Motion for leave to File a Brief as — Silas Mason Co. v. Tax Comm'n of Wash.

Supreme Court brief1937

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Text

Office - Supreme Ccurt, U. S

—P APR 24° 1937

October Terw 1936,

xo se 8.

‘ , xe.

—

DAVID .H. RYAN,

ws.

THE STATE OF WASHINGTON, et al.

Ln A

APPEAL FROM THE SUPREME COURT OF

_. THE STATE OF WASHINGTON

Motion of Mason-Walsh-Atkinson-Kier Com >

pany for leave to file Brief as Amicus

_ Curiae, and Brief of Amicus Curiae

lw. G. GRAVES, ae :

ARNOLD L. GRAVES, |

Counsel for Mason-Walsh-Atkinson- -

' Kier Company ag Amicus Curiae. -

GRAVES, KIZER & GRAVES,

EMPIR® PRINTIC® 00., BPORANE

. SUBJECT INDEX

Page

{

Brief as Amicus Curiae... IGT. GER IR OO 1

Motion for Leave to File Brief as Amicus i sisctioiictaniind . @

Statement ......... EE Sts eM EAT EA ee 4

Argument —

A. Cession of Jurisdiction to United States. FF

S. Pusthase by United States with Consent of State...... 9

C. Grand Coulee Dam Project Within Constitutional

. Power of Congress....... Fiiiieia ood teale do iescea adauade xaeatebasdoatuienes -14

I ee ee .@

Se ora cok es 1 hp CNS AFR lO OP wee

ce ee ee oF eee

' .

cen meen a ge ERE EET OC COTE LTTE LLL ALLA LE LOC AI

ae :

——

a at

TABLE OF CASES CITED

: Pages

Arizona v. California, 283 U. S. 423......c-scccssseesseeee 11, 16, 22 -

Arlington Hotel Co. v. Fant, 278 U. S. 439.000... 9, 13, 18

. Ashwander v. Tennessee Valley Authority, =

AP Ua I acta ailind oli sina inccen inicio y--- 11,17, 23

; F 7

Concessions Company v. Morris, 109 Wash. 46.......... 7,9

Fort Leavenworth R. R. v. Lowe, 114 W. a 525 aes 8, 9,10 |

Gibson v. United States, 166 U. S. 269... 21

Gilman v. Philadelphia, 3 Wall. 713....-...-------------0------ 21

New York ex rel. Rogers v. Graves,

81 Law Ed. Adv. Op. No. 5, Pp. 202.....-..j-----e-cesssoenees 11,18

ew v. Mouse (Cal.), 265 Pac. CYT 13

Sharon v. Hill, 24 Fed. 726............ 13

Standard Oil Co. v. California, 291 U: S:-at.............. 9

State ex rel. Jones v. Mack (Nev.), 7 Pac. 76i.......... 13

Steele v. Halligan, 229 Fed. 1011-02-02... 13 -

Surplus Trading Co. v. Cook, 281 U. S. 647......... ees 9

United States v. Arizona, 295 U. $.174..cccnenncnenen 15

United States v. Tucker, 122 Fed. 518......-cccceccoen 12,13

United States v. Wurtzbarger, 276 Fed. 753................ 13

United States v. Chandler-Dunbar Co.,

07 OR 22 .

Wills v. State, 50 Tenn. PD scsciisiaiscedbeochiaehcndenaiesaieanicetin 13

TABLE OF STATUTES CITED

Remington’s Revised Statutes of Washington,

EE FIRE ccisntiiclonticsionsdiniiasininetiameninpliomanemenaien ae

| Remington’s Revised Statutes of Washington,

TUITE aiid toch cialienirhpecnccinsadlbaseiaedaiineiicbiicconenatcchitdaienidices 6, 8, 11,19

Art. I, § 8, Clause 17, Constitution of United States.. 10

U.S. C. A. Title 16, §§ 24, 57,95, 124... eeeeeeeeene 13

Che Supreme Court of the United States

Ortober Term, 1936

Na. 774

DAVID H. RYAN, ,

Appellant, -

vs.

THE STATE OF WASHINGTON, et al.

APPEAL FROM THE SUPREME COURT OF

; THE STATE OF WASHINGTON _

‘Motion of Mason-Walsh-Atkinson-Kier Com-

_ pany for leave to file Brief as Amicus

Curiae, and Brief of Amicus Curiae

-W. G. GRAVES,

ARNOLD L. GRAVES,

Counsel for Mason-Walsh-Atkinson-

Kier Company as Amicus Curiae.

ava KIZER & GRAVES,

- Of Counsel. :

Bt mG ee teen oe

er ris

ee ee

ee ae

SUPREME COURT OF THE UN ITED STATES

October Term, 1936 |

-_ Ta

No. 774

DAVID H. RYAN, |

Appellant, .

