the act did not purport to transfer juris-
diction over the littoral waters beyond low water
~ mark, and for the purposes of this case the public
laws of New Jersey must be regarded as obtaining .
there, ‘whether enacted prior or subsequent to the
cession.’ ?
“In the case of Bigelow v. Nickerson, 70 Fed.
113, the circuit court of appeals, seventh circuit,
x had before it the question of whether a statute of
' Wisconsin -giving the right of recovery for death
from injury applied to a death which occurred on
the waters of Lake Michigan. It was contended
that the law was in conflict with the provisions of
the constitution of the United States granting to
Congress the power to exclusive legislation in all
-eases of admiralty and maritime jurisdiction. In
holding that the Wisconsin act was not violative of
this constitutional provision the court said:
‘In the case of Jilinois Cent. R. Co: v.: Illinois,
_146 U. S. 387, 13 Sup. Ct. 110, and in the case of
Shively v. Bowlby, 152 U. S. 1, 14 Sup. Ct. 548, it
is said. to be the settled law of this country. that
“gwnership of, and dominion and sovereignty over,
lands covered by tide waters or navigable lakes,
within the limits of the several states, belong to the
respective states within which they are found, witty,
the consequent right to use or dispose of any por+
tion thereof; when that can be without substantial
impairment of the interest of the pubiic in such
waters, and subject to the paramount rights of
Congress to control their navigation, so far as may
be necessary for the regulation of commerce.” In
the latter caSe it is said (page 58, 152 U. S., and
~~ page 548, 14 Sup. Ct.) that, upon admission of
: states into the Union, the “administration and dis-
position of the sovereign rights in navigable waters,
and in the soil under them,” passed to the control ?
of the states within whose boundaries such waters —
were included. See, also, Mann v. Land Co., 153
’ U. S.-273, 14 Sup. Ct. 820.
19
‘The — to the United States, in the constitu-
tion, of all cases of admiralty and maritime,juris-
diction, does not extend to a cession of the waters -
“in which those cases may arise, or‘of general juris-
diction over them: Congress may pass all laws .
which are necessary for giving the most complete
effect tothe exercise of the admiralty and martime
. jurisdiction granted to the government of the
Union, but the general jurisdiction over the place,
_ subject to this grant, adheres to the territory, as
a portion of territory not yet given away, and the
residuary power of ‘legislation will still remain in
the state. U.S. v. Bevans, 3 Wheat. 336. We are
therefore of the opinion that the surrounding states,
within- the limits prescribed in their respective or-
ganic acts, have sovereign rights in and over the
navigable: waters of Lake Michigan, subject. to the
paramount right of the federal government to regu-
late navigation and commerce between the states
and with foreign nations. The right of the state
to legislate and to enforce its laws is plenary, with- |
in the boundaries prescribed, limited and controlled
only by the paramount laws of the nation. There
does not necessarily result any conflict. Both juris-
dictions can coexist in the same plane in complete
harmony.’ (Italics supplied.)
“After discussing further the jurisdiction of
courts of admiralty, the opinion thus continues:
‘We think the clear result of the authorities to
be that the sovereignty of the state of Wisconsin
extends to the middle of the lake, and that its laws,
so far as they do not conflict with the laws of the
‘United States passed in the regulation of commerce
and of navigation, are operative within its pre-
scribed boundary
“Stockton v. Balitinove & N..Y. R., 32 Fed. 9,
was an action brought on, behalf of the state of New
Jersey in the name of its attorney general. A ques-
tion tliere arose as to the right of the Staten Island
Rapid Transit Railroad Company, under permis-
= cee
‘sent prevent the federal s governmen
Q
20
sion granted by Congress to said company and the
named defendant, or either of them, to erect a
bridge ‘across Arthur kill, between ‘New Jersey
and Staten island, in the state of New York, upon
the lands of the state. (of ‘New Jersey) situate. on
the shore, and under the waters of said kill,’ to pro-
ceed with the construction of :such’ bridge without
the consent of the state of New Jersey and withéut:
compensating that state for taking the bed of the
stream on which the bridge supports were to be
placed. The opinion in the case was written by Jus-
tice Bradley, a*member of the United States su-
: saiesaaon court sitting - a — judge.
* *
“It was also ce by the sade therein that
the state could be ousted by the federal government,
, of exclusive jurisdiction over the area included in
the bridge project only by purchase of the land by>.
the government with the consent. of the state or by |
cession by the state of jurisdiction over the same.
The court answered this argument by saying that :
the state itself can not by refusing to give its con-
visions of the federal énstitution herein
quoted, the court observed:
_ ‘It is argued that this is the only constitutional
method by which the United States government can
obtain the possession and use of lands within a
state, especially of lands belonging to the state.
‘The argument, however, is directed to the ac-_
* quisition of territory, with exclusive jurisdictign -
over the same, ayd is entirely sound in that regard.
But it does not touch the question as to the power_/
of the United States to acquire the mere use of the
land without exclusive jurisdiction therein. Nearly |
all the powers of government are exercised over ter-
ritory in which the United States and the several
-
21
states have concurrent jurisdictions It is only in
exceptional cases that the United States desires ‘to
have exclusive jurisdiction, and a consequent ces
sion of territory. It is very.true that the consent
of the mn legislature is required in order to give
the United States. this-exclusive jurisdiction. But
that is all. It is not required When exclusive juris-
diction is not sought.-On the contrary, the govern-
ment, if it sees fit, may condemn land for it6 pur-
poses without the consent of the state. Thus it was _
decided by the supreme court in the case of Kohl v.°
W. S., 91 U. S. 367,.that the government of: the
United States may exercise the right of eminent do- —
_ main within a state, for the purpose of condemning
‘land for the use of a post-office building, and may,
for this purpose, resort to its own courts. In such
a case, there can not be a doubt that the post-office . .
building could be erected and used by the govern-
ment without. asking‘ the congent of the state legis-
lature. Such consent would, indeed, be necessary to
vest inf the United States exclusive jurisdiction over
the post-office building and grounds; but it would
not be necessary to enable the government to. use
the property for the purpose for which it was ac-_ -
quired. And so of any other property wanted. for
a public purpose; the consent of the legislature is
not necessary to its acquisition, or to its use; but
only to the exclusion of state jurisdiction over the
lace.. That jurisdiction, if allowed to remain, will
Sstena to the punishment of crimes committed
-@gainst state laws-therein, and to the -service of
~ state process, but, of course, can not interfere with
the execution of the United States laws, nor with.
the performance, by United States officers and :
agents, of the duties devolved upon them, (Italics
supplied.) ; 7, :
“In United States v. Utah, supra, the court said:
___ “The government also refers to proceedings since
Utah became a state, with respect to governmental
22
investigations, operations under placer claims, and
withdrawals for power and reservoir sites. It is*
not necessary to review these transactions in detail,
as nothing that has been done alters the essential
facts with respect to the navigability of the streams,
and the United States could not without the consent
of Utah, divest that state of title to the beds of the
f
\
rivers which the state had acquired. Nor has Utah
* taken any action which could ‘be deemed to estop
the state stom asserting ute.
