# Appellees Brief — James Stewart & Co. v. Sadrakula > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386401_0247%3A6 ## Record - **Collection:** Supreme Court brief - **Document type:** Appellees Brief - **Published:** January 1, 1940 - **Citation:** 309 U.S. 94 ## Text , . ‘ s eee ‘a Ried @ . — - 3 ’ ’ ~ . i Pe cua od | 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 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 - * 9 ae ue ; ean os Mie ‘ yi ei Agta Ci SRI Da hi i aca canines cee + 9” ) * . ~ Ri aaies 505 > f ek RAR SS se EE RT GaN Te TR RRA Ra is Rie Sa Sd as 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 : 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. 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 SHR BEA ee yeas a5 ae RSE be ° sows Sahecew pe ee LPO AL EE AE Newt pet ath ose . 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 NN AL RE AER BASE OSES RS DOPE IGE OED OE e . , 33 7 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 . ¢ --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386401_0247%3A6. Public record. Not legal advice.