THE STATE OF WASHINGTON, et al.

MOTION FOR LEAVE TO FILE BRIEF AS

AMICUS CURIAE

May It PLEASE THE ‘Court:

The undersigned, as counsel for Mason-Walsh-At-

kinson-Kier Company respectfully moves this Honor-

‘able Court for leave to file the accompanying. brief in

thiS case as amicus curiae.

There has been filed in this cause a stipulation by

counsel ‘for the respective parties that the accompany-

ing — may be so filed.

W.:G. GRAVES, _

ARNOLD L. GRAVES,

Counsel for Mason-Walsh-Atkinson-

’ Kier Company ¢ as Amicus Curvae.

GRAVES, KIZER & GRAVES,

i Counsel.

a |

re RE IS

‘

BER RA ea ae i ee a vs <i A EES

RLS AS ee My

aS ee Sm) s wee

STATEMENT |

The appellants in Silas Mason jaeaee et al v.

‘Tax Commission of the State of Washington et al,

- number 773 upon the docket of this court, assign error

upon the question presented in this case. There, as

here, it is urged that the cession by the State of

Washington of jurisdiction to the United States pre--~

cludes the levy by the State of its occupation tax in

respect of’an occupation carried on-solely in ceded

territory. As noted in the brief in that case the |

_ cession of jurisdiction to tax was pleaded as a ground

of invalidity of the tax. The error of the trial court

in this respect was zssigned upon appeal to the Su-

preme Court of the State. By.agreement of the -

parties and with the consent of the court, the ques-

tion, common to both eases, of interference by the

State with the United States was argued and pre-

sented in the Silas Mason case while the question,

likewise common to both of the cases, of the effect of

the cession of jurisdiction to the United States was

presented in the Ryan eases. .Since this procedure .

simplifies the presentation of the question in the cases,

the appellants in the Silas Mason Company case adopt

the argument to be made in this case as applying to

* their assignment of error based on the cession of juris-

diction. For this reason counsel for all the parties in

both cases have stipulated that this brief may be filed

in this cause to present the views of the appellants

in the Silas Mason case. _ |

- The United States government is engaged in con-

structing the Grand Coulee Dam across the Columbia

River in the State of Washington. The appellants

in the two Ryan cases and the appeMants in the Silas

Mason ease are performing portions of the work un-.

der contracts with the United States. The details of

: the various contracts are set forth in Exhibit ‘‘A”’ in

a the two Ryan cases and in Exhibits ““A”’ and ““B”’ in

. the Silas Mason cases. “An inspection of the con-

tract and specifications. will disclose that the.United

' States prescribes in minute detail every step in the

performance of the contract. ‘The United States fur-

nishes to the contractor the greater portion of the

materials to be used, including the structural steel, the

_ cement and even the sand and gravel. The contrac-

_ tors’ function is the supply of labor. The dam is to’

. be built according to the government’s plans and speci-

fications. It is to be built under the supervision of

the officers of the government.and is in its every deta‘!

subject to their inspection and approval. Purchases

of every sort by the contractors are subject to the gov-

-ernment’s approval. The government specifies rules

for the hiring of labor, who shall be hired and the -

wages that shall be paid them. It specifies the hours

that men shall work. - It specifies in detail the place

where the contractors’ camp shall be built, how the

men shall be housed and how the buildings shall be

constructed. It specifies concerning the water supply

for the camp, for its fire protection, for its sewer and

sanitation, for concessions and laws in the camp-site,

what charges shall be made to the men, for schools,

for police protection, and in short it regulates in every

detail and every hour what the contractor shall do

and how it shall do it. | 3 . :

Exhibit ‘‘C”’ in the Silas Mason case is a map show-

ing the land at the site of the Grand Coulee Dam ac-

quired: by the United States government. Accompany-

ing the map is a letter from the United -States Engi-

_ neer in charge of the construction explaining the map

and stating the use to which the lands are put.

The record (R. 76, 104, 105) contains the stipula-

tion that the United States government has acquired

title to the lands shown on the map and that all of ©

the work done by the appellants in all of these cases —

is done solely upon land, the title to which has been

. _ acquired by the United States Government. Title to

the land. in private ownership was acquired either by

purchase or by.condemnation. J urisdiction. over the

land so acquired has. been ceded to the United omen

by the State of Washington by statute.

§ 8108, ‘Remington’s Revised Statutes of

Washington.

Congress has authorized the construction of the

Grand Céulee Dam by the Rivers and Harbors Bill

of the 74th Congress.