* *
“No authority has been. called to our attention
to the effect that the state of Oregon has in any
way relinquished its sovereignty over the area occu-
pied by the waters of Bradford slough and that part
of the north channel of the Columbia river which is
within the terrjtorial limits of the state. The whole
contention of the plaintiffs seems to be based upon
the well recognizéd rule that the federal .govern-
ment has exclusive power to regulate commerce, and
that such power extends to control of navigable
waters of the country, to the lands beneath them,
and to the erection of bridges, piers and all other
instrumentalities of commerce which in the judg-
ment of Congress may be necessary or expedient for
the exercise of this power. Such paramount author-
ity, however, does not give to the federal govern-
ment exclusive jurisdiction except in matters relat-
ing to the regulation of commerce and navigation,
and the state is free to exercise exclusive legislative
jurisdiction in all other matters within its terri-
orial boundaries, except in such instances as it has
in some manner relinquished jurisdiction. (Italies
ours. ) al
“Tt is therefore apparent that the state of Ore-
gon has power to tax any personal property belong-
ing to private individuals located on any of the
navigable watets within the Bonneville dam project -
inside the éxterior boundaries of the state. Like-
>
23
: oe veo N
wise, any other power of taxation which the state
has would be effective within that area. |
“The plaintiffs place much reliance upon the
case of United States v. Tucker, 122 Fed. 518, in
which it_was held by the United States district court
that a dam was a ‘needful building’ within the
meaning Of the provision of the national constitu-
tion hereinabove quoted. The quéstion there -in--
volved was raised by demurrer tb an indictment
which charged the defendant with a crime com- ©
mitted on lands owned by the United States and
known as lock No. 3 on Green river in the state of |
Kentucky. The court pointed ovt that the place
- Where the criminal acts were alleged to have been
committed ‘was on land then used for. public pur-
poses ; that the state’s interest in the oer had been
ceded to the United States by the legislature of
Kentucky under an act approved February 20, 1886
(1 Sess. Acts 1885-1886, p. 11, c. 69); and that in
addition to this legislature of the state had, by
&he same enactment, in express terms, yielded to
the United States jurisdiction over it.’ No such con-
‘Sent was given in the instant case.or cession made
by.the state of Oregon of jurisdiction ovér the navi-
gable waters involved in this litigation.
_ “Most of the foregoing discussion has been lim-
ited to the area not purchaged by the federal gov-
_- ernment. In that area, however, the main stric-
tural part of the'works is to be located: Eveu as- '
suming that the construction in the Bonneville dam
project may be classified as a ‘needful building,’
nevertheless only a small part of it is located on
‘ lands purchased by the federal government. (Italics
ours.) . , 7 Tatas
“To erect and maintain a structure such as the
‘Bonneville dam, the declared purpose of which is to
_ develop hydro-electric power and to aid navigation,
_ does it necessitate the United States government’s .
_ having exclusive jurisdiction over the site of con-
24
. struction. Such a project. differs materially from _ -
‘forts,, magazines, arserrals’ and*similar structures, |
which by their very nature-demand that the federal
government have exclusive jurisdiction over them.
“Tt has, already been pointed out that the federal.
government may acquire by purchase, condemnation
or otherwise, laiids within the state, without the
consent of the state, for governmental purposes,
and that in many instances the federal govefnment
- does not desire to exercise exclusive jurisdiction
over the land’sc acquired. The mere fact that there
may be on the statute books of the state a general
law, such as sec. 601303, Oregon Code 1930, con-
senting to the purchase of land by the United States
‘ and granting to the national government the right
to exercise exclusive jurisdiction thereover, daes not
imply that over all lands purchased by the national
government in the state after the enactment of such
law the state is divestedsipso facto of sovereignty,
and exclusive control over the acquired area is .as-
sumed by the federal government. * Inthe instant -
case there is nothing to indicate that the” federal
government desires to exercise exclusive legislative
jurisdiction over:the land purchased by it within
the Bonneville project. It would be somewhat in-
consistent to assume that since it does not have such
jurisdiction over the major, part of. the structures
which are now being built, the federal government
is seeking to exercise exclusive jurisdiction over
that part of the works located on.lands title to
| whieh it has ane. (Italics ours. )
\* ‘ * *
“We conclude that the federal government has
not acquired, nor is it assuming, exclusive legisla-
tive jurisdiction over any of the, area within the
Bonneville project inside the territorial limits of
‘the state of Oregon, and that the plaintiffs, are
amenable to the laws of this state relative to taxa-
tion om personal income earned within the state:”’
Fes
25
- + The following quotation from the opinion of Mr.
Justice Bradley in Stockton vs: Baltimore Railroad
| Company, 32 Fed. 9, has been often quoted with ap-
_ proval: A. |
_. “Nearly all the powers of the government a
exercised over territory in which the United Sta
andthe several states have concurrent jurisdiction.
It is cply in exceptional cases that the United States
desires to have exclusive jurisdiction, and a. conse-
“quent cession of territory.” (Italics ours.)
Notwithstanding this Oregon case counsel for
appellant argue that the Federal government has
acquired more ‘than concurrent jurisdiction over
lands which it purchased in connection with the .
Coulee’ project. ai ,
In fact, they seek to liken,these lands to the res-
ervation at: Fort Lewis, where there was an express
cession of exclusive jurisdiction over particular
lands for purposes of a fort and where the Fed-
~ eral government accepted this exclusive jurisdiction,
and (acting under authority eonferred by act 1,
section 8, clause 17, of the Federal Constitution)
was actually’ maintaining a fort on the area for
the support of the government.
United States v. Tucker, 122 Fed. 518, is the
only case relied upon as holding that locks and dams
are “needful buildings” within the meaning of the
constitutional provision above cited. But that was
a criminal case arising on demurrer to the indict-
ment charging a crime under a Federal statute and
presented by the United States Attorney. ‘The
' ee
| as ART Atsee
.2 state’s sovereign power of taxation was not in-
volved. The indictment (which for purposes of the
demurrer was taken to be true) charged that the
“place” where the crime was committed was within |
the “exclusive jurisdiction” of the United States:
(both by consent and purchase and by express ces-
sion describing the lands). -
‘The court stressed the fact that the government
was actually using and governing the lands and /
that Congress had legislated with respect to crimes
committed thereon.
It will be seen that gee district judge, in over-
' ruling the demurrer, di so because the indictment
made out a; prima facie case; the rule being that
such a serious questio “exclusive jurisdiction”
should not be summarily disposed of. .
Rodman v. Pothier, 264 U. S. at 402.
It must be pointed .out in passing that crimes
committed in the Coulee Dam area are in fact pros-
ecuted in the state courts and that the Federal
authorities have never assumed any of this burden?
In the Tucker case the land on which the struc-
ture was erected was being maintained for the per-
manent use of the government. In the case at bar,
the government, at most, is simply aiding in the *
construction of a state — pci private
in its nature. :
In the Tucker case, the government, —n
claiming jurisdiction and was actually exercising it.
peeEEs EG.
27
In the case at bar, the contractor is attempting
to make the claim4of jurisdiction‘for the govern-
ment. The government does not claim jurisdiction
and by its contract it has required. appellant to sub-
‘mit to the jurisdiction of the state. a
If the decision of the district judge. on the de-»
murrer in the Ticker case is to be taken as a ruling
on the authority of the Federal government to as-
sume exclusive jurisdiction over lands purchased in
connection with the exercise of powers conferred by
the commerce clause, it is oft of harmony with all .
of the decisions which have considered the matter,
when involving the power: to tax. 7
"eine
However, the question of exclusive jurisdiction
was.not involved in the Tucker cdse, and what was
said by the district court on that question was
wholly unnecessary to the disposition gf the case.
While such expressions may be respected, they do
4 not control when the precise -point has been pre-
sented for decision. . ne ee
Brush vs. Commissioner of Internal Revenue,
81 Sup. Ct. Advancé Opinions (L. Ed)
No. 10 at page 451.
THE FEDERAL GOVERNMENT“ DOES ‘Nor inte
EXCLUSIVE JURISDICTION OVER ‘LANDS USED FOR
IRRIGATION, RECLAMATION OR PQWER PROJECTS
As a‘ matter of fact, the present project is both
a reclamation and irrigation and a power project.
It is hoped that the sale of. power will defray its.
