Statement Opposing Jurisdiction — James Stewart & Co. v. Sadrakula

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OLERK.

SUPREME COURT OF THE. UNITED: srames

*

oe _ . OCTOBER TERM, 1939

No. 251

eee | | |

_ JAMES STNWART & CO., INC? |

a u Appellant, .

Us.

_ KATHERINE SADRAKULA, as ApMinistratrix or THE

' Goops, Cuatrrets AND Creprrs Winicn Were or Nicronas

SaDRAKULA, DECEASED. 2 28 ame

APPEAL FROM THE SUPREME COURT OF THE STATE OF NEW YORK.

G <2

STATEMENT OPPOSING JURISDICTION AND

MOTION TO DISMISS OR AFFIRM. :

Q

Leo Fixer, .

Counsel for Appellee.

Fo a

B ac oe =

Susgsect Inpex.

j ¢. ‘ . Page

a Statement opposing jurisdiction and motion to dis-° >

2. miss or affirm yes | ae oe iy

, é Preliminary statement. ; ‘ pice al ae

4 L. Tliere i is no Federal question i involved 7 3)

: . There is: no substantial Fec leral atari roe

ES volved ....... Rt eared eae

2 Answering appellant’ s assignment of errors: 11 war

Ay codec MERE ene eon ee

e 3 es :

4 ~ TasLe or Cases Crrep.

4 tna Life Insurance Co. v. Dunkeén, 266 U.S. 3889 11

4 “Alewander v.. Movictonews, 273 NOY. 511, 301 UL S. |

(a + 702- ae ee 5

| Alive vw UL S., 1 Ct. of Claims, 233, rev’d 6 Wall. 573, | |

a ISL. Ed. 947: yun ee

i 4 Alward vy. Johnson, 282 U.S. 509 10)

ig Arlington Hotel. vy. Fant, 278 U.S. 439 a

m4 Atkinson v. State Tax Commission, 62 P. (2d) 18, 7

| 4 aff'd 303 ©: S. 20 a | a a

4 Barrett y, Palmer, 135 N 1. Y: 336, 162 U.S. 399 6,7

a ee tohinhoff v. Fischer, 210 N: Y. He. 4 id 8

Brinke rhoff- warts Tr ust, ete, V .. Mill, 281 U. S. |

673 patie he ee ee a ee eS a ee

Campbell vy. fi 'nited States, 107 +S. 407 1

: : “Chapin v. Fye, 179 8S. 127 / 3

3 Chicago, Rock Island & Pacific RR. Co, v.. McGlinin, 4 Pe a

14U.S. 542 7)... | |. 6,7

- Coombs vw. Getz,.285 U.S. 4840 - -- ‘e481

) + Currin vy. Wallace, 59 S. Ct. 379 Pe

— . Deming. Carlisle Packing Co., 226 U.S, 102 7 ) ors

Drammond v. Norton,.156 A. D. ads aff’d 213 N.Y. |

2 670. as Fhe 8.

‘eh Fiske ¥. Beneec wet. S. 380 ’ . a &

: Ft. “Leavenworth Ry. Con. Lowe, 114 U.S. 525. i rho See

| 2928"

il . - INDEX —

é Page

“Honeyman v. Hanan, 800 U.S. 14, appeal dismissed

302 U.S. 375 | ae i eS

‘James y. Dravo Conrtrac linet! 0., 802 ULS, 124 10

Kaufmany. Hopper, 220 N.Y. 184 peas 6

Lar SOWN, South Dak ota, 278 U.S. 42 29, 73 L. Eid. 441 ce 4

’ Maryland Cas, Co. ve Cited States, 251 U.S. 342 15

Mellony. O'Neill, 275 U.S. 212772 lL. Ed. 25 ans,

Morrill ¥. Jones, 106 U.S. 466 12

Murray v. Joe Gerrick & Co., 291 U.S. 3815, 78 L. Ed.

