Appellees Brief — James Stewart & Co. v. Sadrakula

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| CHARLES ELE,

: Supreme Court of the Bite States

OcTUBER TERM, 1939 °

No. 251

>

JAMES Stewart & Co., INc.,

} | Appellant,

| —against—

KATHERINE SADRAKULA, as Administratrix of the Goods,

(hattels and Credits which-.were of NICHOLAS SARGERAS,

, Deceased, ae

Appellee.

—~+

APPEAL FROM THE SUPREME COURT OF THE STATE OF

» Naw York. - :

APPELLEE'S BRIEF _

|

. LEO .FIXLER,

Counsel for Appellee.

JAN 11 i340.:

° ae >.

“I sal DEX

SUBJECT. INDEX

Pes |

= ° ‘PAGE

|. Préliminary Statement ...... soeavedbbaniesenns-

2. Point One: $5, ENR 5 Gee RPS qquasdgvadssexveew. ©

The U hited States Supreme © ourt is- without

jurisdic tion.

.

Point Two: .......- aN ° a 18

=

No Federal question of substance is involved.

1. Point Three: .... 27

‘

osveeerereereeeereree eee vree ee ee eevee _

No Federal question of substance is presented —

ly the contention that (assigmmenit of error —

. 6) the trial Court erred in excluding Defen- °

—dant’s Exhibit “A° for identification.

TABLE OF CASES AND AUTHORITIES

‘CASES_ To

lexunder v. Moyietonews, “BOLULS. 702 stetvend oA: 17

ward v. Johnson, 282 00S 509 eiseeace eeerver 24

Anderson v. Chieage, 12 - b. 578. 168 N. W. 196 34

Arlington v,. Fant, 278 Ae PR” Tireat hy Sea aaa 10, 19, 20

paras teh ve State Tax, soit “s o wrree , ‘ 9

Baton & Sons v. Martin, 305 . 8,380. .......5.6: ie eae

y, Baltimore Ship Bldg. & Dry Doe KC OY. ital

mY 19%: BAIS ....7%.... PRR ae ale Aa ee 23

8 Barrett vPalmer, 135 N.Y. 386 00... 00. oe, 19

4 Brailford let. Co. +. Clapper, 286 UL S. do... Sf 8

3 ‘ :

b

o Z ii “3

: \

ae Y PAGE

Campbell v. United States, 107 0, met ....: Kee. ©: $1

: ‘Casement v. Brown, 148°UL 8. 615-0005. whe <eenes ie

Woe Casey v.. Bryee, 59 So, 211,173 Ala. 458 0.....0.. if a

“= Chicago, Rock Is. & Pa. R. v. McGilinn, ala. BES

De Se ayhemee er rere A Uh ee ATOR on Fi; 26...

t ey : 33.34

is a = New “York vy: Centfal’8 Savings. ers “806 ois

UL S,.661 ME Eads Sept OR IRAE, EG tk Po ONT 16

Collis vy. Vonmiec Park, 304 U.S _bAN wiwalee ced 9, 11.

Curran-v. W allaces 906 U;B. 1 0... cece cpp eens AB > 31

Parley v. elas 208: Se eeinetes ~~: 29

_ Pidélity & Deposit Co. vy Penn., 20 U. 8.318 vee, | gf A

Ft, Leavenworth Ry Co. v. Law e, Ti U. B. Ses soe 10), m1

Fox F ilm Corp. x. wee’ wae s 207-0. eS Rei pie

\ : seed j &

| Genér #1 Construction Co. &:: ‘ischer, 295 U.S. 715 oe

(Fromer v. Btandard Dredging, 224 UL 8.362 ....5° / 24

Group 3 No.1 Oil Corp. v. Bass, 283 ULS. 279.00... 85

Herbert v: Louisiana, 212. 7. BD vtexuveess $s dt 3

‘Honey, man V. Hanan, 200.0, Eins sk ea ed 2 See AS ,1

‘James v. b “avo Construction €o., + 302 v. = » 9.10, 2i,

Bee i >4

~ Kanfmat vid lopper, 220) B. Y: wees. . 6 a He 6 ce 16,18, 19,

Seis | 26

* Live'OQak w ater Users Asw'n v. RR Comm. had Cal.,,

2. 29EU. te iewnee keer: My eer ree ioc,

s oa a :

s

wd ~

- s, ?

s ~_ ‘

am A sie 7 f

Ree ar Tae Marae Sit

PO ee ee

Ne sie i et ee

SS ee ee eb, eee ee ber

Y

3 oe : s

¥ . iii

| bee. ee

, Re , eS . PAGE

McCarthy + Packard. Co” 105 5 App. Div. 436, affd,

oa Perri rrr errr ee Giwnstdeaenns 19

. Marylaid Cas. ‘Co, v. U. 8., 251 U- SBE i

, Medealf & Eddy y “Mitchel 269.U. 8.514... 6. 26, 38

: Morrell vy. weg 106-U, Os ecsccec wre rrre . 31

Murray #. Jo Gerrick Pitt g., 291 U8. 315.22... 9, 1,19,

Ne ;: | co 1 SR

: | a " .. 25, 30

i : , - i

: ~ , Palmer vy. Barrett, 162°U. 8. 399 .....;... SEER EP 19, 20.

, Panania Refining € OV. yas 293-U28. $88 .6..5. 2° 31,42

+ Patterson 'y. State of ——- 294 U: 8. 600.;.;.. i.

Pennington vy. Gibson, 14 UL S. (I. ed) 847 Sanaa he

| People of Sti ite of N. Y. v. . endome Service Inc.,

| | 1N.Y.S. (2nd) 183 (not oftic ially reported) | "12

Portland, RAR. & L. & PL Co. v. R.R, Comm., 229

| OB, Site icc ies re eS ee Vales de ices cle aie

| Purcell v. X. YY Central R.R., 296 U8 CM i AG

Si, alph sole Ate ‘omin. -— Va., 292 U.S. 599.0... 22, 23

Ryan v. State, OC OE . 6kisa5 sce. heeee ee a2

k Silas Mason Co, vy. Tax Comm, of Wash., 302 -U. - © ..-%

ie POR ietee wun es Seeeedaves eeedin eds Husks hens 9,10, 21

So. West Bell Tel. Co. y. “State of Oklahoma, or

US ps cetveegendate@icivresends $4 reere ‘ 13

Skelly vN. Y. EL RR. Co, 7 Mise. 88, ~

We Re EE aN hk ork cei cae Chates ; : 6

_ State V, Gramelspacher, 1 126 ney 39, 26 N. E. 81 e 4 £5

Steele y ) HalligQ. 2 229 F: 1011 erenecee ee ‘edecee GE os ™.

Surple Sx Trading 7, Cooke, 28] SW. Ge casts ee ‘10

oak) “

— > ae a

iv

Pilih cot Ssh

© pate

Thompsafi % Union Pac. Ry, an WME OSE ossces: > a4

TRinity Parnis Constfaction Co. vy. Grosjean, 291 a

200 eee Cy Se a

: See

United States v. Gieorge, 228 U8. 415.2... Prrere. 31.

_ United States v. Gizuetta, 281 6 5 10, 19,21

Ses li t

ie eae ee

eae

Naa aad aD

-

pic et te peda SSS Seleye

: Vilas v. Manilla, 220 C. "345... "Ge jAceee ous s “$9; 21,33

w ard . ‘Board of Co. € omnt. be 253 U. Es ‘ 162°

Western Union Tel. Co. vy. lena U . 8, 274 .. 19, 21

Whitney v. California, 274 U.S. 857 .0......... m 3° 3

Williams v¥. Arlington Hotel, 22 F. (2nd) 669.....° 0 © 218

2G RR

Prior Decisions of Case on Appeal

Sidrakula v. James Stewart & Co. (Appellant's one 4

Appendix’ page 245 ie ie |

‘Sadrakula y. James Stewart &C 0.; 24 N. ¥. App: y

I biv. 92 » ( Appellant's Appendix page 25). ;

Sadridkiila v. James Stewart & Co., 280 N.Y. (Adv. os

1) 157, no ‘opinion, Record 133. : 5 he

Sadrakula v: James Stewart & Co., “Amend. -of oh

— Remittitur 4/21/39 Rebord 134. 4

STATUTES —

oe ee fF

Act of June 25, ren 65, 49 Stat. 1938, Title 40, U. _

- Coie Section : 200 1 Appendix, page 36)........ 20, 30. 4

Aet of February 1, 1928, 45 St it IG ULS. CAS. 3

Section 457) 4 Appendix, page DN eck cekenaes s: 19,2 ‘os

re , eae me ‘25, 26, 20. . a o-

: | 4 ; : ; ‘ Qn | ~

i

¥ ; a

" * PAGE |

Constitation. of the tnited States, Article I, Sec. 7 4

tion 8, CL. 17 | Appenat's appendix, page 24). ae 10, 13, 4

ee ek be 20,23, 31 iy a

40 U. BC. AL, Section 255 ( Appellant's appends, oe =

4 jagk sy SNS Sete AS CORO Pade SED 14°:

Decedent Rstate, Law of New York, Section 130 :

A ApPendix, . CO 2 - 21, 26

' General Municipal Law of New York, Sections 210, .

"3H, 232 Appellant ‘scalppendix, page 20) ....-. 5-13 ine. ;

Lather Law of New York. Section 241, Subdivision 3 ie ‘

1 Appellant's appendix, page |, erry Tee. Pre

ii: cies pogit 29> SSS

, 23, 25, 26,

' . ‘ : 27

New York State Law, Sections 50 to 55, inclusive “ — . Bs

i Appejlant’s appendix page 26) ......, ereses OLB ine. :

N.Y. State, 1 eal Law, Section 1275 ... EY. am 30

‘OTHER AUTHORITIES

( ‘ongressional Record, V olume 69, Part 2 » Dae 678,

NUS ii veceretertesseeet Rmew ewes $i Pree re . 22

10 Op: Atty. Gen. 34 (1861) Oy Peer repr rer / 12 zs

BS Op. Atty. Gem. 341 (1935) Peau as ewkes = ¢2 ‘ 12, 21

$6 Op. Attv. Gen. 86 (1929) .......... ay ee pees 11

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yi ei Agta Ci SRI Da hi i aca canines cee

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Saeed

Supreme Court at ‘the: United Btates

- OCTOBER TERM, 19:59

. — ‘

7 JAMES STEWART & CO., INC.,

; | & i , Gd

aorta “Appellant,

; ; —against—

\

KATHERINE SADRAKULA, as .Administratrix of ‘the Goods,

ry

2

.

( ‘hattels and ¢ ‘redits which were of NICHOLAS SADRAKULA,

Deceased... : ees ;

ia

APPEAL FROM THE SU PREME COU RT OF THE STATE OF

: NEW YorkK. | a Gao

ee 4 ”

APPELLEE’S BRIEF c

P ey P ¢

Preliminary Statement. Pe

Appellee’ is the widow of one, Niclrolas Sadrakula, who

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

by him that day while employed as a rigger by the United.

Hoisting Co. Inc. in ‘connection with the construction of

a;bost office. building in the hi itv of New York.