28
~ eost. Inasmuch as it is an irrigation and reclama-:
-
tion project, the work is being done under the direc-
tion of the Bureau of Reclamation rather than un-
der the: War Department as inthe case of the
Bonneville-dam involved in the Oregon case of At-
kinson vs. State. ;
_Production~and_sale of electrical energy -is, of:
course; a power reserved to the state and while
-title to lands in reclamation districts may nominally
be in the United States, the state itself has been
given jurisdiction to provide for the appropriation
and use of the water in connection with the reo:
mation of such lands. | ay \
Brugh vs. CommAssioner of I nternal Revenue,
_ 81 Sup. Ct. Adv. Ops. (L. se No. 10,
at 448;
Twin Falls Co. vs. Caldwell, 266 U. S. 85;
California-Oregon Power Co. vs. Beaver Port-
land Cement Company, 295 2U. S. 142.
. The case of Six Companies vs. DeVinney, 2 Fed.
Supp. 693, is one of the eatliest cases in which con-
tractors engaged in the. performance of public
works contracts sought to escape state taxation’ by
taking advantage of a general act consenting to—
| thé purchase of lands 8 Federal government.
The case was very carefully considered and the
opinion of the district court has been uniformly fol-
lowed. The contractors were held to be taxable even
though there had been some effort made to establish
a bone fide reservation.
v
Poe we { ; )
“A ¢ f 29 &
~~
- Six Companies were the contractors for the con-
_ struction of the Boulder Canyon project.. Unlike the
case at bar, Congress had established what'is known
as the Boulder Canyon Project Federal Reservation.
- The state of Nevada had by general act,. consented
to the acquisition of land by the Federal’ govern-
‘ment “* * * for sites for customs houses, court
houses, forts or arsenals or other public buildings
whatever, or for any other purpose of the govern-
ment * *” Bd ”
The act.of cession provided for exclusive juris-
diction for all purposes excetp the services of
process, and provided that as long as the lands re-
mained the property of the United States, they
should’ be free from state and county taxes. The
act required the filing of an accurate description
and plat with the governor of the state. This was
done and both the governor. of the-state of Nevada
and the Federal offjeials treated the Federal Reser-
vation as under the. exclusive jurisdiction of the
Federal gove roment.
ce
ha act of Congress provided that the project
_-was for the purpose of controlling floods; improving
navigation, providing for reclamation of public
lands and for the generation of electrical energy.
It is, also, provided that the title to the dam, reser-
‘ voir, plant and incident works, should forever re-
main in the United States — created a reserva-
tion. °
; 30 .
The Secretary of Interior, in filing the plat,
made his affidavit ‘that it was a true representation
of the area constituting the Boulder Canyon: Fed-
eral Reservation of the United States, in Nevada.
The description showed that the reservation con-
tained certain lands held in private ownership.
In filing the plat and description, the Secretary
of the Interior advised the Governor of the-state
that he did so pursuant to the 17th clause of article
1, section 8, of the Federal Constitution authorizing |
Congress to take and exercise jurisdiction.
The Six Companies case therefor, presents a -
much stronger case for exemption from state taxa-
tion, for there was an assumption of ‘jurisdiction
by the Federal government under an express act of
Congress, while in the case at bar, there is no reser-
vation, no congressional authority, and no attempt
to exercise jurisdiction on behalt of the Federal
government. ve . Sea
In the Six Companies casb, as in the case at bar,
the dams are being constructed in the beds of navi-
gable rivers, title to which is in the state, subject
to the right of the Féderal government to use the
same. — |
In denying immunity from state taxation in the _
Six Companies case, the-Federal judge said:
«* * * Assuming that the said dam, power
plant, and appurtenant works are within the mean-
ing of the expressions in the state statute, ‘other
public buildings, whatever, or for any other purpose
-
31
of the government,’ the question is presented.
whether the filing of a plat which is not only in: .
clusive of such dam, plant, and appurtenant works,
but is also. inclusive of more than a hundred square
miles of adjacent territory, is within the meaning
of the provisions of the state statute.
“Statutes relinquishing jurisdiction are strictly —
construed. A controlling reason for such construc-
tion is that it is a matter of the very greatest im-
portance to both the national and the state govern-
ments affected. Larson v. South Dakota, 278 U. S.
429, 49 S. Ct. 196, 73 L.Ed. 441.”
Construing the state act, the Federal court said on
page 698: |
“All the purposes specifically mentioned in sec-
‘tion It of the state act refer to public buildings of
_ a character the use of which.would either be perma-
_ nent or for an indefinite period of time, as dis-
tinguished from a mere incidental purpose mani-
festly of short duration. The expression in: the stat-
ute, ‘for any other purpose of the government,’ is
governed by the rule ejusdem generis, and likewise
refers to a purpose either of‘ indefinite duration or
of a permanent character. “
e -« * * je . .
“* * * It is clear that the state act does not
contemplate a ceding of jurisdiction over.a site the
use of which is not only temporary but incidental
to some other purpose. * * *” (Italics aurs.)
Referring to the reclamation law under which
the Secretary of the Interior is authorized to act
‘on irrigation. projects, the court further said:
“This law comprehends the acquisition by citi- |
zens of the United States of the land and water -
rights. The law’ generally comprehends that its
purposes will be carried out under national direc-
ae
a.
- 32
tion, but, subject thereto, always without relinquish-
ment of state jurisdiction. * * *” (Italics ours. )
The contractor Was held to be taxable by the
state in this case, notwithstanding the fact that.
the work was done under an express act of Con-
gress, which was sustained in Arizona v. California,
283 U. S. 423, cited by appellant. The trial court
correctly applied the principles laid down, in these
controlling decisions. |
Nikis v. Commonwealth, 131 S. E. 236, is en-
tirely in point as to the mercantile business con-
ducted. by appellant.
In that case, the supreme court of appeals of
Virginia, had to deal with a mercantile establish-
ment located on. lands purchased by the Federal
government with the. consent of the state of Vir-
-—Pinia, to be used for the approach to a bridge across=«
a navigable river.’ It was there contended, as it
is here, that the state of Virginia had divested it-
self of its sovereign rights. In disposing of this
contention, the court said:
“That a bridge is not ‘a building has been fre-
quently decided, and it seems h rdiynecessary to
say that an approach to a bridgg which is a public
highway is not.a building.
— .“In order to accord immunity from state taxa-
tion, the accused must not only sho wthat the land
is acquired by the United States, but also that it is
for one or more of the purposes so clearly indicated
in article 1, section 8, clause 17, of the Constitution.
We are clearvin our view that he is not entitled to
any such immunity.
5
: 33 os
“It is suggested in the brief for the accused that
the sole test is whether or not the land has been
acquired in the manner referred to in the clause
cited; that is over ‘places purchased by the consent —
_ of the Legislature of the state in which the. same
_Shall be.’ Clearly, however, this is not the sole test,
because it is manifest that the land must also be’
. acquired for one of the specific purposes which are
indicated in the clause, namely, for a fort, maga-
zine, arsenal, dockyard, or other needful building.”
(Italics ours. )...
«
' THE STATE Has NEITHER CONSENTED TO THE AC-
QUISITION OF TITLE TO THE COULEE DAM AREA
.__NoR CEDED EXCLUSIVE JURISDICTION OVER THE
- SAME TO THE FEDERAL GOVERNMENT
Counsel for appellants rely upon one general ‘
_ statute of the State of Washington in order to make
‘a claim that the state has consented to the purchase
of the lands necessary for the Caylee Dam project
or has ceded exclusive jurisdietion. All other stat-
utes are ignored. — ii
»In the first place there are two general acts in
this state whereby the state gave its consent to the
purchase of property in the State of Washington by
_ the Federal goverment. Both are limited to the’
situations where Congress is granted authority to
exercise exclusive legislation by the following words,
/ «* * * *° the consent herein and hereby given
‘ being in accordance with the provisions of the 17th
Clause of the 8th Section of the 1st Article of the
Constitution of the United States, and with the acts
- 34°
: an
of Congress in such cases made and provided. ~
~*~ * * ») Ss
The first of these acts is the act of January 23,
1890, to be found on page 459 of the Session Laws .