. 821 6,9

Milheim vy. Moffat oe l, ete:, 262,08. 710 ; as,

Panama Refining Cov. Ryan, 55 S.C t 241 mee: Se

Price v, WMinois, 238 U.S. 446.° : R11

Ralph Sollett, ete v. Commonwealth, 78 L. Ed. 1463 _ 1

Roe va Nausas, 978 U, Ss. 191 DNS eee tee og oi Pas 11

Sauer v. United States, 10 F. (: 2d) 416 : ie

Schmidt vy Merchants sibas ni Transportation Co,

2iON, Y. 287 . Mt)

Seaboard Air Line v. Watson, 287 U. , 11

Silas Mason Co. v. Tar Commission vs rs Waikinieon, .

302 US. 186, 82 L. Ed. (adv.) 154, 159 4

Sterley, Halligan, 229-6. 1011 ee

if N.Y, Lage hereon a a a

. Tishman, 99 FB. (2) 954, certiorari denied,

x t. 487. oes 1:3.

WSN Vanilla, 220 ULS. 345 6

VU. Tel. Coc. Chiles, 14.0, 8. 274 | 6

Sratutes C1tep.

Labor Law, Sect. 241 sub.4- . 2, 6,9

State Law, See. 50, 52 and 53 3

General Minie ‘ipal Law, Sect. 210, 211, 212 4

Article I, Sect. 8, USS. ¢ oustitution, Clauses. 1, 7, 17,

-18 : : ‘ => 10

Act of ¢ ‘ongress of Fr ehruary Ast, 1928, 45 Stat. 540 - 6,8

Dac edent’s Estate Law, Sec. 130 . ; ae

ros

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"SUPREME COURT OF THE UNITED STATES ~*

| OCTOBER TERM, 1939 es

No. 251

JAMES STEWART & COG INC., . ‘

aaa Appellant,

= {ppellar

- KATHERINE SADRAKULA, as AbMINISTRATRIX OF THE .

Goops, CHATTELS AND Crepirs Wuicu Were or NICHOLAS

SaDRAKULA, DECEASED.

APPEAL FLOM THE SURREME COURT OF THE STATE OF NEW YORK.

: Ae

| STATEMENT OPPOSING JURISDICTION AND ~

"MOTION TO DISMISS OR AFFIRM.

*

Preliminary Statement

Appellee is the widow of one Nicholas: Sadrakula, who

died on October 24, 1935, as a-result of injuries sustained

that day when he fell from the first to the basement floor -

While working as a rigger in connection with the construe:

tion of a Post Office Building in the City of New York.

>

)

_

Appellant ‘was tke general contractor, under :an agree.

ment with tie Treasury Department dated November 9,

1934 (18° 121). Decedent's employer, a sub-contractor,”

ix “2, B. 118) undertook to install certain hoisting -

equipment. 2 . ‘

The steel somsteuetien had been fully completed and de-

~cedent was supervising the installation of guide rafls ina.”

**bay’’- designated: by the appellant. By a ‘‘bay’’ was

nieant the area between four upright steel columns, being

30’ long and 20’ wide. The ‘‘bay’’? was divided by two

parallel cross girders thus creating three equal panels 30’ |

long and 6!’ wide. . ;

It was within the center mana that the rails had been

‘justalled for the purpose of guiding the ‘“bucket’’ in ascent

‘und-descent to various floors in the building.

The actual space réasonably required for the installation .

of, the guide rails and the bucket was less than 60 square

1

inches.

The’ photographs (Ex. 1 and 2, R. 116, 117) show the

-gnide rails and ‘the sr within the center panel of the

bay.

. In looking at the photographs, North is to the left-and

South to the right. The nearer guide rail was called the

‘west rail”. , |

Appellant conceded that at no time did it attempt to slag

over any part of the bay and the area to the west of the

cuide rails was unguarded.

The evidence established that Sadrakula fell- backwards

through this unguarded space. To the absence of . the

planking required by Section 241 subd. 4-of the Labor Law,’

his death was attributed. (Decision by Mr. Justice Lewis;

R. 122. “os :

HT references are to pages of the printed case on appeal in the Court

f Appeals, which appellant is filing with the Clerk of this Court.