\ppellant, al corporation or yanized yader the laws of the

State of New York, as general contrac oe an agree ment

with the Treasury Departinents sof the U nited States, unéder-

ok to constructthis building and the United Hoisting Col,

cIne, Was acting as subcontractor, for the installation of

certain hoisting equipment (plaintiffs Exhibit 3, -R& Hs,

119, 120). ,

oO

2

‘The complaint (RS) charged appellant with negligence

in failing to comply with the provisions of.the New York

State Labar Law*.« The answer (R. 2, generally denied

fe allegations of the complaint and alleged the ¢ ontr ibuters

neghigenc e of the decedent as a separage defense. Pe

At the trial appellant rested” at the close of re sponideier™

proof (R. 1L1). The jury was waived and all questions 6! a

_fact and law were submitted to the ¢ ‘et y Sete | & : a

Throughout this litigation aciret “conceded that it did .

l

not “plank over” the “bay” at which

ecedent was working

-on the day of his death but. sought to escape liability hy

claiming that the provisions of the—L thor “Law were ir

——— applicable because ‘the property where the: agcident occur red

"was under the exe Misive jurisdiction of the Federal Govertt

ment (R. 99). ata

‘The. learned © triat Fustice dec ided - (R. 123) that “the

proximate cause. of the accident Which occasioned decedent's

death was the failure of defendant to thoroughly plank ove?

the beams as required by Section 241, Subdivision 4, oe lige’.

Labor Law” ie Be sce a a

—y, Se

. Upon aed, the New York Appellate Division [iBecond

Suesmaeth waaiadels affirmed, stating in part: Q-

“J en ag a:

“The evidence adequately established that the. proximate : 2

cause of the degede nt’s teat was defendant's failure :

to plank over the steel beams inthe w ester area: of the

« ‘bay’ as required by Section 241, Subdivision 4 a am

Labor Law’ (Ro1 31 }. Bu :

7s Court of Appesia unanimously ivued the deter mimi :

<2 ion of the Appellate Division without opinion. iR. 1: 33 ae My. 3

- These deter Ininations obviate the nec essity of restating thie a

7 facts and appellant has w ixelys abandoned the errors assigred =

ei numbered 4 and 5-since they concern themselves With the. = ‘

i : x3

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* Appellant's Appendix, p. 23.

¢!

ee ee

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De

# is. repugn

.

“ti is and ie construction of the State ‘Labor Law, neither

‘questéon being reviewable by this Honorable ¢ ‘ourt.

Herbert Vv. Louisiana; 272.UL 8. 312;

Bacon & Sons V. Martin, 3805.0. 8. 386;

Brit wage R. RAL. P. Co: \ :, R. R. Comm. 19 aoe

v. 34 MT; - a.

Whitue WN. ee? oy Slate of Cal., 274 U.S 357.

Appedlant’s application | amengtythe Qemittitur Was |

erated and ‘the | Court of ‘pei on April, + zi, 1939. ial

————

a . ~~.

“A question under the® ‘Federal Constitution was: pre

sented and necessarily passed upon by thjs Court: The

appellant’s contention that Section 241, Rybdvision 4

of the Rabor. Law of the State,of New York * in so’ =

-. far as the said law is construed torapply ta the construc:

tion and erection ef a post Stlice building eee to

tract with the Treasury. Departinent-of the United

Sta fos upon tandSatthin the . the. exterior boundaries of the

‘state 8 shes York bat..w hich Gs within the exclusive

: jurisdiction of thé’ United States under Article \I, Sec:

-tion 8, Clause 17 of the ¢ ‘onstitution of the United States;

shin to the Constitution and Laws of the United

States in that: it offends,Article I, Section & of ag Con-

stitution of the United Ktates and Title 40, U. S. Code,

Sections 285, 34] and 342 * * * and is invalid when so °

applied. ar eo.

’

This Court held that the. atovessia Labor Law of the .

State of New York is valid and not repugnant to any pro-

Vision of the Constitution: of, the United States” (R.

134, 135).

If tis ic able C ‘Ourt t de vey to ee this cause, then

review ‘should jhe limited to the precise Federal question

feats : a ‘* ‘

Ex

enol

&

je ..

G

a . : : . me ‘4 Pa ea

raised by the opeeilont in the trial Court, to wit eR. YS, Oy

“That Section 241 of the Labor Law of thes State of New

York has no capplicccion, for the Feason that the place of

‘the accident, ‘both the building under construction and the.

land upon which it was being ‘constructed, ‘were within the

exclusive jurisdiction of the United States by Virthe of+the

; United States Constitution. Article i, Section 8, Clause 17*

‘O -that under the peat exclusive jurisdiction over the place

of the. accident had beet ceded to the U mited States: more. -

than about four years prior to accide ‘nt and.that for that

reason no statute sa the constrnetion | of the build:

_ ing, such as the Labor Law Pere, would appky.” |

And again, at page 112. folio 336, after resting at ‘the end. -

of appellee’secase, “TZ renew: the Anotion for the direction. of:

a verdict in favor of defendant on the <pecific _sround that?

. Section 241, Subdivision 4 of the Laboy Law is not applic able

. to the place of the accident and ‘that applic ation thereof Wy

the place of the avcident ix in-violation of Article I, Section

S of the United States ( ‘onstitution.” ° ;

_ In the thirnscript of F tit wocondl (R. 142 ), in addition to

thé specific Fedéral question referred to, ADO added. as

an assignment of error, wifhout: authority, that the applic a

tion of- the Labor Law: violated U. 8. Code, Title 40, Bees

tions 285, B41, 342 (assignment, 3). 7

Since deciXion upon appellee's motion to dismiss this

appeal has heen post poned until oral argument, we respect:

fully refer to that question in our Point I. rae ee

:. * Appellant's Brief, Appendix p. 24.

: : j 7% -

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“POINT L

This Court is without jurisdiction to hear

this appeal because it affifmatively appears

from the record that at the time of the accident

the United States had not accepted: exclusive

jurisdiction. There is therefore no Federal

question involved. d. ee ters

mk 5 = ‘

e t4 » P =

Prick to the trial of this case, and on November Sth, reed

i R. 16). in order to.sav¥e time and expense in procuring 4

tified copies, of records filed by the United States An

aitice of the Secretary of the State, the /parties ent ysl into

> writte he stipulation, dated November 1, 1937, because ob-

tiously these facts were indisputable (R. 17,18).

Before preparing that stipulation, appellee’ wru'e to the

Secretary of the State of. New York to aepstain the -exact

information to be incorporated in that stipulation. One

~ October 26, 1937, a communjcation wis received from that

“olfice in which it was stated-that jufisdiction. was acquired

by the United: States ‘under the provision of Section 211" of

_ the Genera Municipal Law and that the documents listed )

therein Were filed thereunder with the Secretary of State on

December 26, 1935. exe, “itt eae

Not only was this information chee ked by counsel -of ree-

ord for s. appelient, but on; November 1, 1937 ‘the stipulation

' R. 17, 18) was, prepared, following the exact language of ©

Sevtion 211 of the General Municipal Law. Ww hy appellant te

“now asserts that the provisions of the | State Taw apply

rather, than those of Section 211* of the General Municipal

lew, we do not understand, but it°is obvious that it wonld-

—* Appe lant’ s Brier. Appendix p. 26.

a

“never: have signed the stipulation us it exists if such asser-

_ tion hadeany amerit. oe.

>We assume that « cunsel. in writing his brief at this late

date, overlooked these facts as. well) as others which We pro-

“pose to bring to his attention.

Iteis asserted that “as there is no ev idenc ‘e that the Tana

herein involved is not over two acres in area, the General

ou Munic ipal. Law does not appiy. > Hence, the State Law gv hich

contains: no. such limitation (Section 50)*- is ‘alone atppli-

cable” (appellant's brief, p. 10). But counsel again over looks

the language of ‘the stipulation (ROIS) Ww hie h describes ‘the

land ‘as bounded “on the North’ by Barclay Street, orf tie

.East by. Chare h Street, on the South by V esey Sfreetwamd on

the West by, W ext Broadway”, . This stipulation wi as before

the Supreme Cc ‘ourt which presides in the City of New York

and as part of the evidence before. it, it was privilegéd to

take judicial notice of the “size of this plot and appellafit

would not have there asserted the frivelous argument that

there’ is no’ evidence that the land comprised’ ‘Tens than twe

acres. % . a

Skelly v. NOY. El ROR, 7 Mise. 88, aff'd, 148'N, Y.

747. Se athe te

eo &

“if, uae

In this stipulation it appears that the United States

obtained title by private purchase of the Plots within this »

one square block area in New York County. Deeds thereto «

were on file in the office of the Register of that County.

State Courts must take judicial notice of matters. of ‘public

record and the facts disclosed by such record are conclusive.

‘ Hea

8 Casey v. Bryce, 55 80.211, 173 Ala. 453.

a

WO el are me

* Appeliatt’s Brief. Appendix p. 26.

v4

This, rule. not only covers: the information as tothe size —

of the “ene lave” but also the public records and their con-

tents in the office of the Secretary of State that filing of the

“Title Papers” as expressed in the stipulation, was made’

pursuant to Section’ ae of the General M unicipal Law.

It is strange, that appellant waits until this Iate date to

give the stipulation an unwarranted interpretation. °

Since these matters were questions” of fact’ for. the trial ©

_Court-and subject to its judicial notice, they are likewi ise

iudtters to be judi¢ially noticed: by this C ‘ourt. é

“A higher Court 6n appeal will take judicial cognizance e of

5.6

“any mutter of whic ‘h the Court of original: jurisdic tion might

dake notice” 15 RG. bs. 10633. Section 6 (Citing Pennington |

v. Gibson, 16 How, 65.14 U.S. (1. Ed.) S47). b . i

Appellant’ i is. alko in érror in stating that “appellee did.

hot question that the U nited States had exclusive , jurisdic-

tion” (appellant's, brief, p. 8). “That point was raised in a-

trial memor andunt submitted to the trial Court and through-

out subsequent proc ceedings appellee ‘consistently contended:

that no F ederal question was involved. .

Appellant may contend, that the records of the See retary.

of State are not part of the transcript, and in this it. would

he technic ‘ally cor rect but ‘for the fact that the ifets of. the

“Treasure Department in filing documents in. pursuance of .

daw, iv nd the contents, thertof, are judicially. known hy the

Courts of the State as well as’ ‘this Court sitting. as an Ap.

pellate Tribunal, erie ;

Ntaté 7 Gramelspacher, 126 Ind. 398,26 N.S],

‘ae R. CL, 1063, Section 6. ,

Ve next consider appellant’ s contention that jurisdiction e

7 Wits transferréd “proprio rigore” by virtue of the Federal

(: onstitution and not through the consent’ statutes oF the =

State. : ’ Eales

+ Api ce

° c aes ae ee

: pone eee - = +

pee

“The: ‘Bnitea States-acquired title to this property, wholly

within the © ity of New ‘York, by purchase at private sale

‘in 1931, asa site for anew post office and office: building.

At the time there were two distinct State acts under Which

exclusive. jurisdiction could be transferred to the United

: ‘States. ‘State Law. Sections 52 to 55 inclusive.* and General

, Municipal Law, ‘Sections : 211, 212.4 Under the State Law

(Article 4, € ‘onsolidated’ Laws. of New York, € hapter 5 OT, as

“amended ), ‘New York State consented to such. purchase

under.:‘Section 50.* . Exclusive jurisdiction: was s available fo

aD

the U nited Btates under Section 52 ne:

ao a

(a) fiting and rec ‘ording of certified copies of: the record

or transfer together with maps and plans and a

certificate from the United States Attorney Generai

that title was clear;and ©

*

. § * ; bg : co ; ; ria P ; =

(hy. the- Governor was then authorized to execute a deed

or release in duplicate ceding jurisdiction to the.

os United States if the laiter requested same.