__»+——~for the years 1889 and 1890. Attached hereto is
; Appendix “A”’.
—
~
In this act the consent granted: by the state is |
qualified by the proviso:
“* .* * Provided, that a sufficient description
- by,metes and bounds and an accurate plat or map
of each such tract or parcel of land be filed in the
proper office of record in the county in which the
same is situated. * * *” me
The plat or map required tobe filed is a map
showing the extent of the reservation over which -
the Federal government is assuming jurisdiction.
. Construing such limited and qualified consent,
in the case of an express grant of the property”
ceded for Fort Lewis, the circuit court of appeals.
for the first circuit said in Pothier v. Rodman, 291
' Fed. at page 318: im
=,
“It is apparent that this section read in the light
of the surrounding circumstances, means that the
sovereign right of the State of Washington over the.
land in question and the acquisition of exclusive
legislative authority and jurisdiction by the United
States‘ thereover was not to take place when the
land had been conveyed by deed, but only when,
upon such conveyance being concluded, a sufficient
description by metes and bounds and an accurate
map.ef each such tract or parcel of land, together
with copies of orders, deeds, patents and other evi-
not
35
dences of title, had been filed for record in the
auditor’s office of Pieréé county. * * *” (Italics
ours. ) :
_ . In the same case, the court ably stated the rea-
soning underlying the decision in Ft. Leavenworth
v. Lowe, 114 U. S. 525, as follows:
“*s * * The equrt also recognized in its
opinion tha@the right of sovereignty of a state over
land purchased by the United States within its
_ boundaries was not to be taken ‘away by implica- |
tion; that the essence of the provision of thé Con-
stitution here under consideration was ‘that - the
state shall freely cede the particular place to the
United States for ane.of the specific and enumer-
ated objects. This jurisdiction cannot be acquired
tortiously or by disseizin of the state ; much less can
it be acquired by mere occupancy, with the implied
or tacit consent of the state, when such occupancy
is for the purpose of protection’ ( People v. Godfrey,
17 Johns. (N. Y.) 225. * * *” (Italics ours.) -
This court also said that the actual occupancy
of the land prior to filing the map ““* * *- had
no tendency to show that the state had ceded its
sovereignty, as the state’s right of sovereignty is
not to be taken away by implication.” :
In the case at bar, the government made no at-
map, and counsel, therefore, seek to rely on section
1 of the act of February 24, 1891, Which does con-
tain a cession of jurisdiction for the limited pur-
poses, the entire act being attached hereto as Ap-
pendix “B.” ae
In construing this act two things are apparent.
- tempt to comply with the condition by filing the ©
36
- First: The government did not intend to divest _
itself of the sovereign right of. taxation: because see
' ticn.2 of the act (section 8109, Rem. Rev. Stat.) ex-
-pressly exempts from taxation the land itself afid
~ the appurtenances necessary for the purposes men-
tioned. | oe
Applying the’ rule of strict construction the in-
tent of the legislature is shown to preserve the right
of taxation as to private persons, their businesses
and property as was done in the case of the express
cession of jurisdiction over lands for Rainier Na- _
tional Park.. (8110, Rem. Rev. Stat. )
Secondly: The Jegislature did not cede “exelu-
sive jurisdiction.” The word used was simply “Ju-
risdiction.”
In such a case the reasoning of Mr. Justice
Bradley in the “Arthur. Kill” case applied: That _
the Federal government, not desiring exclusive. ju-
risdiction, acquired only concurrent jurisdiction. It
_may exercise this jurisdiction ta,the full extent
necessary to accomplish its purpose, but without ex-
tinguishing the state’s sovereignty. - |
In the early case of.In re Kelly, 71 Fed. 545,
the decision’ turndd upon > ‘the omission in the state
act of the word ‘ ‘exclusive.”’ .
The question of the ‘jurisdiction’ saseca by the
Federal government over lands purchased by it with
the consent of the state of Wisconsin and used for
37.
“a national home for disabled soldiers, was squarely
presented. 7
The court. avoided deciding the question of
whether or not the state of Wisconsin had authority
to divest itself of -its sovereignty over lands which
- the Congress was not specifically authorized to gov-
ern by article 1, section 8, of the Federal Consti-
tution by deciding that as a matter of fact, the Wis-
. consin act ceded less than exclusive jurisdiction.
_ This construction ‘wes made necessary simply
because the state act omitted the word “exclusive.”
The court said: Ni | |
“* * * That it was not the legislative>in-
tent to abdicate all powers appears from the omis-
¢ _ ston in the act of the word ‘exclusive.’ It simply
grants ‘jurisdiction over the. several tracts’ pur- .
chased. In the general sense, jurisdiction is not in
its nature exclusive, but is concurrent. Com. -v.
Hudson, 11 Gray, 64.” ok ;
“* *. * Reading the Wisconsin act in the
light of this rule, and in the view that the purpose
“was not one for which exclusive legislation was pre-
scribed, either by the constitution or by congres-
‘ stonal enactments, the omission of the word ‘exelu-
sive’ or some equivalent term is material, and must’
be interpreted as ceding—that is, yielding or sur-
rendering—to the United States such jurisdiction
as Congress may find necessary for the objects of
the cession and for the exercise of which there must
be clear enactments, to that end within its powers.
~
f
7 * * *” .(Italics‘burs. )
And again the court said that to interpret a
‘state act ceding only jurisdiction as ceding exclu-
sive jurisdiction, would require
ao
38
terms of exclusion to be inferred,
aud would reverse the strict rule above indicated.
It. would further give an effect to the act against
the apparentintention of Congress, and opposed to
the intention, and possibly beyond the\powers, of .
the stag legislature. The thmates and dny inhab-
itants of the tract are-otherwise placed without the
protection of local laws, and without civil laws or
privileges. I cannot. believe that such construction
is either just or permissible.” (Italics ours.)
On page 549 the court stated the rule to be that
— legislative consent operates as a complete cession
only as to pbjects which are distinctly specified in
clause 17, section 8, article 1 of the Federal Con*
stitution, and ““* * * cannot be held to ‘So oper- «
ate, ipso facto, for objects not expyfsely included
therein adi oe
<* * .
. The court then said that the power of Congress
_ to extend its right to exercise exclusive jurisdiction
under the guise of “needful buildings” was not pre-
sented in‘the record, but quoted the following ex-
tract from the opinion of the supreme court of the
United States, i in New Orleans v. United States, . 10 -
Pet. 662, 737.
a Special provision is made in ‘the constitution
for the cession of jurisdiction frorn the states over
. places where the Federal government shall establish
forts or other military works. And it is only in -:
‘these places; or in the territories of the United
States, where it can exercise a general jurisdic-
tion.’ ”
Following this quotation, the court in the Kelly
case said: , ;
— ;
=
_ 39
“But, whatever may be -the rule pronounced
when that question arises, it appéars indisputable
that all state jrtrisdiction is not excluded from eyery
parcel of land purchased by the general government
im a state with legislative consent, irrespective of
its use; and, therefore, that if the purpose is. not
one of those distinctly named in this clause of the
-
constitution, the act 6f Congress which provides for |
the purehase and requires: the legislative consent
must in some unequivocal terms declare that exclu-
Sive jurisdictign is intended and necessary for the
proposed use, orat least the purpose stated must be
one of which it is manifest’ that any. exercise of co-
ordinate or other jurisdiction would be incompatible -
~
therewith. (Italics ours.) ee !