The Columbia. is the second Liicaauk river in North

America, exceeded in size only by the Mississippi. In

its lower reaches it carries the ocean borne traffic of ~

the world. The navigation. ef its upper reaches is

rendered difficult in places by shoals ‘and ‘rapids. The

river, however, throughout its length is. navigable in.

fact as in law. At the point of. construction of the

Grand Coulee Dam the river has been stipulated to be

navigable. (R. 105.) eae i

, Oa

633 Men

The. construction of the Grand Conlee Dam will

= create a quiet water pool extending from the middle

of the State of Washington to the Canadian boundary,

a distance of over 150 miles.

| ARGUMENT 7

_ A. CESSION OF JURISDICTION TO UNI.

TED STATES. Te”

The cession of jurisdiction by the State of Wash-

ington with the sole reservation of concurrent. juris-

- diction for the service of civil and criminal process

precludes the-levy by the State of taxes upon persons

-or property within the territory ceded. It is as though

_ this territory had ceased to be a part of the State

e of Washington. .This is recognized in Concessions

Company v. Morris, 109 Wash. 46. We quote the

language of the court at page 51: ,

“Under our law, Rem. Code, § 9101, only per-

sonal property in the state of Washington can be

listed for taxation, and the question, therefore,

must be answered. by a determination of whether

personal property situated upon this military res-

ervation is im the state of Washington. It seems

to us that the answer to this is clear, and that such

property is without the state in both a jurisdic-.

tional,and territorial] sense, for, as we havé seen

by the constitution of the ‘United States, and the

act of the legislature of this state, both the mili-

tary reservation itself and the jurisdiction and

legislation over it have been granted to the Uni-

ted States, and thereby there hae been created an

independent sovereignty the territory of which is

surrounded by the state of Washington, but over

which the state of Washington has no jurisdic-

Fy AD att

’ * BD

Ni Bi mB an 5 hens By om

tion. A territory has béen created which re-

sembles that of the District of Columbia, the

only reservation being that the state of Wash-

ington can serve civil and criminal process there-

in on actions arising outside the reservation.’’

The cession of jurisdiction by Remington’s " Re-

vised Statutes, § 8108, is as clear as anything can

_ be. We set forth the pertinent language of the stat-

ute, eliminating unnecessary verbiage:

‘“‘The consent of. the state of Washington be

and the same is hereby given to the acquisition

* *. * by the United States of América *. *

for. tine es of locks, dams, piers, breakwaters,

keepers’ -dwellings, and other necessary structures

- and purposes required in the improvement of the

rivers * * of this state, * *; andthe jurisdic -

tion: of this state is hereby ceded to the ae

States of America over all such land or lands a

may have been or may be hereafter acquired * *

for any or either of the purposes before men- —

tioned * *.”’

No more definite, precise and exact cession of jurisdic-

tion can well be imagined.

That the State of Washington, acting Gavia its

legislature, has power to make such a cession to the

Federal government is «likewise established by the

same case. We quote from page 67:

“As was decided in Fort Leavenworth R. v.

Lowe, above, the legislatures of the various states

have power to cede sovereignty to the Federal gov-

ernment of any territory within the state, * *.’’.

As the statement above indicates the. decision in

Fort Leavenworth Railroad v. Lowe, 114 U. S. 525,

is regarded as settling this question. We quote from

pages 540 and 541:

Bet to ) . \

er <2 : =

> ante

‘We: are here met with the objection that the °

Legislature of a Staté has nospower to cede away

her jurisdiction and legislative power over any

portion of her territory, * * * “,

“In their relation to the general government,

the States of the Union stand in a very different

- position from that -yhich they hold to foreign -

governments. Though the jurisdiction and author-

ity of the genera] government are essentially dif-

- ferent from’ those of the State, they are not those

of.a different country; and the two, the State and

general government, May deal with each other in

any way they may deem best to carry out the —

purposes of the Constitution. * *~° * Such

cession is really as much for the benefit of the

State as it is for the benefit of the United States. |

* * * 99 , ‘

- When it is established that the Legislature of the

State of Washington has power to .cede jurisdiction

over territory lying within the ‘State-of Washington

to the United States government, and when it is estab- _

lished that: it has ceded such. jurisdiction the conclu-

sion follows as a logical. necessity that the State has

parted with the power to tax persons or property

within such territory. Concessions Company v. Mor- .

ris, 109 Wash. 46, Fort Leavenworth Railroad Co. v.

Lowe, 114 U. S. 525, Arlington Hotel Company v.

Fant, 278 U. S. 439, Surplus Trading Company vy.