‘Under Section 55, one of the «deeds-or releases must bi

delivered to the agent of the. x nited States, the other filed

and: recorded in the oltic eof the S Secretary of State of New

~York and “said” deed or ‘release’ shall become valid and

effective only upon such filing and rec ording in’ said ‘etiice.”*)

~ Adinittedly, no vertific ate, as. previded for in the State

‘Law. Section 55, “Was ever issued by the Governor and 10

attempt was made by the United States to otherwise comply

- with its Provisions.

.

~ bs . °

. /

™ Seeadinall s Brief, » Apipe dix” 1. 26. : Me

+ Appellant's brief, Appendix p. 25.

€

1’;

: Won ° > j ;

Afy cas “appellant contends, the State Law applied, even?

then only consent to the pure hase was effective under Section

30, since nothing was, done by the United States to obtain |

| . exe ‘Jusive, jurisdiction, as pr escribed by Sections 52 to 55 in-

_ “elusive and therefore, jurisdiction to the present day would

remain. with the State of New York. However, this absurd.

situation dees not exist bee ause the United States net’ only

obtained consent under Section 210 of the General Municipal

Law, but calso- accepted exclusive jurisdiction by complying

with Section 211.0n Dec ember 26,1935 and the language of.

the stipulation (R. 17, 18) precludes any other conclusion.

Dee edent met his death on October: 24, 1935 asa result of

ape ‘Mant’ s negligence on that day in failing to. comply with

the, State Labor: Law. : . cs

Since exe lusive : jurisdiction contemplated by the New —

“York. State consent statutes had not. vested in the United

States on ‘Oc ‘tober 24, 1935, and in fact not until December

26, 1935, there is no Federal: question involved and therefore

‘this Court is without jurisdiction to hear this appeal.

In an endeavor to overcome | this irrefutable conclusion,

appellant urges as it did helow, that by virtue of Article I,

Section &, Clause 17 of the Federal Constitution, exclusive

jurisdiction over the place of, the accident had been ceded to

; Saved United: States abet four vei U's prior thereto tR. 99).

This identical contention was rejec ‘ted: by this Honorable

. our in the very: “recent cases of:

James. V. Dravo, 202 U. 8. 134;

Murtas V. Joe Cerrick & Ca., 291 U.S. “315;

Silas Mason (Co, Vv. Tax Comm. of bad ash, . 802 0.

186; “

Atkinson v. State Tax, 303 U.S. ;

Collis v. Yosemite Park, 304 U. 8. 518.

In the Janies.case it was also urged that exclusive jurisdic-

tion vested in the United States by ‘virtue of Clausé 17 of

[

A

\

.

Boe on eee

the Federal Constitution and not under the consent statute -

‘of the State. Mr. Chief Justice Hughes in delivering The 4

opinion .of the Court ‘pointed ‘out that Clause 17 contained:

“no @Xxpress sgjirlation ‘that’ the consent of the State must

be without reservation” and there was no reason’ “why the

United States should be ccompelled to accept exclusive:

jurisdic tion ‘or the State be.conipelled to grant it’ in giving its.

¥

4

4

In the Silas Mason Co, Case, the appellant contended that

exclusive jurisdic tion as to lands purchased at—privitte site ;

by the United States within. the State of W ashington, vested

“ipso facto” in the Feder a Government hy the operation of

Clause 17, Section 8, Artic le [of the Federal Constitution. |

Agitin rejecting such contention: this Court said at) page

197 Spe

_consent. to purchases.”

“It must appear that the State, by consent. or-cession.

hits transferred to the United States that ‘residuum «f

— tion, which otherwise it. would he free to ex gy

ércise.’ Es

Citing: : . wees ‘

. o a

Surpless Trading ¥. Cooke, 281 US. 647; : 4

James Vv. Drave, 302 U.S. 134: ee

Ft. Leavenworth Ry Co-v. Lowe, WE UL S. 5255 0% %

Arlington ¥. Fant, 278 U.S, 429:

“Enited Ntaies ¥. Uinzuetta, 281U. 8. 138.

<4?

; - ‘: . :

In the Uhinson case, the principles:sét forth in the James e

ease aia the Silas Mason case were reaflirmed, At page 25

this Court Said: — st: i a “a

: 7 %

% °

“In-Silas Mason v. Tax. Comm. * * * we said that. as

a transfer of exclusive jurisdiction rests upon a grant:

~—

°°

-

' pe ; 11

. by the State. it- follows. in accordance with familiar

principles applicable to grants, that the grant may be

‘accepted or declined:”

In Collins ¥. Yosemite. Park, 304 v. S. 3. 518, at page 52s,

Mr, Justice Reed stated : |

x e

“Jurisdiction” obt; nined by consent or cession anjay be —

qualified by agreement or through offer: ‘and acceptance

or ratification. It ixemematter of arr angement: These

arrangements the ‘Courts will recognize and respect.”

PD

In Murcay Vv. dae Gerrick & Co., 291 U.S. 315, Mr. Justice

Roberts stated for the Court: oe Rs | .

-

After the elfee tive date of the State's s cession the jurisdic-,

‘tion of the F ‘eder wl Gover nment was a Ft.

deave uwarth Ry Co. vy. Lowe, 114 U. 525; United

‘St ates v. Unzuetta, 281 U.S. 1 38), and es subsemently es

enacted by the State were ineffective in the Navy Yard.”

The validity of the New York State consent statutes is

het questioned by appellant. There can be no doubt. then,

from the foregoing principles-enunciated by this Court, but.

that the effective date of the cession of jurisdiction was

hot nutil December 96.1935. °°: “ie ae : és

Ih construing: ‘these conse nt ‘statutes of New York. the

hited States Attorney General said (1929, 36 Op. Atty.

(en, NOV g ae. , 5

oNew York Laws 1896. Chapter a91 and New York Laws:

1899, ( ‘hapter 242 as they have been respec tively amend-

ed. EXPress the-consent: of the legislature ‘of the State of.

New York to the acquisition of Jand by the United

States Within their respective limitations.”

12 -

“p he Act of “1899, Chapter ye should be complied with |

in. the mater of cities not exceeding two acres in extent

‘for post office and other governmental offices in, cities

and villages as has been done in the past.”

’The Act of 1899, Chapter 242 (General Municipal Law,

Seétions 210, 211, 212) is the ‘Act under which the United

States filed its “Title Papers” on December 26, 1935.0.

As early as 1861, the Attorney General said 110 Op.

Atty. Gen. 34) that if the Wnited States tailed tu obtain con-

sent, it tied its own hands just as where a State w rithholds its”

consent to a purchase already made.

In 1935, the. Attorney Gene ‘ral stated the prev ailing ruie .

when he said that to transfer exclusive political jurisdiction

-and dominion contemplated by Article I, Section S, Clatise

17, over land acquired bythe Federal Government, the State’

-inew hic ‘h it is situated must either consent to acquisition or

degish: itively cede such jurisdiction. ( (38 Op. Atty. Gen: 341).

From the foregoing we have therefore ‘the unassailable

conclusion that while exclusive jurisdiction, Was iWailable to

wre United States by mere compli Inve with the provisions

‘the State consent statutes, adeceptance thereof was: post:

se antil December 26, 1935 for some reason best: known

to the Federal Government. , |

The attitude of the New York State Courts with respec!

‘to the meaning and effect of its consent statutes was recently

expressed ina local’ Magistrate's Court and we refer thereto

hot as authority but rather as a sound application of the

-rpies as li Lid dow "by this Honorable Court.

The case is Pe ople ‘Ve ndome Nerviceeluc., 12 NOY. Sane

(2nd) 183. not officially reported... There. as here, although

the New York consent statutes: were in force amd exclusive /

jurisdiction available to the U nited Stages, Ho. applic ‘ation

was made there ‘for by the United Stites nor was any effort

B

€

‘Thomas .~. Aurelio stated: -

; fe;

“This not having been done, the rule to be applied in

such cgses is laid down in the leading case on ‘sub-

ject, Ft. Leavenworth Ry Co. ‘Vv. Lowe, 114 U. S. 525,

5S. Ct. 995, 29 L. Ed. 264, wherein Mr. Justice Fietd

‘aid ‘the consent of the State to the purchase of lands

4 within them for, special purposes named, is, however,

3 ae essential under the Constitution, to the transfer to the

$ weneral governme nt with the title of political jurisdic-

. | tion and dominion. * Where lands are acquired witlhiout-

3 - such consent, the possession of the United States, unless

political jurisdiction be ceded: to them in some ‘other

W hile there may be doubt in appellant’s mind about the

power of the State to impose restrictions upon the manner

and extent of jurisdiction being transferred, there is none

in ours because that question avas resolved with finality by

*. le tack at £ pias ee

PER nk SRK AGAR ta Olt

-

25

» this Court in the reeent cases referred to herein, supra, and

ae 4

+ it ix now thé settled. rule. that the eXtent of jurisdiction

4 trausferable is gaverned by the State statutes and’ not by

the United States: Coustitution. Clause 17, Art. I.

Hence. on the day Of this accident, the United States

|. had not.obtained jurisdiction -and ‘there is’ therefore no

Federal question involved reviewable by this Honorable

Court, 33 .

In view .of these legal principles, appellant's assertion

iii oA Me Beaiaas cas lap meas

othe lack of evidence that pet more than two acres were in-

volved, would leave the United States in the sorry position

that it never obtained jurisdiction ‘ander either Net since .

tT never complied with the State Law and its attempted

compliance with the teneral Municipal Law became inetfee-

q t

made to comply with the law's requirements. Mr. .J usticve |

wav, is simply that of un ordinary propr ietor,’ Aa tes —

that the Genet ‘al Munic ipal Law does hot apply because of»

_ Government ‘are legal, to wit: that the United States ob,

pn ee

: 14

tual because jurisdiction thereunder was transferable when

only two acres within a City were involved, ;

We, however, take the reasonable view, ‘supported by the

stipulation and the presumption that the Acts of the Federal

tained exclusive jurisdiction: by complying with the applic.

ible provisions of the General Municipal Law on Dee ember

26, 1935. -

den though, as we have- akan n, the provisions of the State

Law were inapplic able, we would like to correct appellant's

‘interpretation thoreof. The Act does not. give the Governor

diseretionary power to nullify the consent granted’ by Sec:

tion 50, as appellant would -have us believe. The constit—

provided for therein-is absolute and complete. With respect

to the transfer of ‘jurisdiction, however, under Settion 52.

the Governor is authorized, if he deems it proper, te execute

seiy deed or release of the State. ceding to the, United States

the jurisdiction” over said lami. Only ty thit extent is the

Governor clothed with discretion and he ix not. as appel-

lant contends, with power te “nullify the” conse nt under

Section 50. 0 thee = :

“Appellant advances the contention thatesince U.S. Code.

Title 40, Section 2D. prohibits the expenditure of any public

money until State consent is procured, acceptance of juris:

diction must be sions by the expenditure in the instant

case.