. - In no sense do these enactments in-
‘* *
‘tend works or establishments for the public safety
or defense, or for military purposes; nor do they
. contain any declaration, or suggestion even, of re-
quirement or need of exclusive legislation over the
lands purchased and -employed for the homes; nor
is there any provision which is incompatible with
In the case at bar, the same reasoning applies>
The lands are not necessary for public safety, de- ©
'* fense or military purposes; nor is there any re-
quirement or need of exclusive legislation on the
part ef the Federal government. |
the operation of the civil and wre a laws: of the
-Jocalit) aside from the regulations mentioned. * *” -
The court was influencéd in deciding the Kelly
case by the prompt action of Congress to meet the
in the early case of Sinks v. Reese, 19 Ohio State
a hy oe
The Ohio court there considered an act esding
+. f : é
° ‘
- effect of the decision of the supreme court of Ohio .
io. ;
40
. lands to the Federal government for a soldiers’
home, as ceding “exclusive jurisdiction.” To avoid
’ disenfranchisement of inmates of the home, Con-
gress. promptly. 99, Het of jurisdiction to the
state. (16 Stat. 399, Act of Jan. 21, 1871.)
A later case and one more nearly i in point as to
the character of the use by the Federal government,
is Oscar Danials Co. v. City of Sault Ste. Marie,
'. 175 N. W. 160. In this case the supreme court of
Michigan considered the question of the right of
~ the state of Michigan to tax the personal property
of a contractor whose office and principal place of -
business was in the county of Illinois and who was
present in the state of Michigan for the purpose of
performing a contract with the Federal government
to build a lock at the falls of St. Mary’s river in.
that state. The supreme court of Michigan stated -
- the question as follows:
“Upon the main proposition as to whether the
tax was rightfully laid, we are to consider whether
the jurisdiction of the state extended for that: pur-
pose to any personal property situated and used on
the ceded lands. If the territory is. beyond the
jurisdiction of the state and within the exclusive
jurisdiction of Congress, as the trial court held,
then the judgment is right. * * as
In deciding this question the court was met at
the outset with a prior decision. (Willis v. Oscar
Danials Co., 200 Mich. 19, 166 N. W. 496) in which
it had held that a contractor performing a contract
with the Federal government on said lands was not
a
Oo
under the workmen’s compensation act of the state
of Michigan. ‘
_ But when the supreme court of the state of
Michigan in the Oscar Ranials Co. case was pre-
? sented with a question-of whether or not the lands
theretofore ceded by the-state to the Federal gov-
ernment for the ship canal were without the juris--
diction for tax purposes, it decided the case quite
differently. if
It was oe out that in the Military Reserva-
tion case such as Fort Leavenworth Rk. R. Co. v.
Lowe, 114 U. S. 525, there was a cession of “exclu-
sive jurisdiction.” |
The supreme court of Michigan thereupon .de- :
cided that the state of Michigan had not divested .
itself of #ts sovereignty and that the lands were
within the state so that-the state could tax persons.
doing business or living thereon. _
In so holding the court said: _ |
“In the case at bar, there is not, in terms, as’
- there was in the case of the Ft. Leavenworth Reser-
vation, a cession to the United States of exclusive
jurisdiction, 3 ee cee . :
* . * * * .® “
«* *° * There was no occasion for the state
to cede exclusive jurisdiction to the United States,
no apparent reason for denying to the state such
jurisdiction, legislative and other, as did not inter-
‘fere with the control by the United States of the
property transferred for the purposes of the trans-
' fer. | :
fe ae
7
42
“We construe the oveid itself as. a cession of
less than exclusive jurisdiction, and the proviso’ as
it was construed in Willis v. Oscar Danials Co.,
supra. In this view, the ceded territory is not out
of the state of Michigan so far as the operation of -
its tax laws is concerndd, but is within the state:
The tax ‘levy: ih question was properly made, and
the tax was a lawful one.” (Italics ours. )
In the case at bar, the’ Federal yovernment has
| required appellant to submit to the jurisdiction of
thé -department of labor and industries and he ac-
tually paid premiums into the workmen’s compen-
. sation fund and received the benefit of the work-
men’s compensation: act.
_ The decision of the supreme court of Michigan
is most persuasive in view of the fact that the Mich-
‘igan authorities (being authorized sq to do by the
legislature), had conveyed the canal with all build-
ings and public works thereon to the government.
Whereas, in the case at bar, the Federal govern-
ment is simply using state lands, title to which re-
mains: in the state.
The case of Palmer v. mines 162 U.S. 399,
involved an act of the New York legislature ceding
“* * * the jurisdiction of this state * * .*”
rather than “exclusive jurisdiction.” ~In holding
that the state retained jurisdittion, however, the
court relied upon a provision thgt the land should
revert, if the specified use ceased, and the fact that
the government had made a lease of a portion of
43
_-the grounds which required the city authorities to
patrol and police them.
In the case at bar, all contracts require the Jands
to be under the care of the state in such matters.
The rule as to the capacity in which the Federal
government holds lands acquired by condemnation
is well stated in Barrett v. Palmer, 31 N. E. at page
1018, as follows:
ae 6 ¢
The power of the Federal govern-
ment to acquire lands within a state for’ govern-
mental purposes cannot be so exercised as to: dis-
member the state, and separate a part of its terri-
- tory from its jurisdiction. When the lands are ac-
quired by the exercise of the power of eminent do-
main, the United. States becomes simply an ordi-
| nary proprietor, and the jurisdiction and authority
of the, state over the lands remain unchanged, ex-
cept so far as their use for the purpose o f executing ©
the powers of the ‘general government necessarily
removes them from the domain of state’ authority.
* * *” (Italics ours.) | ‘
It ‘is apparent that neither of the general .acts -
of Washington consenting to the purchase of lands
by the Federal government were intended to apply
to a project such as that involved in the case at bar:
Neither act authorized the Federal government to.
acquire lands from the state (as was the case in
Michigan). This was decided ‘in State ex rel. Bus-
sell v. Calvert, 33 Wash. at page 390.
Both acts were discussed in that case. The court’ -
after pointing out that the consent was given
_ strictly in aceordance with the terms of clause 17,
44
section 8 of article 1, of the Federal Constitution,
construed the acts strictly and said:
«* ** * We do not think that it can reason-
ably be said that, when the legislature granted to
the United States the consent of the state to ac-_
quire, by purchase or by condemnation, land from
individuals or bodies politic, within this state, for
specified purposes, they intended thereby to grant |
consent to purchase lands from the state. If such
was their intention, we think they would have. ex-
pressed it in plain and unequivocal language.”.
To ascertain the intent of the legislature (the
project being on state lands, and privately owned
lands being only incidental thereto ) we must, there-
fore, look further.
OTHER STATUTES OF THE: STATE OF MYASHINGTON
CONTEMPLATE A USE ONLY BY THE FEDERAL
GOVERNMENT W:TH RETENTION OF JURISDIC-
TION AND.A REVEXTER TO THE STATE °
The applicable statute is also pointed out in
Bussell v. Calvert, 33 Wash. at page 386, as the act
of March 20, 1890 (Laws of 1890, page 428). Re-
ferring to this act, the court said in the Bussell .
case at page 386: © — \
“By an act.of the legislature approved March
20, 1890, the state granted to the United States the
use of any tide lands belonging to the state and ad-.
joining and bordering on any. tract, piece, or parcel
of land held or reserved by the government of the
United States for the purpose of erecting and main-
taining thereon forts, magazines, * * * and.
other needful buildings, so long as the upland ad-
' joining such tide lands shall continue to be held by
ae 45
_ ‘ P
the government of the United States:for any of the
public purposes theréin mentioned. This act .also
provides that, whenever the government: of the
United States shall eease to hold for public purposes
any such tract, piece, or parcel of land, the use of
the tide lands bordering thereon shall revert to the
State of Washington. Laws 1890, p. 428.