‘Appendix, p. 15.

gene ray eR

ys a ees Page are

‘3

\ P

Upoht the trial, appellant rested at the end of appellee’s ~

‘proof. .The jury was waived and the Court found for ap- }

pellee. That determination has. been unanimously affirmed

- by the.Appellate Division of the New York Supreme Court

and the Court of Appeals. 3 ,

The basis of the present appeal rests.upon the conten-

_ tion of appellant, as certified below, that a Federal quéstion

was necessarily, passed upon. =A

In answer to all of appellant’s contentions, appe ee re-

_spectfully submits a statement of matter and grounds mak-

ing against the jurisdiction of the United States Supreme

Court as follows: ,

I —$$_—$_

There is no Federal Question Involved.

The jurisdiction of this Honorable Court to entertain

this appeal exists only if a Federal question is tt al

from the reeord. ’

Mellon v. O'Neill, 275 U. S. 212, 72 L. Ea. 245.

It cannot be supplied by an assignment of errors.

“Chapin v. Fye, 179 U. S. 127, 45 L. Ed. 119.

Appellee contends that there i is no Federal question In-

volved because although the United States purchased the

enclave before decedent met his death, it did not obtain

“exclusive jurisdiction’? thereof, until several months

later. (R. Stipulation pgs, 17 ¢ 1-18). .

By this stipulation (supra) it was agr eed that the United-

States purchased the property in 1931. and. filed certified

copies of the’record or transfer of the property, in the of-

fice of the Secretary of State on December 26th, 1935-(R.

17, 18),

Decedent met his death on Oetober 24th, 1935 (R. 18).

_Appellant states ‘‘exclusive jurisdiction thereof was

ceded to the United States by Consolidated Laws, Chapter

57, Section 50, 53 (State Law, Secs. 50, 53)’’. |

Pi oe

We do not kitiow why it ‘omitted Section 52.of the same

law because it is only by reason, thereof that. ‘‘exclusive |

jurisdiction’? was ceded. As the enclavé in question was

also within the confines of the City of New York, Sees. 210,

211 and 212 of the General Municipal Law (Consolidated.

Laws of 1909, Chap. 29)? also apply? Both See. 52 of

the State Law and See. 211 of the General Muasicipal Law,

provides that ‘texclusive jurisdiction’’ is ceded-by the State

to the United States upon the filing of certified copies of:

the record or transfer with the Secretary o1 the State of

. New York. :

The stipulation: (R. 18) follows the language of See. 211

of thegGeneral Municipal Law and it appears therefrom

that such filing did not take place. until two months after

decedent's death. ;

Statutes relinquishing jurisdiction are strictly construed .

since it is of the greatest importance to o. both national and

state governments. oe

Larson v. South Diakeia, 278 U. S. 429, 73 L. Ed. 441.

* When land is:ceded by a State to the United States, the

extent of Federal jurisdiction sa daa upon the terms of

the act of cession.

Atkinson v. State Tax Commission, 62 P. (2nd) 13,

aff'd. 803 U.S. 20,82 L. Ed. (adv.) 440.

Silas Mason Co, 'v. Far Commission of Washington,

302 U.S. 186, 82 L.Ed: (adv.) 154, 159.

Ft. Leavenworth Ry. Co. v; Lowe, 114 U. 8. 525, 537.

Although appellant omits “any diseussion of this point,

it is well aware of its signifiean’e because at page 10 of its

oe : , t

brief, under sub. *F."" it SAYS:

.

e

P ws assiag =A Sn PN aE Oe, a es a. Sin’ pti ae as a ee ey ss les < Wee Pre re nf Bini

Bow ci Whaetesitnc PS MMR ELS OSS apn aA OSPR Pa OS ERS Eas PS yds Die aie HRMS nile ‘

“The decisions of the State Courts do not rest upon

the ground that exchisive jurisdiction of the enclave

7

? Appendix, p. 15,

-

. 5 .