But appellant forgets that consent Ww vats complete (Genefal

Municipal Law, Section 210. or stifte I Law, Sec tion 50) and

exclusive’jurisdiction available That the United States de-

layed its acceptance of exclusive jurisdiction until December

26: 1935, is no concern of appellant's and it is reasonable

to say that the Federal Government-had a definite reasen

therefor and we cannot presume that the acts of the Govern

ment were illegal. . :

-

ye

-

ut

ont ‘s 15 eee 7 >

The United States; therefore, did not obtain jurisdiction

cover this building until after the date of the. accident and -

“this Court is without jurisdiction to hcar this appeal.

Appellee next asserts as ground for dismissal that the

decision of the State Court rests upon non-Federal ground

“which independently and adequately supports the judgment |

of the trial Court net withstanding the certification of a

. Federal question by the State Court of Appeals.

In Southwestern Bell Tel. Co. v. State of Oklahoma (1938),

303 UL 8.206, 82 L. Ed. 751, 58 Sup. Ct. 528) in dismissing

an pee from the State. of Oklahoma, this Court stated _

that it EO no jurisdic tion.to review a Sfate Court decision

“unless it appeared affirmatively from the record that not

only was a Federal question presented for-decision to the

highest Court’ of the State having jurisdiction, but that:

"jts decision of the Federal question was, necessary to the

determination of the cause; that the. Federal question was

“actually decided) or that judgment as rendered could , hot

have been ‘given w ithout dec iding it. :

In Honeyman. Hanan (XN. Y. 1987), 800 U.S. 14, 57

eS by 3ST. Ed. 476. it was said: © |. ji

a °

YX :

“A certificate or statement by a State Court that a Fed-

eral question has been “presented to it and necessarily

jrissed upon is not controling and. cannot avail to

foreclose inqtiry. whicle ‘the United States Supreme

Court must make in deciding whether it. has jurisdjc-

tion or to impart in the record a Federal question which

posi ix not thereby presented.” (Appeal dixmissed.

302 Vv. 375.)

Does this rec ord meet those requirements? Appellee thinks

* not and asserts that no Federal question of substance is

presented, .

The learned trial Tustic eheld: . . a

%) y

16.

_ “The proximate cause of the accident which oveasioned

\, decedent's death was the failure of the defendant to

‘thoroughly plank over the beams as required by Sev-

@ tion 241, 1r-maeees 4, of the Labor Law.”

_ The only possible I ‘ederal question whic hOvould ‘properly

have been before the Court was, as stated by appellant iR.

99). that the Labor Law was inapplicable as four-years bie

fore jurisdiction had. been’ ceded hy New York State to the

| ‘FPederat Government.

The decision of the trial Fustic ‘¢ does not purport:

decide ‘a Federal question, ~- 0 G .

Obviously, if the United States had hot accepted exclusive

‘jurisdiction up to, October 24,1985, no Federal question was

involved and the denial’ of appelfant’ s motion. to dismiss

in the trial Court supports the conclusion that the judg:

ment rests on adequate, independ at, non- Federal ground.

Ward y. Board of Co. ats 953 U.. 8..17;

Live Oak aie ni sers . tasn Vv. R, - Comm. of Cul.,

296 U0. » B54 y

Fos ey pts p. ve Mualten, 296 UL S. 207;

City of New sare v. Ceatral Savings Bank, 306 U

661. oe eae @

Appellant SiS that the affirmance by the Appellate Divi

sion was on, the theory that. the property in question fi UL a

“become a Federal reservation: and eappelles concedes that

there. is some” basis. for the cone lusion: from their lang: tee

that “tune common law and statytes in effect before the act.

of cession. remain in’ force aimntil displaced. by Congress

tNiniman vy. Hopper, 220.N. VY Is4, UST. Va NO BS 170

cand cases cited thereiny. “There has been ne action bs

Congress displacing the Labor Law in respect of this Fed:

eral reservation. Suel Peder wl Aétion as has taken prlaces

: a

alae oaroganoe ane ahaaal

A tat era lattet yu.

. * ss s “ - - ea rd

iced BAS CRAB INI AP gS OE AIS

eae ate

17

is contizmatory of plaintiff's right to: involie the applicable

“State statutes. (45 Stat. 54, Title 16, U. 8. 3. Code, Section

- $57.) (Dec. Ap. Div. R. 131.) z cele | ewes

But: neither the certification by the Court of Appeals nor \

the decision - of an inter mediate appellate court: is compe |

tent to originate a Federal question which dots not appear

in the record. iY a” ¢ A: yA

Purcell v. Nev York Mentral R. R., = Y, S. 545;

Alerander V. Movietone Its, -_ LC. 8. 7;

Honevoe v.. Hanan, 300 U8 ; MW, ae

Howevér, assuming for this discussidn, as appellant con:

tends, that exclusive jurisdic tion had vested in the United

‘States, would ther e then be a Federal questian of substance’

involved? ” t.. ,

Ss ‘ eC .

“~e

18

‘POINT II.

- Even if it be assumed that juris iction war

effectively transferred to the United States

prior to the date of the accident, the Labor Law

nevertheless continued in force since Gt was not -

repugnant to Article I, Section 8, of the Fedéral

Constitution, and therefore, no Federal ques-

tion of substance is involved. — a ee

_ This point ix addressed to appellant's argument labeled

“gy? page 12 of its brief, and it becomes necessary to con-

sider same only if appellee’s-motion to dismiss. is denied.

Appellant concedes that laws which regulate the personal

‘and property.rights of the individuals termed “imdniei pal”

continue in effect aftg@ change of sovereigns. :

In Chicayo, Rock Is: & Pao Ro¥. MeGlinn, WA US. St.

page 346, Mr. Justice Field. stated this rule as follows:

». “It is a general rule of public law recognized and acted

upon by the United States that whenever political juris:.

diction and legislative power. over any’ territory are

transferred, from one nation or sovereign to another,

the muniipal law. of the country, Le. the laws which

were enacted for the protection of private rights; cou

tinue in force until abrogated by the new sovereigns

:

— The New York?Labor Liaw enacted for the benefit of work:

ingnurer is elearly within this rule.

Steele ¥. Halligan, 229 Ped. 1011 (Washer.

Fhe New York State Labor Law >was before the late Mr.

Justice Cardozo when he. said in Naifman v. Hopper, 220

N.Y. S84: 187, in an analogous case: a

~

“The common law and statutes passed beforé the act’

of cession remafh in’ force in-the. ceded. territory until

displaced by Congress, | McCarthy v. Packard Co., 105

App. Div, 436, 4utd, on opinion below, 182.N. Y. 5555,

Barrett v. Palmer, 135 N.Y. 336) but later statutes are

of tio effect. This is now the settled rule (Farley vy

Scherno,, 20S N, Y. 269; PC ‘Leavenworth Ry. Co. v.

Lowe, 114 US. 525. 5373 WLU: Tel. Co. vy. Chiles, 214 -

POW 6 eS

In the Naufman case, it appears that the Labor. Law was

enacted after jurisdiction had been effectively ceded by the

State to the United States. It was for that reason that the

claw was held-inapplicable. Had the .Act of February 5.

12s 445 Stat, 54) been in-force at the time, the Labor Law .

would. have heen held applicable by “adoption”.

- Barrett v. Hag was affirmed by this Court in Falmer vy:

Barrett, 162 Uv. 399. The following cases. have reaffirmed *

“this rule, — |

Vurray Vv. es Gerviek & Co, 291 U.S. 3153. =

Arlington v. Fant, 278 U. S. 439;

Vilas v. Manila, 220.0. 8, B45: ie

Ft. -Léavenworth Ry. Co. v. Lowe, 114 U. 5Zo;

United States yo U nzuetta, PR] U. Ss. 7

On page 14 of its me and quoting from Halleck’s. In--

ternational Law Volume 2, ¢ ‘hapter 34, Section 14, page 5 6)

appellant says “that this rule that laws continiie in force

ap ite only to these adopted by the new sove reign as its

owns” That sue h contention is wiout merit can be seen

tront the language of the very decisions upon Which appel-

lant relies. . d ;

The rule is that State laws remain in force until abro-

sated or displaced by the new gover nment, ude ‘ongress may.

‘-, to = . a

s. : . : : ’ "i

however, , adopt such later state legislation as respects ter.

vitory under i city Slices is th td |

° - ¢

Murray V. Joe Gerrick 'é Co., 291 U. 8.315, 317,

1935 (38 Op. Atty. Gen. 341). . a

. Since the only ‘point saved ity eaten on the record is 4

that the State law while valid was invalidly applied (R. 99 ‘

& 112), we limit ourselves to that question. .

ad

-, Unless then, it ‘affirmatively appearsthat the’ sta Labor PY

Law was inconsistent with the purposes of the acquisition

or was repugnant to Article I, Clause 17, Section 8 of the:

Federal Constitution, there is no‘ question of substance in |

volved. ‘ pen | ‘

_ Both parties rely upon: the same authorities. The only

reason assigned by appellant. for the possible: repugnance

— of the Labor Law is in the assertion that. the “duty to enforce

the law in the Federal reservation would be an interference

with Federal authority and that it cannot be reasonably in- ”

ferred that the Federal Government intended that this stitute

should be only partially effective. in its territory. ~.

Cae

ge

°

It, is. unnécessary to consider that queation because we

are concerned solely with: the civil aspects of the law and

the civil responsibility ‘of one New York citizen to another

New York citizen for an adinitted “violation. of the State

law by the former; topped in the death of the latter, and

the attempt to ese ape liability’ on the sole ground that, be-

cause the liability originated upon Federal territory, the

A - ‘ ‘ rey * :

Re eee a WP ge te HAP eM ETN ORT Yb ena a,

ROS Le Te

State law was inapplicable.

Pe aga ee Bs

‘

Whether or not the State officers could have sntdved upon

the “reservation” to prevent the wrong by compelling com ‘

plianee with the Labor Law, is immaterial. The,wrong was. 4

committed, the decedent, met his. death as-a result’ the reol

and the action at law for wrongful death under the State

' : ns 21 : ay °

e ~ “ . i . * 4 P

Decegent Estates Law, Section 130,* gave to aioe: the

right to invoke the applicable provisions of the State Labor

~ Law té sustain her, right to recover, for. the civil wrong.

Appellant may® bave been willing to garhble upon . the

assumption that sthe State, could not: enter upon. Federal

property to enforce the provisions of the Labor Law but

that in po way detraeted- from. its legal responsibility ° to .

those injured because ‘of its failure - ‘to comply therewith.

Any other reasoning requires the conclusion ‘that’a Fed-

eral “ene lave” creates a sonetuary for an independent con-

tractor and no matter how deliberate or willful his negli-

- geuce, he: would . nevertheless be immune® from both the |

criminal and civil laws of the State. ee

Fortunately, such is not the law. As to its civil: aspects,

the Labor Law éontinued in force since’ in-no. way ‘was ‘it

repugnant to the Federal’ Constitution or the purpose ‘of

the acquisition. — : |

Chicago, Rock Island: & Pa. AR. V. -MeGlinn, 1 i

U. 8. 542; ee

United States Vv. Uns pte 281 U. 8.138;

Ryan vy. State, 302-U. .T86; 7

Murray v. Joe Gerrick c Co 291 U.S. 815;

James vv. Dravo, 302-U. 8.134;

Silas Masoén. Co Vv: Tas C omm, of Wash., 302 U.