“Tt will be observed that this act simply granted
to the government of the United States the use of
tide lands helongine to the state, unon the econdi-'
tions, and for the time therein specified. It.does
not seem to contemnlate a’ conveyance of an estate
in fee, but rather an easement of an indefinite dura- —
tion. * * *” (Italics ours.) . |
This act, as.amended by chapter 110, Laws of ;
1909, to include other aids of navigation, is section
8116, Rem. Rev. Stat. It was passed at the very
session of the legislature which enacted the general
act of. January 23, 1890, and shows that the state
° ‘simply granted to the Federal government the use .
of its lands with a clause providing. that the use .
shall revert to the state in the event, the uplands
cease to be held for the purposes intended. |
Section 8118, Rem. Rev. Stat., provides that.
upon proper application an easement may be
granted to the United States. Section 8119, Rem.
Rev. Stat., provides for a reservation whenever the
United States shall cease to hold and use any up-
lands for the purposes mentioned. |
It has been seen that where a reversionary right
is retained by the state, the courts have held that
exclusive jurisdiction is not ceded. |
*46
_ The Coulee project is, also, a’power and irriga-
tion project. In so far as it is a power project,
it is not governmental at all, and partakes of the
nature of private business, which will ultimately be
conducted either by the state itself, or by a private
corporation acting under the laws of the state.
_ In so far as it is an-#rrigation or a reclamation
project, the function‘is not strictly governmental,
but one exercised for the general good of the people
and in aid of the government’s proprietary inter-
ests. :; . oe
Twin Falls Canal Co. v. Foote, 192 Fed. 583.
‘As it Was pointed out by the court in Six Cos. v. .
De Vinney, 2 Fed. Supp., at page 698, the Reclama-
tion Law, under which the Secretary of the Interior
acts, * * * comprehends that its purposes will
be carried out under national direction, but, subject
thereto, always without relinquishment of state ju-
_ risdiction.” ;
The same court. in the same case pointed out
that under the.Reclamation Law there was author-
ity to establish townsites on these projects “* * *
- subject to local state jurisdiction.” (Italics ours.)
The same court also pointed out, in this same
case, that if it were assumed that a dam, power
plant and appurtenant works were needful build-
ings, it could not be that this would authorize ex-
-~ elusive jurisdiction over hundreds of miles of adja-
cent territory.
47
The Secretary of the Interior, under the Fed-
eral act, has power to acquire any lands necessary
for such a project or for the purpose of being bene-
fited by the project. These lands will be held by the -
_ government in its proprietary capacity, but will re-
main under the jurisdiction of the state. The Secre-
tary of the Interior would have no authority to as-
sume exclusive jurisdiction over them for the Fed-
’ eral government, if he tried. a
The rights of the Federal government as to
power and irrigation projects, and as to the Colum-
bia River Basin project, particularly (section
7416-1, Rem. Rev. Stat.), are covered by sections
7408 to 7416, Rem. Rev. Stat.
_ Section 7408 gives the right of eminent —
to acquire lands or property for such a project.
Section 7410 provides for notice of investigation
by the Federal government, during which investiga-
tion, its right to use the waters in this state will be
protected. | ten, 0 |
Section 7411 covers the subject of the title’ uta
‘may be acquired by. the Federal government and
specifically proyides. that when all conditions are
complied with, title to the beds and shores of any
navigable lake or stream to be utilized for ‘such
projects shall vest in the United States only “* * *
to the extent necessary for the maintenance, opera-.
tion and control of such reservoir or other irriga-
tion works.” (Italics supplied.)
~ 48
. Section 7412 provides that on completion of such
a project, the filing of a plat with the Commissioner -
of Public Lands is necessary ‘before any reservation
shall ripen into agrant. —
Section 7416 grants the right, ee © * to con-
struct and maintain dams and works incident there-
. to over, upon and across the beds of rivers of the
State of Washington * * *,” and specifically
provides “* * * for an easement of necessary
portions of the beds of such rivers,” It is spe-
cifically provided that all rights under this ease-
ment shall be — and “* * * revert to the
state * * > in the event of failure to use such _
dams and works for a continuous period of two
years. | :
It is apparent that section 8108, Rem. Rev.
Stat., relied upon by appellant, was not intended to
and does not. apply to the Coulee Dam project. It
is also apparent.that the state retains jurisdiction
and that the ‘Federal government acquires only
what the courts. have referred to as all it wants,
namely, the right to use the lands for the er
_ purpose. ‘ ae
In determining such a serious question, all acts
of the state legislature and of the Congress must be ©
considered. Wherever possible such.a construction
should be placed on these-.acts as will not cause the
state to lose its jurisdiction over the ceded lands,
nor the inhabitants thereof, their rights and privi-.
49
_ leges as citizens of the state, nor to absolve these
inhabitants from their duties to the state.
_ State v. Allman (Tenn.), 68 S. W. (2), -page
‘ 478. ca ,
‘The supreme court of the United States said in
Larson v. South Dakota, 278 U. S., at page 436:
“ ‘But the object’and end of all government is
_ to promote the happiness and prosperity of the com- .
-munity by which it is established; and it can never
be assumed that the government intended to dimin-
_ ish its power of accomplishing the end for which it
Was created. * * *”. |
* * | * * * >
“ge * * A state ought never to be presumed’
power, the whole community have an interest in
preserving it undiminished. * * *” (Italics
' ours.) - | |
' Accordingly, the word “jurisdiction,” as used
in‘compacts between states, over bordering terri-
tory, is construed in a more limited sense than sov-
ereignty. |
_ Central Ry. Co. v. Jersey City, 209 U. 8. 473.
And the state of Georgia did not acquire sover-
- eign rights over property in Tennessee acquired
with the permission of that state for railroad pur-
* poses. In Georgia v. Chattanooga, 264 U. S. at
-~page 481, the supreme court of the United States
said in so, holding:
“* ¢ * Tie saverchanty of Georgia was not
extended into Tennessee. Its enterprise in Tennes-
_ See is a private undertaking. It occupies the same
position there as does a private corporation author- >
a
ad
to surrender this power, because, like the taxing ..
50
ized to own and operate a railroad; and, as to tit@t
property, it cannot claim sovereign privilege or im-
Ban's ‘Bank of the United States v. Planters’
ank,-9 Wheat. 904; Bank of Kentucky v. Wister,
2 Pet. 318, 323; Louisville, C. & C. R. R. Co. v.
Letson, 2 How. 497, 550; South Carolina v. United
States, 199 U.S. 437, 463. * * *.” (Italics ours. )
In the case at bar, the Federal goverment has
acquired railroad rights of way in the State of
Washington. :It hoius these lands as a proprietor
and the lands remain within the state just as they
would, if the railroad were operated by a private °
corporation. (Indeed it*is being operated and main-
tained by the M. W. A. K. Company as an independ-
ent contractor. )
The Federal government does not claim sover-
eignty or exclusive jurisdiction over this ribbon of
right of way thirty miles long and one hundréd feet
wide. There is a compelling reason for this: The ~
Congress has no constitutional power to exercise
exclusive legislation or jurisdiction over lands used
for railroad purposes, unless in connection with a
fort, or in a time of war.
. APPELLANT’S CONTENTION THAT THE LEGISLATURE
| HAD POWER TO CEDE EXCLUSIVE: JURISDICTION
Is Not SUPPORTED BY THE AUTHORITIES
| Counsel for appellant, apparently realizing that.
the purposes for which the property was acquired,
or the use of which was acquired in the case at bar,
* are not within the scope of ‘clause 17 of section 1 of
51 era a
tlie 8 of the Federal Constitution, argue that the
cession ‘contained in section 8108, Rem. Rev. Stati,
should be construed as a cession of sovereignty.