_ had not, in fact, been ceded before the accident.and be-

fore the execution of appetlant’s contract with the’

United States, but are placed entirely upon the ground

that the State Statutes continued to apply after such —

cession, because the Congress had not ‘displaced’ it’’.

This observation is true as to the determination of The

Appellate Division, but is not so as to the decision of the

Trial Court (R. 122). : :

There is but one cenclusion however, that can be drawn

~ from the record and that is that the United States did not:

obtain exclusive jurisdiction over the enclave until after the

_aceident and more than one year after appellant: received

its contract from: the T reasury Department. :

- There is therefore no Federal question inv ‘oly ed authoriz-

ing review hy this: Honorable Court. ,

I]

There is no Substantial Federal Sinitnin Involved.

The Court of. Appeals did éertify that a Fe ‘deral question

Was necessarily passed uporti by it but that of course is not

hinding upon this Honorable Court.

Alexander v. — News, 273 N.Y. 511; certiorari

denied 301 U.S. 702, 81 L. Ed. 1357. oe

Honeyman v. Rind. 300 ey .S. 14, appeal dismissed

p02 U.S. 375. . *

Upon the trial the jury was waived and questions of law

and fact were submitted to the,Court (R. 114).

Appellant’s motion to dismiss was based upon the ground |

that the provisions of the Labor Law were not applicablé

to the place of the accident because they were repugnant to,

Article I, See, & ‘of the United States Constitution (R. 112 -

and 173).

; The Learned Trial Justice in de ciding i in appellee s fav or?

stated in part: (R. 122) /

.. Pie & j

‘The proximate cause ‘of the accident which oeca- 3

sioned decedent’s death was the failure of the defend- :

ant to thoroughly plank over the beams as _ required 3

by See, 241,.sub. 4 of the Labor Law’?.* © 2 a

: a

Whether this ¢onclusion was eihiad a because the 7

United States did or did not have jurisdiction, does: not g

appear. | é ;

_Itis apoetianh's s contention that the record supports the :

view that jurisdiction was in the State of New York at the

time. ’ : a

However, . from a Jegal ‘eauiiil, it is immaterial |

whether the St: ite. or the United States had’ jurisdiction. ;

because in ¢ither event the State: Labor Laws were e appli.

cable. 4

Such is the law as established by this Honorable Court.

and confirmed by the Act of Congress of Feb. Ist, 1928, 45

Stat. 54 (16 U.S. C. A. See. 457).4

1. Murray v. Joe Gerrick & Co., Inc., 291-0. S. 315:

—78.L. Fd. 821, ae,

2 ann Hotel Co. v. Fant, 278 U.S. 439..-

3. Vilas v. Manilla, 220 U. S. 345. :

$. Western Union Tel. Co. ¥. Chiles, 214 U.S. 274.

D. Barrett v. Palmer, 135 N. Y. 336, aff'd 162 U 8,399. se

6. Chicago, Rock Island, & Pac. R. R. Co.v. McGlinn,

\

j so9 < : ‘ PR ye Pose bes ae dash i

~ | a Wee F wet f SEs 5 = Diote UF wie Stawell 5 ois As bade 5 ein? saat 7 ae 1

Sigma [casgslle Bitoni ape nee SE Mook a ad ato ie ante: =

114.U. S. 542, 246. 4

1. Ft. Leavenworth Ry. Co. ’. ee W4ULS. 525, OP. |

: The unanimous affirmance of the Appellate Division of 4

the Supreme Court (R. 131), was likewise unanimously 4

affirmed by the Court of Appeals (220°N. Y. —, 20 N. EF. 2d -

1015). —_ 9 i

The Appellate Division .based its determination upon —

the case of Kaufman v. Hopper, 220 N.Y. 184. In that case,

| :* Appendix, p. L.