186; |

Vilas y, Manila, 220 U. S. 345:

Williams v. Arli@gton Hotel 22 F. (2nd) 669; |

Q Palmer vy. Barrett, 162 U.S. 399; eri

“Arlington ¥. Fant, 278 Ue. 48925. °

Ft. Leavenworth Ri. COLN. Lowe, WA US. 525:

Wel. Tel. Co, v. Chiles, 214 U. 8. 274,° ;

: These rules were. restated be the Attorney ae (1935, -

; oy Op. Atty. fien. S41) when it_was said that State Jaws

y)

me

. Appendix, p. 37.

e : - . é eee ty Fa)

, ‘

regulating private civil ‘rights continued in force where .

they were consistent- with exclusive jurisdiction and not

inconsistent with th Federal laws. or the purpose of the

_ cession. :

The Labor Law is jemnsiletty’ a valid enactment. ‘There

has been no Federal’ legislation | to supersede it. No claim

is made that its previsions are inconsistent with the ee

“> of the acquisition.

it follows that even if it tie nub’: that jurisdiction had

been effectively transferred to: the ‘nited States prior to

the date’of the accident the Labor Law was ‘nevertheless

applicable and no substantial Federal question is invelved.. —

“Such. Federal action as has ‘taken place is confirmatory

of plaintiffs right to invoke the applicable State statutes

(45 Stat. 54, Title 16, U.S. Code, Section 457)". (Decision

“of the Appellate, Division, R.-131.)- :

~ The Act of February 1, 1928, to which the. Jearned, ¢ ‘ourt

referred, was before this tribonal in Murray’ v. Joe Gerrick

& Co, (19384), 291 UL 8. B15: and there « “an he no doubt lett

that the Appellate Division correctly interpreted Section

457,'as indicated ‘by this Honorable Court; +

The sponsor of ‘this “Federal, Act was the late Senator

Me alsh of Montana (Congressional Record, Volume 69, Part

. page 678) who, im answer to the query of the Sénater

pitet: Arkansas as to the purpose of the Act (id. 1293) stated -

it was “intended practic ally to make the application of what.

is. known as Lord Campbell's Act to places within the ex-

clusive jurisdiction of the U Wited States” sq that “if under

the law of Arkansas a right of recovery colt he had: if the.

death occurred outside of the national park, the same right:

of action would exist if it occurred, in the national park"

vid... page 1486). ; |

In Ralph Sollett & Sons Vv. Comm. of Va.g 292 UL 8, 59%

appellant thereim, as in the instant case, asserted that a State |

©).

ho

statute was improperly applied to property”: ander the ex-

_ clusive. jurisdiction of the United States hy, Virtue of Article

> - 1. Section &, Clausé 17. The appeal Was dismissed for want

of a substantial viruses al question and rehearing ‘was denied,

April 30th, 1934. ‘

Although the point was trot Sinde- in the trial Court ‘aa

js not within the certification of the Cyurt of Appeals, ap-

hess contends, (argument “D") that to enforce the Labor

| Liaw would operate to centrel ‘and ‘restrict thie” conduct of

a Federal project and that therefore it was repugnant. in-,

that respect.

Even if that. question were properly hefore the Court, it

‘is an objection that the United States or. its agents might

wake but hardly the appellant, who, as an independent con-

‘tractor is neither arm, ygent Maras i ‘of the

Fede ral Government. a

In Baltimore Ship. Building & Drydock Co. y. Baltimore,

i U.S. 375, a contractor engaged in the construction of

a Federil project, asserted a similar-€laim as. an. alleged in-

sStrumetitality of the Government ‘and that aty interference

hy the State was ‘a violation of its-imimunity. Such conten-

tion was rejected by this Court. “as

Ralph Nollett & Sous Vv. Comm. ccd “me (supra) ip to the

sume effeet. ;

Ih Gene ral Construction Co, V. Fi ischer, 89 Pax (2nd) 358,

an appeal was ; ‘alko dismixsed by this Court for want of a sub

stantial Pederal question, “5 UM. TL. The lower Court

had rejected appellant’ s “contention of imuiunity in the fol-

: lowing langnage:: ".

“When plaintiff, an independent contractor for gain, en-

tered into a contract to perform labor and furnish

“materials to the Federal Government, it did not thereby |

~ become a part of. or an fest rumentality of the United

States Government. Pa.

G

SS

. af od ‘ 4 >

~, In accord are:

Trinity Farins Construction. Co. v. Grosjean, 291

U. S. 466; . 2 ies

James v. Dravo, sez U.S. 134.

«

The principle of jmumunity ‘is generally hyged upon the

direct ownership ‘or use and control of the property by the

United States. suc h immunity does wot extend to a general |

‘contractor merely because he has a contract with the United

States. As Was, said in Fidelity & Deposit: Cov. Pa., 240

.ULS8. 319, GOL. Ed. 664, BGR. CL 29,

“Mere contracts between private Corporations and the

Vhnited States do not necessarily render the former-Gov-

ernment agents or confer freedom from State control.”

Thompson, Union Pacific Ry. 9 W all. 579

Metcalf & Eddy v. Mitchel, 269 U.S. ones

Gromer V. Standard Dredging, 2o4 v. Ss. 362,

°

In James Vv. Draro, it was ss soleil out that an » indicia ea

contractor engaged in constructing a Federal project upon

Federal property remained nevertheless an independent con-

tractor and did not- theseby liecome any instrume ntality*oi the

Gover nment.

° 4

Alward v. Johnson, 2a2. U: 8. 309.

The feference to the act sponsored by Senator Shepard.

(appellant? 's brief, page IN) as-evide ‘nee of a presumption

not to adopt State siifetve laws on F ‘ede ral projec ts is to our

minds frivelous, Ino the first place, the language of the

proposed act elearly indicates that its purpose was to adopt

the enforcement feathres.of the State safety laws. Ft is also

just as reasonable to say. as long as appellant is presumptu-

We

25:

ous, that the act failed. of enactment because application of

the State safety laws could ‘be spelled, out — The . Act

“of February 1, 1928 (45 Stat. 54, Title 16, U. 8. Code. 457).

Ww ms it was decided in Murray v. Joe ae. & Co., 291.

"USS: 815, that the compensation act of (v ashington was not

: within the purview of the Act of February 1, 1928, since it

contemplated “actions at law” and not “a*‘system by which

cinployers contribute to a fund: to which injured workmen

Must look for compensation” . Congress voiced its reaction.

by passing the Act of June 25. 1936 (49-Stat. 938) which not -

only made State Compensation Laws applicable to Federal

projects but gave to the State agencies the power of en-

; forcement. eae ae ' ~ eeag.

“This aet is indicative ef the idtention of Congress not

oniy to continue the force and effect of the. State laws ‘Teg:

~nlating, private civil rights, hut also to adopt later laws

which provide for the welfare and safety of workmen. That

a law may be effective to control private civil..rights and

nevertheless iheapable of enforcement is borne out by this

act for unless specific enforcement powers were given to.

“State agenc ies, such enforcement or police power would:

have remained. ‘with the Federil Government. :

The dir ray cuse he ld that the compensation act of Wash-

ington “was hot a right of action” within the Act of Febru-

fry 1, 1928, :

New York Lahor Law, “Section 241, Subdivision 4, créates |

that “rieht of action” and W ote from appellant’ Ss brief, e

page 4. in epposition to otis Mc to dismiss : ;

ae * * it has. been uniformly held that violation of a

statute, which poses” a positive duty for the benefit

of-a particulaeAclass, creates a cause of ‘action in favor

of any member of that class who is injured through

‘its violation, regardless of ‘negligence’.. The duty is

created by the statute, regardless of: the existence of

26

any duty at common law (cases cited). The Labor Law

is such a statute. It imposes. absolute, non-delegable

duties upon these in vontrol of the construction of

buildings, for the protection of all persons engaged i

the work. Civil liability for injuries or death, resulting

from the breach thereof, follows by operation of saballl

(cases cited). |

The New York Decedent Estate Law, Section: 130, which

gave to appellee a right to hold appellant liable for its ad-—

mitted. negligence, is clearly within the eerrew of the act

of February 1, 1928. : 6

The Labor Law defies the duties owed by a contractor to

employees and provides that violation thereof gives rise to

a civil action for ayy injury or death attributable to its

violation. Such a law is “municipal” as distinguished from

political. !

We have pointed out that in Kaufman V.. Hopper, 220 .N. ¥.

IS4, the provisions of the New York State Labor Law were

hefore the Jate Mr. Justice Cardozo. His opinion was based

in part upon’ the decision of Mr: Justice Field in Chicago,

Rock Is. & Pa. Rov. MeGlinn AU. 8. 42, wherein “miu:

nicipal laws” were termed as “the as which ace intended

for the protection of private rights.”

As we stated e ‘urlier herein, had the Net of February 4,

192s, ante, been in force, it is logical to say that the Labor

Law would have deen decreed “adopted”: as a “municipal.

law.” 7) te

Tn Bradford Elect. Lt. Co. v. Clapper, 286.0. 8. 145. 52

S.Ct. 571, 76 L. Ed. 1026) at pages 157. 158. this Court said: 7°

o.? .

2.

“Workme i's Compensation Acts are treated, almost uni-

versally. ais creating a statutory relation between the

parties * * * not, like emplovers liability acts’ as sub-

_stituting a statutory tort for a common law tort.”

J

&

oe

£

?

}

t

2

:

27.

The Labor Law, likewése substituted a‘statutory tort for.

a common law: tort: but. it heve ‘theless remained as the law

inte nore for the protection of private rights, “the municipal

law.

Appellant's strained inGrtion to avoid a just lifibility

is Without substance.

. We submit, therefore, that the State eres Was in force.

ho matter whether. it: be decided that the State or the United

States had jurisdiction of the enclave at the time and there-

fore no Federal question of substance is involved.

‘POINT III.

©

No Federal question of substance is presented

_by the contention (assignment +6, R. 143) that

the State Court erred in excluding defendant’ .

exhibit AY for identification. |

2

Without preliminary foundation, the appellant offered into .

evidefice two sections of the specifications of the alleged

contract between the Treasury Department and itself,

This was-the only evidence offered by it (R. 110) and

counsel stated, “And Vowant-to call attention particularly

to the. things f{ have in mind, two sections of the specitica-

tions Which by reference are made part of the contract.”

At page 111, folio 3382, “It is my claim * * * tie United

States Government through proper authority has specifically

limited and exempted from application and declared a policy

thac those provisions are not applicable.” — :

"Under the guise of “argument D”, appellant for the first

time asserts that its contract was’ un instrumentality of

the Federal Government and, as applied herein, the Labor

Law conflicted and interfered with that contract ‘and. its

perfornianee. ° is .

—_ €

os”

We contend that no such question is properly before the

Court and even if it were it is without merit.

. *

Patterson V, State of A labama, : 294 U.S. 600.

In this point we address ourselves: ie coca argu-

ments labeled “D" and “E™; except as already referred

to ante. ae ; ie ie a

The reason for the exclusion of the’ protfered evidence

by the Court ix not stated: but appellant concedes the rule

of law. to be “that contract may not relieve ® party there-

to from the performance ofa ditty to a stranger to it™.. (Ap-

pellant’s Brief, p. 20.) —. Roar oer ~

It asserts, however, that the contract was at instru-

mentality of the United Stafes and also evidence of execu:

tive determination ‘that compliance with the statute would

burden, hinder and interfere «with the performance’ thereof.