In the first place, counsel overlook the great dif-
ference between “jusisdiction” and “exclusive juris-* -
diction.” At the most, if section 8108, Rem. Rev.
Stat., applies, the United States received only-con-.
current jurisdiction (the purposes not being’ “Strjetly
_within clause 17). P .
. Counsel seeks to support his contention by citing
language from Ft. Leavenworth v. Lowe,.114 U. §.
525; and Concessions Co. v. Morris, 109 Wash. 46.
. HoWever, both of these cases involved lands ceded
for purposes of a fort; strictly within the scope of
clause 17. The cases must, of course, be read in
light of the facts,
; The Concessions case involved a special act ced-
ing “exclusive. jurisdiction” to particularly de-
scribed lands for purposes of a military reserya-
tion, the terms of which were acéepted and com-
plied with by the Federal government.
It has already been remarked that the court in -
| the Ft. Leavenworth case emphasized the necessity
of the cession being for one of the enumerated and |
specific objects of clause 17, before the cession
would operate to give the United States exclusive
jurisdiction.
| The reason is- plain ; mea state can only abdicate --
its sovereignty. where the United States has author-
£
. Vs
ig: : : ;
: Q
“@ at ee
32
ity to assume sovereignty. The United States may
not exercise sovereignty over the property adjacent
‘to thé Columbia river, except for the purposes spe-_
cifically mentioned in clause 17, and the operation
of a power plant and irrigation project is clearly, .
- not one of them.
A case which is in point is: In re O'Conner, 37
Wis. 379. Ih this caRe, referring to a purchase
made for a purpose within clause 17 “and with the
- consent of the state, the Wisconsin court said on
Pg
page 384:
““* * * When:the purchase is made in this
manner, and for such an object, then Congress may,
af it sees fit to do so, extinguish all state authority
and jurisdiction over the place so acquired, and. vest: |
exclusive jurisdiction over it in the Federal courts. |
‘ot a. Ae ours:)
: Again the same court ‘said on page 385:
«# * * And even in that case, if. Congress
has not exercised its exclusive right of. legislation
over the place, the “jurisdiction o the state to sup-
‘port and maintain -its laws, and to punish crimes
committed within its acknowledged limits, will be
.§ asserted and maintained. * * *.” (Italics ours. )
It appearing that the legislature of Wisconsin _
had attempted to cede jurisdiction for a purpose
not clearly within the scope of clause 1% = Wis-
consin court said at page 387: mm:
_&* * ° *) True, it appears that. the sepiaiatians
“by ch. 275, B and L..Laws of 1867, attempted to
cede to the. "United States jurisdiction. over the lands -
upon which the national home was to be located;
"but if the United States did not actually acquire
a 5 ° 4
.
= | 35
these lands as a sovereign power, in the mode and
for the purpose authorized by thé constitution, this
act of cession by the legislature is void. For it is
not competent for the legislature to abdicate: its
_ jurisdiction over its territory except where the
lands are purchased by the United States, for the
‘specific purposes contemplated by the constitution.
When that 1s done, the state may cede its junisdic-
~ tion over them to the United States; and,.should ™
. Congress see fit to exercise its exclusive right of
' legislation over the place, the state jurisdiction .
would be completely ousted. * * ~ + (Italies
ours. ) | bose
LY
As Congress had created a corporation to man-
age the Soldiers’ Home involved in the O’Conner
\acase, the court said: at page 389: rie)
“* * * Congress might, with the consent_of -
the state; purchase land for an arsenal, ‘and exer-————
_ cise full and absolute sovereignty over the ceded
_ territory. But, suppose Congress should incorporate
a company with power to build and maintain: an
— arsenal for the manufacture and storage of arms
"and other munitions of war, would the case stand
upon the same ground, and would the implication
arise that the state had lost jurisdiction over the:
arsenal .belonging to the corporation?? * * *”
(Italics ours. ) ae ener, ’
The holding of the O’Conner case is, in effect,
followed in Clarke v. County of Milwaukee, 9 N. W.
782: .- ’ ~<a Abe ome
-In Mallory v.:Wheeler, 151 Wis. 136, the su-
preme court of Wisconsin referred to: In re O’Con-
- ner, 837 Wis. 379, as holding:
=. —* *~ (het 2% was ne competent for the .
legislature. of Wisconsin to abdicate its jurisdiction
: | 54
over this territory except where the lands are pur-
chased by.the United States for the specific pur-
poses aaa by the constitution.” (Italics
ours. ) ©
In Illinois Central Railroad vs. Illinois, 146 -
U. S. 387, at page 453, the supreme court of the
United States considered the authority of the state
_ to divest itself of its jurisdiction of lands under —
navigable waters. The court said:
; «* * * A grant of all the lands under the
navigable waters of a state has never been adjudged
to be within the legislative power; ‘and any at-
tempted grant of the kind would be held, if not ab-
solutely void on its face, as subject te revocation.
The State can no more abdicate its trust over prop-
erty in which the whole people are interested, like
navigable waters and soils under them, so as to
leave them entirely under the use and ‘control of
private parties, except in the’ instance of parcels
mentioned for the improvement of the navigation |
and use of the waters, or when parcels can be dis-
posed of without impairment of the public interest .
.m what remains, than it can abdicate its police
powers in the administration of government and the
preservation of the peace. In the administration of
government the use of such powers may for a lim-
ited period be delegated to a municipality or other
body, but there always remains with the State the
right to revoke those powers and exercise them in
a more direct manner, and one more conformable
to its wishes. So with trusts connected with public
property, or property of a special character, like
lands under navigable waters, they cannot be placed —
entirely beyond the direction and control of. the
State.” . (Italics ours. )
Article XXIV of our constitution specifically
fixes the boundaries of the State of Washington.
.
55
No provision. is made for changing these bound-
aries or altering the territorial limits.
Article XXV, which consents to exclusive legis-
lation by Congress, limits that consent to the spe-
_ ¢ific purposes mentioned in clause 17 with a further
_proviso requiring a filing of an accurate plat or
Tap with “* * * a description by metes and
wee * * OP |
By the fourteenth amendment to the constitu-
tion of the State of Washington it is provided that:
« “The power of taxation is never to be suspended,
surrendered, or contracted —~s, * * *F
Construing section 8108, Rem. Rev. Stat., in
connection with the constitutional limitations and
. the other statutes of the State-of Washington, it is
apparent that it was not intended to apply and
could not apply to either tide or shorelands or sec-
tion 36, which is the section of school lands belong-
_ing to the State of Washington necessarily used by
the government in connection with the Coulee Dam
project:
As to lands which had been in private owner-
ship and which were necessarily acquired for the
project, title to the same rests in the United States
government or in the state in trust for public pur-
poses and legislative jurisdiction remains in the
_ state, the Federal government having such jurisdic-
tion only as may be necessary to carry out the
projects. : . ih 2
~ 56
‘CONCLUSION.
Counsel for appellant apparently makes the ex-
tremely narrow point that the particular part of
the work on the dam and power plant performed by
appellants was-done on lands purchased by the gov-
ernment above high water mark, tacitly admitting
that other portions of the work upon the dam and
power plant would have to be performed on tide
and shorelands, title to which rests in the state.
" Likening the Coulee Dam project to a building,
this argument would be that a contractor building
one wing of the building would be in the State of
Washington and the contractor. building another
wing woul? be outside of the state.
If aucnority is needed to refute this argument,
-it will be found in each and every case cited by ap-
pellants, for they all involve reservations of definite
boundaries used by the government in connection
with the maintenance of forts or buildings perma-
nently necessary for occupation by the government. °
It is admitted that there still is no reservation
-by metes and bounds. Land is still being acquired
as it becomes necessary.