* Appendix, p. 16. _

€

Be api : ch ms

at page 187, the late Mr. Justice Cardozo, writing the opin-

' jon for the Court of Appeals stated :

| “‘The ¢ommon law and statues passed before the Act

of Cession remain in force in the ceded territory until

. , displaced by Congress (McCarthy Pachare Co., 105

- A. D: 436, aff’don gpinion below, 182 N/ Y, 505; Bar-

rett v. Palmer, 135 N. Y. 336), but oo statutes are of ©

no effect. This is now the settled rule. (Farley v.

Scherno, 208°N. Y. 269; Ft. Leavenworth R. R. Co. v.

* Lowe, 114 U.S. 525, 537 3 W. OU. Tel. Co. v. Chiles, 214

U.S. a6. ak : re

‘Barrett v. Pe Be 135 ) a A 336, was affirmed by this -

Court in 162 U. S. 399, upon the authority of the. oft cited °

‘case of Chicago, Rock Is land & Pacific RR. Co. v. - McGinn,

114 U.S. 542.

As was done in Barrett v. Palmer (supra), we respectfully :

quote from the learned-opinion of Mr. Justice Field in the

MeGlinn cane, at page 546:

‘ 2

“TIt.is a general rule of public law recognized antl

acted upon by the United States that whenever political

‘ jurisdiction and legislative power over any territory

are transferred from one nation or sovereign to an-

other, the municipal laws of the country, 7. e., the laws

which are intended for the protection of private rights, .

continue in force until abrogated by the new govern- °

- ment or sovereign.”’ -

~ The Labor Law clearly°falls within this definition. Z

Steele v. Halligan, 229 Fed. 1011 (W ash.).

It was intended for the protection of sasitlinins: It de-

fines the obligations of a general contractor to all workmen

engaged in the construction of buildings within the State.

Its violation may be shown as evidence of negligence in

an action against a contractor who fails to-comply there-.

° 8 \ | ae

with. “Such. is «the construction which has been ee

thereon by the N ,ew York State courts. é

Drummond v. Norton, 156 A. D. 126, aff’d 213 N. Y. 670;

Bohnhoff v. Fische r, 210 N. Y. 172.

This Court: will not interfere with a ‘State's construction

of its own statutes. :

Coombs v. Getz, 285 USS. 434;. s

Price ve Illinois, 238 U. S. 446;

Brinke aan Faris Trust & Savings Co.v. Hil, 281 U.S.

673. - . eee

‘Even if it be- assumed that ‘‘exclusive jurisdiction’ ’ was

vested in the U nited States at the time of the accident

the provisions of the: State Labor Law would nevertheless

apply, since they were in force at the time of the cession

and were never displaced by Congress. Therefore no Fed-

eral question of substance is involved.

~~ Any doubt about the applic: ition of the existing laws. of

the State to the enclave, was removed by the Act of Feb-

ruary Ist, 1988, 45 Stat. 54 (16 U.S. C,. A. B. 457).

Appellee’s, cause of action is derived from the Consoli-

dated Laws of 1920, Chap. 919, See. 130 (Decedent's Estate

Law, See, 130)... In so far as it Ts relevant, it provides:

“The * * © administrator duly appointed in -

-this State (N.Y. )} * *-* of a decedent who has left

him ° °°: surviving; a -° *. ° wife * °*.°

may- maintain! an action to’ recover damages for a

wrong fact, neglect or default, by which the decedent’s

death. was caused, against a natural person, who, or a

corporation which, would have been liable to an action

in favor of a decedent by reason thereof if death had

not ensued Pe eee ge

.

No question is raised by ayMellant as to the validity, or

applieation of: this statute, tor it falls clearly within the eon-

‘ e

.

+

» Appendix, p. 16.

; i

9

tectpdation ofthe Act of Fesless Ist, 1928 (Murray v

Joe Gerrick & Co., Inc., 291 U. 8. 315). ‘

The error.assigned is that Sec. 241, sub. 4, of the Labor

Law," was erroneously applied. Appellant does not ques-*

tion its validity but rather the propriety of its application to

the ceded property over which it claims. the United States

had “exclusive jurisdiction’’.