In answer, we contend, that even if this question: were

properly before the Court, no such intention. is apparent

from the language of the proffered sections and furthe: that -

the Treasury Department was without power to grant to

appellant immunity from the otherwise applic able provisions

of the laws of the State. since that power, levislative in its

nature, is expressly reserved to Congress,

—_aelhe sections exciuded, are as follows:

Bection 21, Protection of Iiblie and Property oR. 121

“The contractor shall * * * comply with all Municipal

ordinances which apply to the use of sidewalks. and

streets or allevs Mr building. operations, but such or

dinances do not apply inside of the lot lines. He shall

be held responsible for any damage or injury to persons

or property \ hieh may occur as a result of his fault

or negligence in the prosecution of tie work.”

n

seouee A pg Cas Shai ha

bo ag eAe Tat Se aC My vo

tet dtete

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ae RSE be

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we

239 -

Section 2 2”. Permits:

~The contr wtor shall without additional expense to the

- Government obtain all required licenses, permits, ete.

e This applies to work outside the let lines, the ase of

streets and sidewalks,. the protection of public and

traffic, Connections to utility service lines, etc. State ,

or, Municipal Building Regulations do not apply to

_work inside the Government's lot lines.”

We find nothing contained ‘therein which says in words or

substance that appellant Was not required to comply with .

the provisions of the. ‘State? Labor -Law. Section 21, as oe

cditle indicates, relates to “protec tion of public and property”

sun requires’ the contractor to provide and maiutain. all

hecessary guard rails, ete., for the protection of the public

and to comply with sidewalk ordinances in so far as they

apply inside -of the lot lines, It provides, however, that the

vontractor “shall be held: gesponsible for any damage or

injury togpersons or property which may occur as a result

of its fault or negligénee in the prosecution of the work.”

We doubt that it can be said with reasog that it was the

intention of the Tr easury ‘Department by this language to

relieve appellant, from the nee essity’ of. complying with the

Labor Law provisions and.thereby;be free from any re espon- |

sibility: attributable to such noncompliance.

» Section 22: aus. its title indicates, requiredethe contractor

to procure permits for work outside: the lot lines but not

inside. In an advisory manner it says “state or municipal

building regulations do not apply to work inside the govern-

ment let- lines.” In our opinion the last: sentence ‘refers

<olely to permit requirements. Appellant claims, however,

that this granted complete immunity to if jind it was there-

fore at liberiy to disregard any and all State laws provid-

e

ing for the safety and protection of hundreds of men em-

: ‘ployed. ,

Under the — Law of New York State, Section 1275,

Violation of the Labor Law or any rule, regulation or order

adopted or. made in- pursuance of its provisions is a mis-

denieanor, Enforcement is entrusted to State oflicers out-

side of eities but otherwise to local city. agencies. .

It.is true that when a new sovereign becomes: the owner

of property with exclusive jurisdiction thereof, enforcement -

or police power immediately quisses to it, Substantive rights.

in ex xistence, however, can only be altered hy direct action

bv that sovereiin (Point 113. =

That there is a definite” distinetion between substantive

and or civil rights as. distinguished — their penal charac-

ter, ‘appears from U. Ss. ¢ ‘ode, Tithe fo, Section 290% en

acted June 25, 1936, Chapter S22, See tion Tand,2 (49 Stat.

-1938). By this act not only are State compensation laws

made applicabie to Federal projects, but in addition, the

power of enforcement-is given to the “agencies of the State”.

sig act was passed about a year after the decision in Murra y

Joe Gervick & Co., 291 U.S. 315. and remoyed any ques:

tion about the applic ability of State compe nsation laws to

Federal projec ty - It also removed the necessity of deciding

whether or not State compensation laws were within the

purview of the Act of Febr nary 1, 1928, Chapter 15 ¢Title

16. UL 8. Code, Section AST). .

It is: therefore Apparent tin: if Congress: recognized that

while State laws might continue j -force even affer.the

United States accepbed jurisdiction. in unless the agencies

of the State were given the power. to enforce them, that-

right remainéd with the United States. Until similar aetion

is taken with respect to other State laws, to wit: The Labor

‘ *

* 1 Appendix, 1. 38."

es ee,

ay eae

J ceeds ee

° ‘

ry ad ’ wt o

a1.

Law, its civil aspect governing the ovilate stitite of citizens

continues in force in Federal eaclaves but the enforcement

thereof remains in the hands of the I'-deral Government.

We doubt that appellant would contend that the Treasury .

Departinent by contract “could remove the, application of

State compensation laws ‘in view w of U. S. Code, Title 40,

Section 290.* For the same reason the Treasury. Depart-

ment could not and in fact did not attempt to remove the

effectiveness of the Aet of February 1, 1928.

Even if it be assumed that the Treasury Departmentsin- ;

tended to do so, it was Without. power to accomplish: that

result. Under the United States Constitution, Artic ie By

Section S, Clauses 17, 48, only Congress is vested with

power to enact laws or to repeal them. The powers con-

_ ferred ‘upon. exec utive heads of execytive departments are

administrative, not legi islative.

United States Vv. George, 228 U.S. 415.

Regulations by an executive must iin conniatent with law.

They may not be extended so as to alter, amend and defeat:

“adaw already enacted by Congress. Where rights, duties

and obligations are defined by statute they.cannot be taken

saway or abrogated by the act of an executive department.

; | it

Campbell v. United States, 107 U. S. 407 ;.

eS: FoR, 166 U.S. 466.

i a SRR Ried api ais Aiiepaselle Sethe at ; Aji Sar DE

Late

pean}

The legislative power vested in stan liao cannot be abro-

\

sated or assigned.

Panama Refining Col Vv. Ryan, 293 U.S. BRS:

a Oa) |

Curran ¥. Wallace, 306 US. 12 59 8. Ct. 3879.

e

*

( Appendix, p. 38. )

RRS RIE ASE. BUNT ATES Cel Bi See

ee eae? '

’ . ee

The Presenvy Department was without authority to grant

immunity to appellant even if it intended to dd-so.

~ Panama Refining Co. v. Ryan (supra ).

And this is particularly true: when the contract or reguia-_

UO

tions are in contlict with the express statutory provisions.

| . he “ be :

; Maryland Cas, Co, vo US. 231 U. 8. 342.

We have been unable to jind any Congressional enactment

Which expressly or impliedly vives to the Treasury Depart

“ment the authority to remove the effect of applic able State

‘laws or. United States laws.

Ty sep contrary we find the Act of. February 1. 1928 ( Title

It, U.S. Code, Section 457) confirming appellee's right to

recover and the later Act of June 25, 1936 (49 Stat. 193s).

both evincing an. intention upon the part of the Federal

Government to permit the States to apply State laws deal-

ing with purely local matters even though the enclave hap. .

pens to be under the “exclusive jurisdiction” of the United

States,

Although appellant advainens’ that argument, it SPOTS

rneredible that the Treasury Department would attempt ly

contract to remove application of the State Labor Law which

vives rise to an “action at law" at. the effective’ date of

the cession which was clearly Within the cotttemplation of’

the Act of February 1. 192s...

It has always been the practic e of the Federal Govern

ment to provide for the safety of workmen engaged in.

the construction of Federal buildings even though general

contractors are acting indepe ndently, 7

While the contract between tappellant and the Treasury

Department isonot-in evidence, the inference is that it re.

quired appellant to provide compensation insurance for she

\

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33

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art ore *

protection of its owt employ ees and liability insurance for —

the -protection of the employees of others because those

very conditions were exacted by appellant of the United

Hoisting - Co., Inc. in its subcontract which is in evidence

iR. LIS, plaintitl's Exhibit "3": RB. 119, 120).

Merely asserting that the State Labor Law did not apply

is legally insufticient unless it is show n that some contrary

Federal rule was controlling. -

lt is difficult to believe that: lesscitia ‘eotiously contends

Ahat it was free from. any and all responsibility to the em-

plovees of subcontrac tors regardless of the extent of its negli-

gence in providing for their safety.

Yet, as strange as it seems, ‘that is exactly the position

it takes. It says, we admit that we failed to protect the

“hay” where Sadrakula was working. and it is true ‘that we

hawe been found negligent in that respect and responsible

‘ for his death, but nevertheless,,the State Labor Law was

inapplicable. In other words, its position is that the “reser-

vation” was without any laws. ‘

To prevent such a ehogee the rule in Chicago, Rock Is. &

Pa. Ry MeGlinn, 114.8. 542,546, was laid down, There-

“it was dee ‘ided that in oie to escape the impossible con-

clusion ‘that no law existed: to determine the rights and duties

of the inhahitants of those areas, the pgp borrowed the

international rule (Vilas v. Manila, 220 US. 345) that upon

a cession of jurisdiction the laws of the old sovereignity re-

main in force until abrogated by the new, unless “im: con-

Hiet with the political character, institutions, and constitu-.

tionof the new government. “ Sear,

We are thus brought back to our contention in Point

that no matter how appellant may view it in a different light,

the only law which could properly have been held, applicable |

was the New York State Labor Law and since that was the i

State Law in force at the time, no action of the Treasury

~

Departmetit even if So intended could have removed its |

effectiveness. . ' :

The case of Anderson vy. Chicago & V.W.R. R. Co. (162

Neb. 578, 168 N: W. 196) , cited lei amppellant ( brief, p. 12), . @

___. supports an contention.

Tn the Anderson case; land was ceded to the United States 4

for the purpose of a Military. reservation. The railroad)

company had a right of way running directly through the | :

center and at the time of ‘cession, there was a State Law ip

existence requiring such right of way “to be fenced in. The —

railroad - ‘company attempted to-scomply with the State law 4

_ but was prevented from so doing by the ( ‘ommanding Qfticer Pa |

" because the fence would divide the “reservation” into two ° |

: equal parts and greatly 1 restrict the use of the ‘property for’

,. ‘the pur pose of the acquisition, 3

r It Was very properly decided that’ as the State law was. ;

%

ineonsistent with the xery purpose of the acquisition, it

ceased to exist ine the reservation. It was not the action of

the Secretary of Ww ar that removed the effect of the: State

Law, oe the general rule of law (Chicago Rock Is. :

Pa. R. ve We Glinn, supra) thin the ‘laws continue upon the

sasesshianttaeh “where hot inconsistent with the purpose of the- 7

cession.” ; . . ; :

' We believe that in our Point “TT” we have sufticiently re- ‘cad

futed appellant's argument “DD”. ’

We would nevertheless like to submit. what was said by

this erg in, Trinity Farms € onstruction Co, V. Grosjean, 4

291 UL S. 466, 7s L. Ed. 919.

. .

j 0 ; . 7

‘hegellan is'an independent contractor. Casement v-

Brown, HIS UL 8. 615, 622. 13.8. Ct. 672, 37 Le Ed. 582.

OSO. Tt isnot a Aba vn instrumentality. Cf, arg :

| Mitchell, 269 US. S. O14, 70 L. Ed. 884, 46 8. Ct. 1725,

° o..

|

Group No. 10 Corp.-v. a 283 U. 8. 279, 75-L. Ed.

10323°41 8. Ct. 432.”

35 fae eee?