~ Cook, 281 U. S. 647, Standard Qil Co. v. California,

291 U. S. 242. :

- _B. PURCHASE BY UNITED STATES WITH

_ CONSENT OF STATE. . ea

The intention of the Legislature to cede exelusive

jurisdiction to the United States over all land ac-

Railroad Co. v. Lowe, 114 U.S. 525, 582: —

quired by it for the purpose of “" rene seems

beyond question. If so,-the case is disposed of. On

the other hand, if the statute, notwithstanding its ex-/

- plicit language, be construed ‘as not ceding jurisdie/

tion, nevertheless exclusive jurisdiction has been ac

- quired by the United States. A cession of jurisdic-

tion by the State, of course, is one- way in which the

United States can: acquire exclusive jurisdiction but.

it is not the only one. * Another is purchase with the

consent of the State. Bean | 7

‘a

_ By Article I, Section 8, Clause 17 of the Constitu-

tion of the United States, Congress is given power— |

‘*T'o exercise exclusive legislation in all cases

whatsoever,.over such district * * * and to

exercise like authority over ‘all places purchased

by the consent of the legislature of the State in

which the same shall be, for the erection of forts,

magazines, arsenals, dock= —_ and other need-

ful buildings.”’ *

_ The effect - of this clause of the Coustitatien has

. never been doubted. Tt is stated i in Fort Leavenworth

' “When the title is acquired by’ purchase by

‘consent of the Legislatures of the States, the fed-

eral jurisdiction is exclusive of all State: author-

ity. This follows from the declaration of the-

Constitution that Congress shall have ‘like author-

ity’ over. such places ds it has over the district

which is the seat of government; that is, the

power. of ‘exclusive legislation in all cases what-

soever.’ Broader or clearer tanguage could not

- .. be used to exclude all other authority than that of

- Congress; and that no other authority oan be

exercised over them has been the uniform opin-

11°°

~ ion of Rederal and State tribunals, and of the

Attorneys General.” aa

‘The requisites of exclusive jurisdiction in the Uni-.

ted States then are: re

| | eat

1.~ Purchase of land by the United States. .

2. Consent to such purchase by. the State Legis-

lature. |

3. A purpose within the meaning of the clause.

As to the first requisite it was stipulated (R. 76, 88,

103) that. title to all'of the land upon which the work 3

of the contractors was performed had been purchased

-*hy-the United States. ne \

Next, the consent to such purchase by the Legisla- »

ture of Washington. Remington’s Revised Statutes,

§ 8108: hie Wee i aes |

‘The consent of the state of Washington be

. and the same is hereby given to the acquisition

* * * by the United States of America * * *

for the sites of locks, dams, piers, breakwaters,

keepers’ dwellings, and other necessary structures

and purposes required in the improvement of the

Tivers * * *-of this’state, * * #9 .

_ Third, the purpose of the United States in unde¥-

taking the project. As,stated in the Act of Congress the .

purpose is the improvement of navigation.of the Colum-..-.

bia River by means of a dam and the subsidiary power.

plants and other structures. That such a project for —

_ Such a_ purpose is within the constitutional power of |

Congress to authorize is established by Arizona v. Cali-‘.

fornia, 283 U. 8. 423; Ashwander vy. Tennessee Valley _

Authority, 297 U. 8. 288; New York ex rel. Rogers y.

- Graves, 81 Law Ed. Adv. Op. No. 5, p. 202, and many

_ another case which it is unnecessary to cite.. Likewise

1 it is established by a long line of authorities, that such

a project is within the meaning of clause 17 of the Con-

stitution: : . . iil

From the earliest times the courts have given to

I this clause of the Constitution a broad and. liberal con-

struction and have never narrowed its application by

‘ strict or inflexible rules. The courts have construed

the language of clause 17 ‘‘and other needful build-

; ings’? as embracing all structures and places necessary

for carrying on the governmental as distinguished ©

i from the proprietary business of the government.

In United States v. Tucker, 122 Fed. 518, the court

expresses the onght as follows:

whe S red or te vare eerre ROOTS

‘While there might: possibly be some difficulty,

if the question was res integra, as to the strictly

proper construction and applicability to the case

of locks and dams of the wofds ‘for the erection

of forts, magazines, arsenals, dock yards, and

other needful buildings’ used in the clause of the

Constitution. above quoted, the cases seem to

leave no doubt that the broadest construciion has

been wisely put upon. that language—one which

_makes it cover all structures and all places neces-

_ sary-for carrying on the business of the national

a oiuercwet. ”

Many shieatinn which 7" no poestbility can be com-

‘ prehended within. the phrase ‘‘forts; Magazines, ar-

senals, dock-yards”? or can be considered as of like

kind have been held to be within the ee ‘‘and

other ‘needful aaaeae. > Thus: —

13 ;

Post Offices and Federal Court Houses, State ex

rel. Jones v. Mack (Nev. ), 47 Page. 763. :

‘Soldiers Homes, People v. Mouse, (Cal.), 265 Pac.

944.

Indian Schools, United States v. Wurtzbarger, 276

Fed. 753.

Customs House, Sharon v. Hill, 24 Fed. 726.