-This provision of the Labor Law does not dechte a cause

of action. It prescribes a protective measure, the violation

of which constitutes some evidence of negligence, in an

_ action for personal injuries or as in the instant dase, an

Ks action for wrongful death under Sec. 130 of the Decedent's

. Kstate Law. ;

Schmidt v. Merchants Cnpaen: Transp. C o., 270 N. ‘YY.

287.

ns

thie

3.

As such it became part of the law of negligence in existence

"in the enclave at the time of the cession and continued in

_ force and effect since Congress failed to enact any law to .

supersede it. ae

‘Steele v. Halligan, 229 Fed: 1011.

SOF OS | ete BP, 2 AD © Ne wa os ie old * Ce Bs

Appellant also contends that as applied | in the lata.

case, the Labor Law imposed a burden upon the work which

it was performing for the U nited States i in that the enforce-

ment thereof would constitute an interference witb the

exercise by the Federal Government. of ‘its functions.

That contention, as we see it, can only refer to the re-

quirement of the Labor Law that open steel work be thor-

oughly planked over (See. 241, subd. 4).7

Such provision is not directed to the United States, its

property or officers. ' It is not directed-to an instrumentality

© of the government. Appellant is an independent contractor.

Tm ae patted FS RE PPR CEN IRE BS niin LE EET BL 8 OS NSB RN

" Appendix, pe 1A,

* Appendix, p. 15

/

10

“9

The provisions of the Labor Law certainly do not restrict

the operation or conduct of a post office. ;

At most, the, law prescribes a method of construgtion

which might inerease the cost to the contractor, if complied

therew ith, and-so reduce his profit. That it might indirectly

increase the cost to the United States is the only possible

burden we can see. . ~

That such a contention is without merit was doaie’ in

Alward v¥. Johnson, 282 U.S. 509, 75 L. Ed. 496. This view

was recently approved by this Coart in James v. Dravo Con-

-tracting Co., 302 U.S. 134, 82 L: Ed. 155, whetein Mr. Chief

Justice Hughes, im discussing the Alward ease, said in sub-

stanee; that the argument that the cost to the Fedéral Gov-

ernment.of the carriage of mails might be increased, did not

impress the Court as militating against the law’s validity.

The rejection of such contention hy the Court below wa

clearly intaecordance with these authorities.

Whether State officers could’ compel compliance wit the

Labor Law provisions is not a question before us as we are

concerned solely with the civil aspects of tlre law.

It follows that even if it be — that the United States

did have ‘‘exelusive jurisdiction’’ over the ceded property,

the labor law was--nevertheless properly held capplicable

since in no way wags it repugnant to the Federal Constitt-

tion. The absence of a substantial Federal question there-

fore requires a dismissal.

‘Ralph Solleti & Sons, Construction Co, v. Common-

wealth of Virginia, appeal dismissed, April 2; 1934.

292 F.S. 599; 78 L. Ed. 1463, for want of a substantial

Federal question. (As in the instant case the appel-

lant therein urged that the State statute was of no

effect beeause it sought to extend the state's juris:

diction ever property where the Federal-government

had exclusive legislative jurisdiction, pursuant to

.Articlé 1, Sec. 8, Clause 17, U.S. Constitution.)

e

y]

‘4 of the Labor Law.

section.

11

Se aboard Air Line R. Co. v. Watens, 287 U. S. 86, 17

L. Ed. 180. :

Roe v. Kansas, 278 U. 8. 191, 73 L. Ed. 259.

‘ e

7 | III. .

Answering Appellant’s Assignment of Errors. .

In discussing the jurisdiction of this Honorable Court to

hear’ this appeal, we have answered appellant’s assignment

-of errors numbered 1, 2, and 3 since they concern themselves —

with the application of the Labor Law to the enclave Where

decedentmet his death.

‘In item 4, appellant contends that the State Court erred

in holding that appellant violated Section 241, sub. 4 of the.