Appellants in, the cases at bar were required to
_ submit to the workmen’s compensation law of the
State of Washington. As the supreme court of Ore-
gon pointed out in Atkinson vs. State Tax Commis-
sion, 24 Ore. Adv. Sheets, at page 551, it seems reéa- .
my
sonable to assume that the Federal officials under-
stood that the land included in the project was _not
under the exclusive legislative jurisdiction of the
United States. Otherwise, they would not have re-
quired the coritractors to provide state workmen’s
compensation and would have required the con-:
tractors to provide Federal employees’ compensa- |
tion under U. S. C. A. 5, section 751, as in the case
of Webb vs. White Engineering Corporation (Ala.),
85 So. 729.
The facts in the case of Silas Mason Co. vs. Tax
Commission of the State of Washington, now on ap-.
_ peal to this court as No. 773, which-are made a part
- of the record in this case by stipulation, show that
in subsequent contracts, the Federal officials went
further and required the contractors to submit to
legislative jurisdiction of the state in- respect to
school facilities, police protection, sanitation and, in
short, to submit to the jurisdiction of all regularly
- constituted state and county authorities.
It is submitted that the Federal government has |
not only failed to assume exclusive jurisdiction but
has indicated in every .way possible that it does not
wish exclisive jurisdiction and does not wish to de-
prive the residents of such a vast area of the right
to vote and the enjoyment of the privileges of citi-
zens of the State of Washington. —
It is therefore submitted that the judgment of
° ae. 58
the supreme court of the State of Washingtan
should be affirmed.
Respectfully submitted,
G. W. HAMILTON,
Attorney. General,
E. P. DONNELLY,
Assistant Atterney General,
Attorneys for Appellees.
a::
59
APPEN DIX “A”
(Laws of Washington for 1889-90, page 459)
UNITED STATES
AN ACT giving the consent of the Legislature of the
>= ‘State of Washington to the purchase and reser-
vation by the United States of land within this
State for public purposes, and expressing an
emergency.
Washington;
Section 1: That’ the consent of the legislature
of the State of Washington be and the same is
hereby given to the purchase, by the government of
the United States or under the authority of the
same, of any tract, piece or parcel of land from any
individual or ‘individuals, bodies politic or corporate,
within the boundaries of this state, for the purpose
of erecting and maintaining thereon armories, ar-
‘senals, fortifications, magazines, navy-yards, dock-
yards, custom-houses, light-houses: and other need-
ful public buildings or establishments whatsoever ;
the consent herein and hereby given being in ac-
cordance with the provisions of the. seventeenth
clause of the eighth section of the first article of the
constitution of the United. States, and with the acts
of Congress in such:cases made and provided. And
like consent of the legislature of the State of Wash-
ington is hereby given in the cases of all such trac
1
CONSENTING TO THE PURCHASE OF LANDS BY THE ;
Be it enacted by the Legislature of the State of
or parcels of land as have been heretofore pur-
60
“ chased by the government of the United States, or
which -have been or may hereafter be reserved by
. the said government, out of any public land: belong-
- Ing to the United States, for any of the purposes
before mentioned: Provided, That a sufficient de-
scription by metes and bounds and an accurate plat
or map of each such tract or parcel of land be filed
in the proper office of record in the county in which
the same is situated; together with copies of the
orders, deeds, patents or other evidences in writing
of the title of the United States: And provided,
further, That all civil process issued from the courts,
‘of this state, and such, criminal process as may
issue under the authority of this state against any
person charged with crime, in cases arising outside
of such purchases or reservations, may be served |
and executed thereon in the same mode and manner
and by the same officers as if the consent herein .
-. given had not been made.
See. 2. In order to facilitate the operations of
the government of the United States in the defense |
and proper lighting of the'coasts of this state; and
in continuing works of public improvement under-
taken by the government of the United States, this
act shall take effect immediately upon its passage.
Approved ced 23, 1890.
MEN
* 61
APPENDIX |
(Laws of Washington for 1891, page 31)
- CEDING JURISDICTION TO' THE UNITED STATES
AN Act to cede the jurisdiction of the State of
Washington. to the United States of America
_ over land needed for the improvement of rivers
and harbors, and for the purchase and condem-
nation thereof.
_ Be it enacted by the Legiclatine of the State of ©
_ Washington: |
Section 1. That the consent of the State of
Washington be and the same is hereby given to the
acquisition by purchase or by condemnation, under
the laws of this state relating to the appropriation
of private property to public uses, by the United
States of America, or under the authority of the
' same, of any tract, piece or parcel of land, from any
individual or individuals, bodies politic or corpo-
rate, within the boundaries or limits of this state,
for the sites of locks, dams, piers, breakwaters,
keepers’ dwellings, and other necessary structures
and purposes required in the improvement of the
rivers and harbors of this state or bordering there-
on, or for the sites of. forts, magazines, arsenals, |
docks, navy yards, naval station, or other needful
buildings authorized by any act of Congress, and
‘all deeds, conveyances of title papers for the same
shall be recorded, as in other cases, upon the land
records of the county i in which the land so acquired
62
-
may lie; and in like manner may be recorded a suf-
_ ficient description by metes and bounds, courses and
distances, of any tract or tracts, legal divisions or -
. Subdivisions of any public land belonging to the:
United States which may be set apart by the gen-
eral government for any or either of the purposes
before mentioned by an order, patent or-other of-
ficial document or papers describing such land; the
_ consent herein and hereby ‘given being in accordance
with the seventeenth clause of the eighth section of
the first article of the constitution of the United
States, and: with the acts of congress in such cases
made and provided, and the jurisdiction of this
state is hereby ceded to the United States of Amer-
ica over all such land or lands as may have been
or may be hereafter acquired by purchase or by con- ©
demnation, or set apart by the general government
for any or either of the purposes before mentioned:
Provided, That this state shall retain a concurrent
jurisdiction with the United States in and over all
tracts so acquired or set apart as aforesaid, so far
as that all civil and criminal process that may issue
under the authority of this state against any-person
or persons charged with crimes committed, or for
any cause of action or suit accruing without the
bounds of any such tract, may be executed therein
in the samé manner and with like effect as though
‘this assent and cession had not been granted, _
Sec. 2.. The tracts, pieces or parcels of land so
acquired or set apart, together with the tenements |
|
—
63
and appurtenances for the purposes. before men-
tioned, shall be held exempt from taxation by the
State of Washington. , :
Approved February 24, 1891.
AG
64
APPENDIX “C”
. (Laws of. Washington for 1890, page 386)
GRANTING CERTAIN LANDS TO THE UNITED STATES
_AN ACT granting to the United States, for public
purposes, the use of Certain tide-lands belonging |
to the State of Washington.
Be it enacted by the Legislature of the State of ;
Washington:
Section 1. That the use of any tide-lands be-
longing to the State of Washington, and adjoining '
and bordering on any tract, piece or parcel of land
held or reserved by. the government of the United
States for the purpose of erecting and maintaining
thereon forts, magazines, arsenals, dock yards and
other. needful buildings, be and the same is hereby
granted:to the United States so long as the upland -
adjoining such tide-lands shall continue to be held
by the government of the,United States for any of
the public purposes. above mentioned: " Provided,
That this grant’ shall not extend to or include : any
: lands covered by more than four. fathoms of water
at ordinary lew-tide: And provided further, That
‘whenever the government of the United States shall
cease to hold for public purposes any such tract,
piece or parcel of land, the use of the tide-lands bor-
- dering thereon shall revert to the State of Washing-
ton. | - ese ae | | :
Approved March 20, 1890. ° . ae
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.