“Federal Penitentiary, Steele v. Halligan, 229 Fed.

1011.

Military Cemetery, Wills v. State, 5Q Tenn. 141.

Locks and — United — V. ‘Tucker, 122 Fed.

518. |

National Parks, Arlington Hotel Co. v. Pant, 278

U. S. 439, :

' The Arlington Hotel Company v. Fant case, supra,

deals with the Hot Springs National Park. We call

the court’s attention to the fact that Congress has as- .

serted the exclusive jurisdiction of the United States

over Yellowstone National Park, U.S.C. A., Title 16,

§ 24, Act of May 7, 1894, Chapter 22, § 1, 28 Stat. 73;

Sequoia, Yosemite and General Grant N ational Parks,

U. 8: C.K. Title 16, § 57, Act of Ji une 2, 1920, Chap-

’ ter 218, § 1, 41 Stat. 731; Mount Rainier National ?

Park, U.S. C. A; Title 16, § 95, Act of June 30, 1916,

“hits 197, § 1,.39 Stat. 243; Crater Lake N ational

Park, U. S.-C. ‘A., Title 16, § 124, Act of August 21,

1916, Chapter 368, § 1, 39 Stat. 5a.

14, .

C. GRAND COULEE DAM PROJECT WITH-

IN CONSTITUTIONAL POWER OF CONGRESS.

Apparently the Supreme Court of Washington does

not question either the rule that a cession of jurisdic-

tion by the State vests exclusive jurisdiction in tlie

United States or the rule that purchase of land with

the consent of the State Legislature vests exclusive

_ jurisdiction in the United States. The following ex-

cerpts appear to give the court’ S reasons for its deci-

sion (R. 46) :

‘“‘The point that we make and stress here, and

upon which we rest our ultimate conclusion here-

in, is that, while the statute conferred consent

upon the United States to acquire land within

the territory of the state, the state’s power to

cede jurisdiction is limited, by the statute, to .

those instances where it clearly appears that the .

land is to be used by the United States for a con-

stitutional or governmental purpose.”’

(R..50) :

_ “The facts, taken as a whole, argue conclu-

sively, in our opinion, that’.the state never in-

tended to cede, and the United States never in-

tended to take, exclusive _— over the

project. io iar

_The basis of the. court’s opinion then is its ‘eonclu-.

sion that the Grand Coulee Dam project is beyond the

scope of the governmental functions of’ the United

States and in excess of its power under the Constitu-

tion because the purpose of the United States in un-

dertaking:the work is not ‘‘a constitutional or gov-

ernmental purpose.’’ This finding is not made from

a consideration of the Act of Congress authorizing the .

ee ee eee eT ee PLL PLL RS ERI SL SLE RIOR EEN LEBEN IE LEE

BR ARTSY 2 -ersorye Gere RIE EER MINS cone mate tens need —e

project—but from certain clauses in contracts re-

lating to preliminary surveys and clauses in the speci-

fications drawn up by engineers employed by the ‘bu-

reau of reclamation. In other words, the declaration

by Congress ‘For the purpose of * in En improving -

navigation * * * the project known okie ites

‘Grand Coulee Dam’ on the Columbia River are

hereby authorized and adopted, * .* *?’ ig not. proof .

of the purpose of the United States, but a clause in

@ contract relating to a detail of the work inserted to -

insure compensation to injured workmen, is proof of

the fact that the purpose of the project as a whole is —

beyond the scope of the Constitutional powers of the

Federal government. -

As a matter of logic this reasoning is faulty. Since

Congress alone has power to authorize the Grand Cou-

lee Dam project (United States v. Arizona, 295 U. S.

174) it follows that the purpose for which the project

is authorized is the purpose of Congress. The Con-

. stitution gives to Congress the power to regulate com- _

merce. Without an Act of Congress no officer of the

United States,.not even the President, has power to

authorize the construction of a dam in navigable

waters. United States v. Arizona, supra. It follows .

that whatever any official of the United States or the ©

_ State of Washington may have said or done, or may

have omitted to say or do, is irrelevant to the ques-

tion of whether the United States has undertaken the

_ project for ‘‘a constitutional or governmental pur-

pose.”’ An official may exceed his authority, may mis-

take the purpose of Congress, or may misconstrue the’

Bees

Act of Congress, but his error cannot in logic control

the court’s decision upon the question whether a

project undertaken ‘pursuant to authorization by an

Act of Congress is within the constitutional power of

Congress to regulate commerce under the commerce

clause of the Constitution.

- The Act of Congress authorizing the Boulder Can-

yon Dam in the Colorado River declares the purpose

of the project to be river regulation, improvement of |

navigation, flood control, irrigation, domestic use and

power. In other words, the declaration of the pur-

pose of Congress in that Act is identical with the

declaration of Congress’. purpose in the Act author-

izing the Grand Coulee Dam project.