Labor Law. That issue was one of fact*for the trial court

“(the jury having been waived) and this Honorable Court.

3

will not review the weight of evidence. -

Etna Life Ins. Co. v. Dunken,.266 U.S. 389, 394; 69

‘L. Ed. 342, 347.

Fiske v. Kansas. 274 U. - $80, 385, 71 L. Ea. 1108, .

‘1110. . |

“eAs to item 5, appellant charges error in the holding that ,

decedent's death was éaused by a violation of Sec. 241, sub.

This, too, was one of the isgnes of fact for the trial court

and involved the construction and interpretation of the

As we have stated abov e, this Mesesshle C ourt will not

interfere with a State Court’s construction ' of its own

statute.

Coombs vy. Getz, 285 U. S. #34. 7, Se ,

Price v. Illinois, 238 U.S. 446. | st

Brinkerhoff-Faris Trust & Savings Co. v. Hill, (281.

4 US. a 680, 74 L, Ed. 1107.

12

Its item ‘6 eoncerns.the exclusion from tvitlence of its

OE xhibit ‘*A”’ for identific: ition, part of its contract with the:

Treasury Department (B. 12h)... - ;

Appe ant contencs that. by this Contract the Treasury

“Sie eel re ‘lieved it'from complyi ing with the Labor Law

provisions,

—

—Tnder the ( ‘onstitution, Article I, Seetion 8, Clause 1, 7, ‘

17,18 only Congress is wested with the power to enact laws.

Adtiittedly , its only relevant enactment: was that of F eb-

"- pnary 1,.1928 (16 U. S.GrA. 457), 45 Stat. 54,

To. accept: appellant's argument, would mean that. the

Treasury Department. by contraet or regulation could re-

_move-the legal effect of an Act of C OngTESs,

“The executive departments are neither judicial nor quasi. ;

_ ial-in character and, their actions, _ while dinding on

‘ach other, are net binding on the C our ts,

‘t.., Awe wv U, &., 1 Ch, of ¢ ‘laims, 233, reversed on other -

_/. greunds, US. vy. Alire, 6 W all. 573, 18 1. Ed. 947.

The powe r conferred upon executive heads of such depart.

ments, is ‘administrativ e, not legislative.

Us: v. George, 228 U. S. 14, a7, Ed. 7m.

‘Regulations by an executive, wale be consistent with law.

They may not be extended so as to alter, aniend or défeat a

daw already enacted by Congress. Where rights, duties and

ob lisations are defined by statufe, they cannot be taken

away or abridged by the regulations - ofan executive |

department, aes ead

Campbl vi U.S, 107 U.S. 407, 27 L. Ed. 592

-———. Morrill y, Aenes, 106 UL 8.466, 27 L. Ed. 267.

The legislative power vested in Congress eannot be abdi-

cated or transferred to others.

Panama Refining Co. v. Ryan, 558. Ct. 241.

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13

U.S. ¥. Tishman, 99 F. (2d) 951, certiorari denied 59

S. Ct. 485. ot Re eerie

Curran. Wallace, 59 S. Ct. 379.

-

-

The Treasury Department was without authority to grant

such immunity to appellant, even if it intended to do so. -

Panama Refining Co. v. Ryau,5d 8. Ct. 241.

Sawyer v.ULS., WF. (2d) 416, 420.

Particularly is this true when the contract a deaceitne

is in conflict with: expr ‘ess statutory provision.

Maryland Casualty Co.v.U.S.,2 251 U. S. 342, $49,

.- Besides the fact that decedent was not ener by a contract

‘to which he was not a party, it follows from the foregoing

that the Treasury Department was without authority to

grant any immunity to appellant from the iboats of the

Labor Law. Oe,

Even if it were so empower red there is nothing éontalacd

in the contract from which it can tea asonably be said it in-

tended to do so.

