# Brief on Behalf of Appellees — Silas Mason Co. v. Tax Comm'n of Wash. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386010_0226%3A09 ## Record - **Collection:** Supreme Court brief - **Document type:** Brief on Behalf of Appellees - **Published:** January 1, 1937 - **Citation:** 302 U.S. 186 ## Text 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, | = - ; 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 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: .- ’ ~= ‘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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386010_0226%3A09. Public record. Not legal advice.