The Attorney General of Arizona urged ° this court

in Arizona v. California, 283 U. S. 423, that the im-

provement of navigation, notwithstanding the terms

of the Act,. was not intended. We quote his argument as

it Bie gine at pages 444-445 of the official report:

“Instead of being designed to improve naviga-

tion, the compact was drawn with the unmistak-

able intention of dedicating the river to uses in-

consistent with navigation. That is not a mere

speculation, but appears from the express lan- -

_ guage of the compact. * *

“‘The Act specifies, definitely and contnetaby,

only two uses to which the project shall be put.

One is the storage and sale of water. The other

is the generation and sale of electrical power.

Both uses would be hurtful rather than helpful to

navigation, if there were any navigation to be hurt

or helped.

‘“‘It requires no argument to show that the

navigation of a river, which has become non-nav-

eepemmenys erste et re ne Sepee ee

— . =. . oe seen mera “seen penis ELS EPO BEM LSP OSLO BO BIE CTA

igable from lack of water, cannot be improved —

~ by taking more water out of it. * = om

In spite . f the cogency of this argument this court

upheld the Boulder Canyon Project Act as a valid

exercise of the governmental and constitutional fune-

tions of the United States because of the declaration

by Congress in the Act of its purpose to improve nav-

igation. (pp. 455-456) |

_“Tnto the motives which induced members of

Congress to enact the Boulder Canyon Project

‘Act, this Court may not enquire. (Citing cases. )

The Act declares that ‘the authority to construct

the dam and reservoir is conferred, among other

things, for the purpose of ‘improving navigation —

and regulating the flow of the river.’ Ag the

river is navigable and the means which the Act

provides are not unrelated to the control of navi-

gation (citing cases), the erection and main-

tenance of such dam and reservoir are clearly

within. the powers conferred upon Congress.

Whether the particular structures proposed are

reasonably necessary is not for this Court to de-

termine. (Citing many cases.) And the fact that

purposes ‘other than navigation will also be served

could not invalidate the exercise of the authority -

conferred, even if those other purposes would not

alone -have justified an exercise of Congressional

power. (Citing cases.)*’

In Ashwander v. Valley Authority, 297 U. S. 288,

the power of Congress to construct the Wilson Dam

and Power Plant across the Tennessee River and to.

sell the electric energy generated was questioned. This

court remarks (p. 329): : |

‘While, in its present condition, the Tennessee

River is not adequately improved for commercial

navigation, and traffic-is small, we are not: at:lib-

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erty to conclude either that the river is not sus-

ceptible of development as an important water-

way, or that Congress has not undertaken that

development, or that the construction of the Wil-

son Dam was not an appropriate means to’ accom-

plish a legitimate end. :

“The Wilson Dam and its power plant must

be taken to have been constructed’ in the exercise

of the constitutional functions of the Federal

Government. val )

In Arlington Hotel Company v. Fant, 278 U. 8. 439,

it appeared that a portion of the land was leased to

a private hotel company. The attorneys for the plain- _

tiff.in error made a similar. argument to this court.

At page 441 of the report counsel say:

: “The site of the Arlington Hotel has never.

been devoted to or used for any governmental

. purpose of any character. .It has always been

used by the United States solely in its capacity

_ of owner-and landlord, for profit, and the United

States cannot, in that capacity, acquire or ar

jurisdiction of any character ov@ it, * *

| e

Answering this contention Mr. Chief Justice Taft re-

marks (p. 455) :

«¢# * * Nor is the- constitutional basis for

acquisition any less effective because the springs

thus kept safely available for the Federal pur-

pose do in the abundance of their flow also sup-

ply water sufficient to furnish aid to the indigent

and to those of the public of the United States

who are able to pay for hotel accommodation on -

the little. park . surrounding the hospital and the

springs. * * or

In the case of New York ex rel. Rogers v. Graves, |

samen io i ad: ROPE II IAS RE a BORE APPLE ILL IEE PRET NT ne EE BET

a See Ey SER gs emepeeeeereeenge =n

us ~~

2 a a

Law Edition Advance Opinions, Volume 81, No. 5,

page 202, the relator claimed his salary as general

counsel for the Panama Railroad Company as ex- @

empt from the state income tax of New York. The

court first determines that the -creation, manage-—

ment and operation of the Panama Canal are proper

governmental functions, and, secondly, that the rail-

road was built to aid in this purpose. The court goes

on to remark (p. 206) : .

. ;

‘We attach no’ importance to the fact that the

railroad company has utilized both its ships and

‘railroad to carry private freight and passengers.

The record shows that this is done to a limited |

extent compared with the government business ;

end that it is only incidental to the governmental

operations. The primary purpose of the enter- a

prise being legitimately governmental, its inciden- ge

tal use for private purposes affords no ground for

objection. * * * .