“a the payment of State’taxes imposed on the property.

‘und operations of appellant “utfects the Federal Govern-

‘ment at all, it at most giyes rise to a burden which is

“consequential and } remote and not to one: that is neces

sary, immediateOr direct ‘(cases cited), Anididhis s

claim of immunity is without foundation.”

tae ae Nomen

CONCLUSION.

It is respectfully submitted that appellee’s motion to dis-

miss or aflirm should be granted because :

(ape This C ourt is without jurisdicti ion to hear the appeal

(Point 1) °

Jib The decinién' of the State Court. rests upon. indeper-

. dent non-Federal ground adequate to support. it:

Ce Poe F "A Ge

ic} Noo Federal question of substance is involved.

0 oe ; a . . c

- Respectfully submitted, — ane

o « Lpo FIXLER

. @-

a?

“In the, same manner, nap meigoorgeny that if the: .

State songhit to enforce the Labor Law in the “enclave”, it

then would bean inter ference with a F ederal instrimentility, vf

is i without fofindation. gh ig / Rowe

~~

; 36 pe

°

APPENDIX.

°,

290. State workmen’ 8 compensation laws; extenision

buildings and works of C hited States

2

+ ee constituted paren y of each of the several

States is charged with, the: enforcement of and yequiring

complianees with the State workmen's compensation laws of

said States and with enforcement.of and requir ing cqtipliance:

with the orders, decisions, and awards of said constituted

authority of said States shalldhave the power and: authority

to apply such laws to all lands and premises: owned or held

by the U nited States of America, by deed or act of cession,

by purchase or otherwise, which is within the exterior

boundaries of any State, and to all projects, buildings, con:

structions, improvements, and® property belonging to the

United States of America, which is within the exterior

boundaries of any State, in the same way and to the samy

extent as if said premises were under the exclusive jurisdic-

tien of the State within whose exterior boundaries such -

place may be. a .

For*the purposes set out in this section, the U nited Statics

of America hereby vests in the several States within whose

exterior houndaries ‘such, place may be) insofar as the en-

“fore ement of State workme@n’ s compensation liws are affee ted,

the right, power, and authority aforesaid ; Provided, how-

vever, T hat by the passage of this section. the United States

Ameri Heat in “howise relinquishes its jurisdiction for any |

| purpose over the property’ named, with the exception of ex

tending to the several States within whose exterior boundaries

such plact may be onls the powers above enumerated relating

to the enforcement of their State workmen's compensation

Jaws as herein designated: Provided further, That nothing

—

a)

37)

in this section shall be construed to modify or amend sections

751 to 796 of Title 5. (June 25, 1936, c. 822, §$1, 2, 40

Stat. 1938, 1939.) -.—

4

New York “Death” Act (Decedent Estate Law,

See. 130; Consolidated Laws of New

York, Chap. 13, Sec. 130).

t

“Sec. 130: Action by executor or administrator for neg-

ligenice or wrongful act or default causing déath of decedent.

The executor or administrator duly appointed in this state,

or in any other state, territory or district of the United

States, or in any foreign country, of a decedent: who has

left him or her surviving a huk and, wife, or next. ef kin,

may maintain an action to ree over damages for a wrongful

act. neglect or default, by which the decedent’s death was

cansed, against a natural person who, or a corporation which, —

would have been liable to an action in favor of the decedent

by reason thereof if death had not ensued. “Such an action

must be commence ed within two vears after the decedent’ e.*

death. * * *.°° (Remainder thereof. not. pertinent.)

om

38

Act of Feb. 1, 1928, 45 Stat. 54 (ait. 16,

U.S. C. A., Sect. 457).

~*

*

Section 457. ACTION: For: ‘Deatu On P ie AL INJURY

WITHIN NATIONAL PARK OR OTHER PLAcE U NDER | JURISDIe-

TION OF U NITED, STATES; AP PLIC ATION. OF STATE Laws. In

the case ef the death of any person by the neglect or w rongtul

act of another Within a national: park or other place subjec:

to the exe lusive. jurisdiction of the United State ‘s, Within the

_ exterior boundaries of. any State, such right of action shal!

eXist iis though the place ewe eC under. the jurisdiction of the

State Within whose exterior boundaries such place..may es,

and in any aetion bronght to-tecover on account of injuries

siistained j in any such place the rights-of the parties shall -he

rove red by the haws of the State within th exterior bounm

daries of w hich it may be. (F ‘eh. 1, 1928. ¢. 15, 45 Stat. 54. \s

z

*

.

i ty.

SUPREME court OF THE UNITED STATES

No. 251. —Ocroner Tera, i939. oe

o

James Stewart & Co., Ine., iedean

oR US. s . Appeal from the Supreme

. Katherine Sadrakula, as Administra-\ Court of the State’ of

trix, ete. of Nicholas Sadrakula, de-| New York.

ceased:

4

[Fannary | 29, 1940.]

Mr. Sattion REED delivered the opinion of the Court.

This j is an appeal from a final judgment of the Bescene Court of

New York awarding damages for accidental death. As a statute

_ of the state necessarily was sustained against a contention that its

application to these circumstances violated the provisions of the

- Constitution as to the exclusive authority of the United States over

4 post-office site. purchased . with the consent of New York,} this

Court has jurisdiction under Section 237 (a) of the J udicial Code

and the Act of January 31, 1928.

The- issue of law involved is whether an existing provision of a

state statute requiring the protection of plaves of work in the

‘manner specified in the statute? remains effective as a statute cf the —

United States applicable to the particular parcel after the federal .

government acquires exclusive jurisdiction of a parcel of realty on

which work is bei done. ;

™m an unplanked tier of steel nents down a bay and was killed. |

‘In.an action ef tort against the general contractoF, his administra-

1 Constitution, ‘Art. I, See, 8, Cl. 17: y ;

‘*The Congress shall hdve-Pawer . . . To exercise exclusive Legislation :

_. over all Places purchased by the consent of the Legislature of the

st ate in which the Same shall. be, for the Erection of se a ate Ar-

senals, dock-Ygrds, and other needful Buildings ; es

2 New York Labor Law § 241 reads as follows: .

‘See. 241. Proteetion of Employees on Building Construction or ‘ Derolition

Work. . All .contractérs _and owners, when ccnstructing or demolishing build-

RRs, shall comply with ‘the following requirements :

¢ * -

%

2 Stewart & Co., Inc. vs. Sadrakila.”

-tvix narrowed the scope of the charges of negligence until violation

of the quoted sub-section of the Labor Law only ‘was alleged. The

trial court found that the proximate cause of the accident was the

negligent failure to plank the beams as required by the statute.

The Appellate Division affirmed’ on the ground that the Labor Law

pravision continued effective over the post-office site after the trans- ~

fer of sovereignty, and the’ Court of Appeals by an werepertal

order of remiftitur also affirmed on the same ground with a state-

- ment that in its affirmance it necessarily passed upon the validity

and applicability of Section 241 (4) of the ined Law: under Article

I, Section 8 of the Constitution.

The. language of the Court of Appeals and the ‘record show in-

dubitably that a determinative federal question was decided. The

conclusion as to the continued vitality of existing state statutory

regulations. in the protection of workmen -in ceded federal areas,

makes it substantial.5 The motions, to dismiss or affirm the appeal

are denied.® oo

If the quoted provision of the Labor Law is “operative even

though exclusive jurisdiction had already vested in the United

States, it is unnecessary to determine whether exclusive jurisdiction

had actually passed to the United States. The state courts assumed

that federal Sovereignty was complete through consent by the state

and we make the same assumption: Does the acceptance of sover-

eignty by the United States have the effect of displacing this sub-.

‘sertion of the New York Labor Law? We think it did not. The.

sub-section continues as a part of the laws of the federal territory.

‘It'is now settled’ that the jitrisdiction acquired ‘from a state by.

the United States whether by consent to the purchase or by cession.

on — 2 Oe ——

“*4. Tf the floor beams are. of iror_or ateel, the entire tier of iron or stee!

beams on whieh the structural iron or steel work is being erected shall be

thoroughly placked over to not less than six feet bevond such beams, excerpt

spaces reasonably required for proper construction of the iron or steel w 7

for —.ising or lowe ring of material or for stairways and elevator shafts des’

nated by the plans and. specifications. ’

3254 App. Div. 892. .

4 Heneyman vr. Hanan, 30 U.S. 14,19; Whitfield r. Ohio, 297 U. 8. 431.

4°95: ef. McGoldrick ‘rv. Gulf Oil Corp., No. 473, October Term, 1939, decided

January 15, 1940.

5 Milbeim r. Moffat Tunnel Dist.. 262 U.S. 710, 716.

®Cf, Mason Co. r. Tax Commission, 302 v. S.. 186, 197; Murray r. one

& Co., 291 UV. S. 315-16.

«

Stewart & Co., Inc. vs. Sadrakula. . 3

may be qualified in accordance with agreements reached by the re-

spective governments.?7 The Constitution does not command

that every vestige of the laws of the former sovereignty must

vanish. On the contrary its language has long been interpreted so

as to permit the continuance until abrogated of those rules existing

at the time of the surrender of sov ereignty which govern the rights

of the occupants of the territory transferred.® This assures that no

area however small will be left without a developed legal system

for private rights. In Chicago, Rock Island and Pacific Rail-

‘road v.-McGlinn, supra, a Kansas statute relating to recovery

against a railroad for the injury to livestock. on its right of way ex-

isted at the time of the cession to the United States of exclusive

jurisdiction over Fort Leavenworth Military Reservation. It was

held-that the statute was carried over into the law covering the

Reservation. Conversely in Arlington Hotel Company v. Fant,

supra, an Arkansas statute relieving innkeepers, passed after ces-

sion of Hot Springs Reservation, was held unavailing as a defense

toa Reservation innkeeper ’s common-law liability in‘accordance with ~

Arkansas law before the cession: Such holdings assimilate the laws

of the federal territory, where the Congress has not legislated other-

wise, to the laws of the surrounding state. ms

The Congress has recognized in certain instances the desirability

of such similarity between the municipal laws of the state and those

‘ of the federal parcel. Since only the law in effect at the time of

the transfer of jurisdiction continues in force, future statutes of

the state are not a part of the body of laws in the ceded ,

area. Congressional action is necessary to keep it current. Con-

sequently. as defects become apparent legislation. is enacted

covering certain phases. This occurred as to rights of action for *

_:aeciderital death by negligence or wrongful act.® After this statute

was held inapplicable to claims under state workmen’s. compensa-

tion acts further legislation undertook to extend the provisions of

those acts to the places ynder federal sovereignty.’° With growing

Collins _v. Yosemite Park Co., 304 U. S. 518, 529-30; Jameg, v. Dravo Con-

tracting - Co>\302 U. 8. 134, 147- 49.

8 Murray v. Gerrick & Co., 291 U. &. 315, 318; Arlington Hotel Co. v. Fant,

278 U. 8S. 439, 445, 446, 454; Chicago, R. I. & Pac. Rk. R. v. McGlinn, 114 U. 8.

642, 546-47.

_. 945 Stat. 54, 16 U. 8. OC. $457 (1928); see Murray v. Gerrick & Co., 291

U. 8. 315, 319; Hf. R. Rep. No. 369, 70th Cong., 1st Sess. ; 69 Cong. Ree. 1486.

1049 Stat. 1938, 40 U. S.-C. § 290 (1936); see H. R. Rep. No, 2656, 74th

> Cong., se Gene. : ‘

, es Stewart & Co., Inc. vs. . Sadrakula.

frequency the federal government leaves largely unimpaired the.