The proffered sections insofar as relevant are:

See. 21. Protection of Public and Property (R. 121);

‘The contractor shail * * * comply with all

Municipal ordinances: which apply to the use of side-

walks and streets or alleys for building operati-ns, but

such ordinances do not apply inside of the lot lines. He

shall be held responsible for, any damage or injury to

pefsons or property which may occur as a result of his

fault or negligence in the prosecution of the work.’’

Sec. 22.. Pormitsc ; . Pe

“The contractor shall ‘ath additional expense to

the Government obtain all required licenses, permits,’

‘ete. This applies to work outside the lot lines, the use

of streets and sidew alks, the protection of public and

ae . 14

- __traffic, connections to utility service lines, ete. State or

Municipal Building Regulations do not apply to, work

inside the Government’s lot.lines,*’

A reasonable interpretation of See. 2h is that those

Municipal Ordinances which applied to the use of sidewalks

“and streets or alleys for building operations, were not to

apply inside of the lot lines.

Sec. ve 2, as its heading indicates, refers to permit require

nents outside the lot lines in the use of streets and side

walks, ete. State or: ‘Municipal Building regulations re.

quiring permits inside the Lot tines were referred to sind

not the Labor Law “provisions.

It i is thus ev ident that not only was the Treasury Depait:

ment without power to grant immunity to appellant fre '

the habor Law provisions but in fact, it did not do se,

‘Appellee concludes by respectfully urging that because ot °

call the feregoing, this Appeal be dismissed and the aes

ment of the Court below be affirmed. ;

Deming v. Carlisle ee Co., 226 US. 102, 57 1.

- 140,

©” Milheim v. Moffat Tunnel Imp. Dist., 262 U.S. TW 67

L. Hd. 1194.

va

Leo Fixier,.

Counsel for Appell ”

#) .

NS lea o> 4

Se

15

= APPENDIX.

s+ : ray

Lanok Law or THE Strate or New York, Section 241, sub-

division 4 (Consolidated Laws of New York, Chapter 31,

Section 241). °.

‘PROTECTION OF, EMPLOYEES ON BUIL LD:

ING CONSTRUCTION OR DEMOLITION WORK.

~All contractors and owners, when constructing or de-

molishing buildings, shall comply’ with the following

requirements: * %. *° ?

4. If the floor beains are of tron or steel, the entire tier

_of iron or steel beams on which the structural iron or

steel work is being erected shall be thoroughiy planked

over to net Jess'than six feet beyond such beams, except

| spaices reasonably required for proper construction of

the iron or-steel work, for raising. or lowering of ma-

terial or for stairwitys: and elevator shafts designated

hy the plans and spee ‘ifieations.’

Gbsena. Me NICIPAL ee OF THE STATE oF NEW York, See-

tion QUT AU ‘ontsolidate d Laws of 1909, Chapter 29).

“Section 21 CER TIFIE D COPY OF TRANSFER TO

BE FILED, Whenever the United States, by any agent

authorized under the hand and seal of any }ead of an

executive departinent of the government of the United

States, shal cause to be filed and recorded in the office

of the seeretary of state of this state, cert fied copies of

the record or transfer to the Unjted States of any such

pieces of land which had been acquired | by the United

States for the purposes specified in section two hundred

and ten of this article, together*with maps and descrip-

tions of such Jands by metes and bounds, exclusive juris-

diction, except as provided in section two hundred and

twelve, is thereupon ceded to the United States over

“the Ignds so described,.during the time that the United

- States shall be or remain the owner thereof’’.

16

Acr or Concress of Frepruary Ist, 1928, 45 Srar: 54° (16

“U.S. C.A., Section 457).

‘Action for dvath or personal injury within national

park or other place under jurisdiction of United States;

application of state law." In the case of the death of

any person by the neglect or wrongful’ act of another

Withiaa a national park or other place subject to the ex-

clusive jurisdiction of the United States, within. the

exterior boundaries of any state, such wight of action

shall exist as though the place: were under the juris-

diction of the state within whose exterior boundaries

such place may be; * * °.’’

(2928)