“It is suggested that the dairy, hotels, and other

_ enterprises, built and maintained by the com- _—

pany, are not governmental instrumentalities.

Even if we accept that conclusion—which, in view

- of their usé forthe personnel of the railroad and

- canal, we are far from doing—it would not alter

the fact that the railroad itself, in connection with

. the canal, is a Federal instrumentality.”

. Equally erroneous is the conclusion that. the State

of .Washington did not intend to cede exclusive juris- .

diction to the United States. This conclusion ob-

viously cannot be based upon-a construction of the’

statute of the State of Washington: by which the Leg-

islature cedes jurisdiction. Remington’s Revised

my a

Bbpreere secre verseenryarpnim aomeers one _ =~

-the jurisdiction of this state is hereby ceded to the

_ United States of America” obviously show “an_inten- |

tion of the Legislature to cede. The conclusion of

the court that a cession was not intended therefore

can be based"only upon the proposition that the. pow-

er of the Legislature to cede jurisdiction is limited to

projects within the constitutional power of Congress

to authorize. We place side by side the purposes of |

the Boulder Canyon Dam as quoted at page 456 of

the opinion of this court in Arizona: v. California,

supra, and the purposes of the Grand Coulee Dam

taken from the Rivers and Harbors Bill of the 74th

Congress , thus:

Boulder Canyon Dam .Grand Coulee Dam

River regulation Controlling floods

Improvement of navig# Improving navigation

tion |

streams of the United

States

Irrigation Storage and delivery of

, stored ‘waters

Domestic use i Reclamation of public lands

+ and Indian reservations

Satisfaction of preSent Other beneficial uses.

For power - For the genération of elec-

tric energy as a means of

financially aiding and as-

sisting such undertaking

Can it for one isiatins be doubted that the conclu-

sion of this court concerning the Boulder Canyon

Dam ‘‘the erection and maintenance of such a dam

and reservoir are clearly within the powers conferred

upon Congress’’ applies in all its force to the Grand

Coulee Dam project? | a;

Appellees make the further’ contention that a part

of the dam will rest upon the bed of the Columbia

River, title to which is vested in the State of Wash-

ington. The answer to this contention has often been

given by this court. It is, that whatever ownership to

the bed of navigable streams may vest in the State

such ownership is subordinate to the paramount right

of the Federal government to assert its title to so much

of the stream bed as is necessary to the improvement

of navigation. oe : |

In Gilman v.. Philadelphia, 3 Wall. 718, 714, this

court said: ; ,

~ __“‘Commerce includes navigation. The power to. :

regulate commerce comprehends the control for -

that’ purpose, and to the extent necessary; of all

the navigable waters of the United States which

are accessible from a State other than those in °

which they lie. For this purpose they are the ~ .

public property. of the nation, and subject to all

the requisite legislation by Congress, * * #9 —

and in Gibson’v. United States, 166 U. S. 269, 271:

—- navigable ig ayy under the control of

the United States for € purpose of regulating

and improving navigation, and although the title

to the shore and submerged soil is in the various

States and individual owners under them, it is

always subject to the servitude in respect of nav-

-igation created in favor of: the Federal Govern:

ment by the Constitution.’ y

iat ee eee

In United States v. Chandler-Dunbar. Co., 229 U.

S. 53, a condemnation suit by the United States-

against the Owners of the bed of a navigable stream

who had acquired title thereto from the State of _

_ Michigan, the court remarks (p62) : |

“It [the ownership of the stream bed] is sub-

ordinate to the public right of navigation, and

however helpful-in protecting the owner against -

the acts of third parties, is of ne avail-against the

exercise of the great and absolute power of Con-

gress over the improvement of navigable rivers.

That power of use and control comes from the

power .to. regulate commerce between the States

and with foreign nations. It includes navigation

and subjects every navigable river to the control

of Congress. All means having some positive ,

relation to the end in view which are not forbid-

den by some other provision of the Constitution,

are admissible. If, in the judgment of Congress,

the use of the bottom of the river is proper for

the placing therein structures in aid of naviga-

tion, it is not thereby taking private property for

a public use, for the owner’s title was in its very

nature subject to that use in the interest of public

navigation.”

—_. Arizona v. California, 283, U.S. 423, is an°action

for an injunction enjoining the erection of the Boul-

der Dam in the Colorado River brought by the State

of Arizona against the Secretary of the Interior of

the United States and the States of California, ete.