“civil and criminal authority of the state over national reservations -

or properties.’!_ While exclusive federal jurisdiction attaches, state

“courts are without power to punish for crimes committed on federal _

property.'? This has made necessary the legislation which gives -

' federal courts jurisdiction. over these crimes." The tendency

toward a uniformity between the federal and surrounding state Ee

territory has caused a series of congressional acts adopting the state.

criminal laws.'*’ Through these concessions our dual system of gov-

ernment works cooperatively towards harmonious adjustment.

It is urged that the provisions of the Labor Law contain numerous

administrative and other provisions which cannot be relevant to

the federal territory. The Labor*Law does have a number of ar-

ticles.5 Obviously much of their language i is directed at situations

that.eannot arise in the territory. With the domestication in the

exeised area of the entire applicable body of state municipal law

‘much of the state law must necessarily be inappropriate. Some sec-

tions authorize quasi-judicial proceedings or administrative action

' and may well have no validity in the federal area. It is not a ques-

tion here of the ‘exercise of state administrative authority in federal

territory.1* We do not agree; however, that because the Labor Law

11 30 Stat. 668 (1898) (jurisdiction receded to states over places purchased

for branches of soldiers’ homes); 49 Stat. 668, 16 U. 8. & § 465 (1935)

(waiver of federal jurisdiction for historic sites); 49 Stat. 2025, 40 U. 8. C.

' $421 (1936) (same'for slum-clearance and low-cost housing projects) ; 49

Stat. 2635. (1936) .(same for resettlement and rural rehabilitation); 50- Stat.

888, $13(b), 42 U. S.C. § 1413(b) (1937) (same for acquisitions of U. 8.

Housing Authority),

‘12 Bowen ¢. Sietten: 206 U. 8. 19, 29; United States v. Unzeuta, 281 U. “8.

138; United. States v. Cornett, Fed. Cas. No.’ 14,867; Commonwealth v. Giary.

8 Maas. 72; People v. Hillman, 246 N. Y> 467.

13 Judicial Code -$§ 24, 27.

"14K. S. 5391; 30 Stat. 717 (1898); 35 Sfat.. 1145 (1909) ; 48 Stat. 152

(1933) ; 49 Stat. 394 (1935). %

15 Article (1) Short title; definitions; (2) The department of labor; (3) Re

view by industrial board and court; ( 4) Employment of children and "females; ;

(5) Hours of labor ;- (6) Payment - of wages; (7) General provisions; ‘(8) Publie

work; (8-a) Grade crossing elimination work; hours and wages; ( oF Immigrant

lodging houses; (10) Building cotstruction, ‘demolition and repair work; (1!)

Factories; (12) Bakeries and manufacture of food products; -(13) Manufacture

in tenement-houses ; (14) Mercantile and other establishmeats; (15) Mines and

tunnels; quarries; gompressed air; (16) Explosives; (17) Public safety; (15)

Miscellane “ous provisions; laws repealed ; when to take effect.

16 We do not therefore need to consider the authority of the state ‘adminis

trative officers. New York Labor “Law § 242. Cf. Oklahoma City v. Sanders,

94 F. (2d) 323 (C.C. A. 10). In this case an ene was obtained in the

ov

*

‘Stewart & Co., Inc. vs. Sadrakula, 5

is not applicable as a whole, it follows that none of its séctions are.

We have held in ‘Collins v. Yosemite Park Company" that the sec-

tions of a California statute which levied excises on sales of liquor

in Yosemite Nationa)Park were enforceable in the Park, while sec-

tions of the same statute providing regulation of the Park liquor

traffic through licenses were unenforceable.’®

But the authority of state laws or their administration may not

interfere with the carrying out of a national purpose.’® Where en-

forcement of the state law would handicap efforts to carry out

the plans of the United States, the state enactment must, of course,

give way.”

e —_— .

federal district court caine a a city and certain of its offieers from ‘enforcing

ordinances relating to licenses, bonds and inspections by daily arrests on ac-

eount of violations of these ordinances by a contractor doing construction work

on 8 low-cost housing project. The decree was affirmed by the cifcuit court of

appeals after consideration of the Act of June 29, 1936 which reads that ‘‘ The

acquisition by the United States of wr Ah _ property. , - + in connection

with any low-cost housing . ’ pro .. ‘shall not be held to de-

prive. any State or political subdivision enet of its civil and criminal juris-

detion in and over such property . . .’’ Except as affected by the act

just quoted in part, the area was federal territory through a comank statute.

The Court, speaking of the recession, said:

“It was not the purpose that the state should have: the right to exert police

power there through application of municipal ordinances on to licenses,

bonds, and inspections in the course of construction thereon of buildings by the

United States government, no such legislative intent or desire being indicated

by the act.’’

It also quoted with approval an excerpt from an opinion of the Director, Legal

Division, Fed€é¥al Emergency Administration of Public Works:

“T am, therefore, of the opinion that the state or local government may not

supervise the work of a contractor performing work on property owned by the

‘United States of a contract with the United States.’’

17304 U. 8. 518, 532° ’ ,

18 We do not overlook the language in 2 Sheng €. -Gerrick & Co., 291 U. &.

315, 319, called to our attention by appellant: : ;

“If it were held that beneficiaries may sue, pursuant to the compensation

law, we should have the incongruous situation that this law is in effective

and in part ineffective within the area under thé jurisdiction of the federal —

government. ’’

That quotation had. reference toa contention that the dependents of an em- |

ployee, killed on federal territory within a atate, might claim compensation

as beneficiaries under a state compensation act. The compensation fund, col-

leeted and administered by state officers, .was not effective in federal territory.

Of. Atkinson v. Tax Commission, 303. U. 8. 20, 25. As the fund was not aug-

mented by assessments against the federal contractor, the Court held the pro-

tedural provisions of the state compensation act did not apply. 7

‘19 Pittman v. Home Owners’ Corp:, 308 U. S. 21; Atkinson v. Tax Commis-

tion, 303 U. 8. 20, 23; James v. Dravo Contracting Co., 302 U. 8. 134, 147, 161;

United States v. Unzeuta, 281 U. 8. 138, 142; Ohio v. Thomas, 173 U.S. 276,

283; Fort Leavenworth v. Lowe, 114 U. 8S. 525, 531; Kohl v. United mn, 91

VT. 8. 367, 371-72; Thomson v. Pacific R. R., 9 Wall. 579, 591.

%® Anderson v. Chicago & N. ‘W. Ry., 102 Neb. 578,-ae-commentedt upon in

Vaited States v. Unzeuta, 281 U. S. 138, 144.

, Stewart & Co., Inc. vs. Sadrakula.

May it be said that the continued application of Section 241(4) of

‘ the Labor Law?! will interfere with the construction of the build.

ing upon this site? This is ‘like other squares in the city. There are,

of course; differentiations because of/its ow nership, but ownership

as such has nothing to do with the safety requirements, It is true

that it is possible that the safety requirement of boarding over

the steel tiers may slightly increase the cost of construction to th:

government, but such an increase is not significant in the deter.

mination of the applicability of the New York statute. In answer

to the argument that a similar increased cost from taxation would

‘make it diffien!t or imipossible’’ for the government to obtain the

service it needs, we said in James v. Dravo Contracting Company”

that such a contention ‘‘ignores the power of Congress to protect

the performance of the functions of the National Government and.

to prevent interference therewith through any attempted stat

action.’’ Such a safety requirement is akin tc the safety provisions

of. Maryland law which in Baltimore & Annapolis Railroad ¥.

Lichtenberg were held applicable to trucks of an independent

contractor ansporting government employees under @ contract

with the United States.

Finally the point is made ‘that a provision requiring boarding

over of open steel tiers is a direct interference with the government.

This is said to follow from the fact that the contract for the con-

struction of the post office is an instrumentality of the federal gov-

* ernment. As a corollary to this argument, error is assigned to the

refusal of the trial court to admit in evidence a clause of the cor-

-tract between the United States and the appellant reading, ‘‘ State

or Municipal Building Regulations do not apply to work inside the

Government's lot lines.’’*4 While, of course, in a sense the contrat

is the means by which the United States secufes the construction 0!

its post office, certainly the contractor in this independent operation

21 Note 2, supra.

22 302 U. S. 134, 160, 161.

234 A. (2d) 734 (Md.Y, 2ppeal @iemisned for want of a substantial fede ne

“ question; sub nom United States v. Ba}timore & Annapolis R. R., No. 78

October Term, 1939, decided December 18, 1939.

24 The entire section reads:

‘*22. Permits. The contractor shall without additional expense to, th

Government obtain all- required licenses, permits, ete, This applies to wort

outside the lot lines, the use of streets and sidewalks, the protection of publi

and traffic, connections to utility service lines, ete. State or Municipal Build

ing Regulations do not apply to work inside the Government ’s lot .lines.’’

‘aie & Co., es vs. Sadrakula. 7

does. not share any iniiabiaiiaiatal immunity. 23° Nor do we think

there was error in refusing to admit the clause of the contract as

to building regulations. The quoted sentence.is in a section of: the

contract relating to ‘‘licenses, permits, ete.’’ We are of the opinion

that it is- intended to relieve the contractor from provisions as to,

types of material, fire hazards and the like, which are covered: by

the New York City Building Code.’

- Such a safety regulation as Section 241(4) of the New York

"Labor Law provides is effective in the federal area, until such time .

98 the Congress may otherwise provide.”*

- Affirmed.

7 thie copy.

Test:

; ) ee oe Clerk, Supreme Court, U. 8.

- gp

3 James v. Dravo Contrasting Co., 808 U. S. 134, 152; Helvering v. Pro-

ducers’ Corp., 303 U. S. 376, 385.

_ %48 Opinions of the Attorney General 341, 348, 349, is not to the contrary.

It declared that Section 2 of a Nevada consent statute was clearly incom

patible wit! exclusive jurisdiction. The section read:

‘In the erection of such federal ‘building by contract or otherwise, or in

case of any subsequent reconstruction or. alteration of such building, it. is,

hereby reserved and provided that the state labor laws, the state labor safety

laws and the state health laws, shall apply to all persons, firms, associations or

rorperations having contracts for such construction or feconstruction as to all

Provisions ‘contained therein, and no contractor having any such contract shall -

have the right to claim to be or to declare himself to be a government instru

| mentality. ’”

The opinion however further ‘stated:

‘It is to be observed that there is nothing in what has been said concerning

Sections 2 and 3 of the Nevada Statute inconsistent with the doctrine that state

awe regulating private civi! rights (aa distinguished from state-criminal laws

) continue in force, as laws of the United States, on lands ceeded by

tonsent of the state to the United States, if not in conflict with the laws of .

the new sovereignty or the purpose for which the land %s acquired, until super-

" enacted by the United States. . . . The difficulty with See-

tions 2 and 3 of the Nevada Act is that they do not merely oceupy a vacant

felt until filled by the Federal Government—they withhold “and reserve juris-

dietion, present and future, over the matters specified in them, howsoever in-

tonsistent with existing or future laws of the United States. That precludes

etclusive jurisdiction from —— in the United States. *

o .

¢