It appeared that a statute of Arizona required the

approval of the State Engineer of the plan of dams

erected by the United States government. The court

held that the United States has power to construct

a dam across a navigable river for the purpose of

‘ improving navigation and neéd not first obtain ap-

2 Oe . . ; g

‘a

proval of its plans by the State in which the dam is

to be located even though this be expressly required

by a statuté of such State. On epage 451 the court

Says: ;

without conforming to the police régulations of

a State. (Citing cases.) If Congress has power

to authorize the construction of the dam and res-

ervoir, Wilbur [Secretary of the Interior] is un-

der no obligation to submit the plans and specifi-

cations to the State Engineer for approval. And

the Federal Government has the power to create

this obstruction in the- river for the“purpose of

improving navigation if the Colorado River is

navigable. (Citing cases.)”?

In Ashwander v. Tennessee Valley Authority, 297

¥ ‘S. 288, the power of the United States to. dispose

of electric energy generated at the Wilson Dam in the

Tennessee River was challenged. This court first

found that the erection of a dam in a navigable river

was within the constitytional power of ‘Congress. At

page 330 the court says:

“* * * The-Government acquired full title to

the dam site, with all riparian rights. The power

of falling water was an inevitable incident of the |

construction of the dam. That water power came

into the exclusive control of the Federal Govern-

ment. The mechanical] energy was convertible

into electric energy, and the water power, the

right to convert it into electric energy, and the

electric energy thus produced, constitute property

belonging to the United States. * * *”

| ADDENDUM

While fully conceding (R. 76) that the Ryan con-

tracts were performed wholly upon lands acquired by

‘“‘The United States may perform its functions:

i a il alls yl lh

. . : Sie tele eee ye

am Pl ta lh ae OS ee

. °

a ee ee eee

the United States prior to the commencement of the

work, in the Silas Mason case appellees remark, some-

what casually, that Section 36 (upon Exhibit C) is

school land and that the title to it is.in the State of

Washington. ~ Neither the dam itself, nor any of the

structures appurtenant to it, nor any of the works of

the contractors are upon this land or directly con-

tiguous to it. Neither is the land part of the contrac-_

tors’ camp. In fact, it is across the river opposite.to

the contractors’ camp. For these reasons the Supreme . ;

Court of the State of Washington does not even no- -

_ tice this contention of appellees in its opinion. _ A ref-

erence to Exhibit C, the map and the letter accom-

panying it, and pages 104, 105 and 107, of the tran-

| _seript of the record (Silas Mason ease) show that this

land is known as the ‘‘Engineers’ Camp”’ to distin-

- guish it from the contractors’ camp (Mason City). It

- has been reserved pursuant to _Remington’ s Revised

Statutes, §§ 7410, 7412, as ite. of residences for

the engineers of the Umited States Bureau of Recla-.

mation. (R. 104, 10%) This reservation by the State

for the benefit of the United States will, if it be ma-

terial, “ripen into a grant from the State to the Uni-

ted States upon completion of the project.’’ For the

purposes of this case the question of title is irrelevant ~

and immaterial because the land is neither used nor

useful in, connection with any work of the contrac-

tors in either of the present cases. ;

CONCLUSION

It is respectfully submitted that the land acquired

by the United States government for the purpose of

the Grand Coulee. Dam project is both by express

cession by the State and by purchase by the United

States with the eonsen?® of the State removed from ~

the jurisdiction of the State of Washington and is

within the exélusive jurisdiction of the United States,

It follows that the State of Washington is without

power to levy any tax upon an occupation conducted

exclusively upon such territory.

_ Respectfully submitted, |

W. G. GRAVES, -

ARNOLD L.. GRAVES,

Counsel for Amicus Curiae,

GRAVES, KIZER & GRAVES,

Of Counsel. :

: Office - Supreme Cour, U. S

: — OCT 4 1937

Being bee me Tite | CARLES ELMORE CROF

as , —

~* SUPREME COURT.

OF THE UNITED STATES *~ |

: : ee

| y

_ DAVID H. RYAN, )

Appellant, ) }

. Vs. ) No. 8

_ THE STATE OF WASHINGTON, et al, )

: Appellees. )

— . AP ¢

"REPLY BRIEF OF AMICUS CURIAE -_

-—

E. P. DONNELLY,

\ Counsel for Appellees.

E. W. SCHWELLENBACH,

Post Office Address:

Ephrata, Washington.

_-IN THE

SUPREME COURT :

OF THE UNITED STATES |

a OCTOBER TERM, 1937,

_ 4. .—% ;

. 4

~ DAVID H. RYAN, : )

ee oe Appellant, 7

vs. ) No. 8

THE STATE OF WASHINGTON, et al., )

: “ —__ Appellees. )

7 ~

- =

REPLY BRIEF OF AMICUS CURIAE—~

E. P. DONNELLY,

Counsel*for Appellees. ny

E. W. SCHWELLENBACH,

Of Counsel ts

_ Post Office Address: a te

Ephrata, Washington. | |

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.