# Petition for Writ of Certiorari — Arkansas Public Service Commission v. Arkansas Power & Light Co. (No. 827) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386420_0301%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1959 ## Text | , fos Sg a a FILE COPY "FTF MAR 3171950 No. $27 | 7 ; _. DJAMES a BrOwNING, - st \ SUPREME COURT OF THE UNITED STATES ’ - OCTOBER TERM, 1959. » L. wsiined PUBLIC SERVICE COMMISSION and FIRST ELECTRIC eg ihe COOPERATIVE CORPORATION »........... Petitioners - Vv. a 4.7 “* . -f. _ ARKANSAS POWER & LIGHT COMPANY .. gai ° PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF ARKANSAS . } TOM GENTRY "117 National Old Line Building — Little Rock, Arkansas + Attorney for Petitioners... TREVATHAN PRINTING COMPANY. BATESVILLE, ARKANSAS = d “ A Na Arn 8 pe pee INDEX ‘ = Page Petition for Writ of Certiorari .... .......... ae Opinions of Triburials Below . . sic Niibe bak oe Seah wes 8 Jurisiiition: ~......jesce.ecsee. Cee errs ee cleeum 2 Questions Presented Tor Review - etkeebietaskeess “a Constitutional Provisions Involved Fe eneseenaces ia _ United States Statutory Provisions Involved .......... 4 Arkansas Statutory Provisions Involved hie. © | EE een ory See Puawaas o-? I, oO cnx sanity ss ceases es ae g. | I. The Decision of the ie Court Below Deprives. ee —_—— Cooperative of of Property Without -Due Process of Law in Violation of U. S. Const. Amend. RRR AR ACI Si TS AES By A 9¢ > II. The Decision of the Court Below Denies to the ey om __- Cooperative the Equal Protection of the Laws’ - - Guaranteed by U. S. Const.'Amend. XIV ..... 14 III. The Contract Between the Government and ; the.Power Company Made the Furnishing of Electricity to the Government by the Power Company Subject to Regulation by the Ark- . ansas Pablic: Service Commission .:.......... . 16 IV. Even if the Contract . Between the Power * Company and the Government Had Not Spec- _ -¥fically Provided that the Service Furnished — Under the Contract Would. Be Subject to Re- gulation by the Arkansas Public Service. ° Commission, This Commission~Still Would \ Have Had. Such Regulatory Authority ........ 21 rd . Conclusion eREsNevencschend ep Ans 6 get Olle sere 053 eae ? \ : * -. INDEX TABLE OF AUTHORITIES ‘ ae © Page Adams v. . United States, 319 U.S. 312........ eethcvee 22 ' Boston Elevated Ry. Co. v. Commonwealth, | . ; 310 Mass. 528, 39 N. E. 2d 87 emcees jet egaos a ae Corporation’ Commission ‘v. Lowe, 281 U. S. 431, 5. ia, ail Ginsberg v. Liridel, 107 F. 2d 721 ......... ae In re Cosgrove’s Will, ‘225 Minn. 443, 31 N. W. 2d o....8 _ Johnson v. Maryland, 254 U.S. 51°....... Pe MOLE, 28 Leslie Miller v. Arkansas, 352 U.S. 187 ........ .- " Lovell v. St. Louis Mut. Life Ins: Co., 111 U. S. 264 ..... 12 - New State Ice Co. v, Liebman, 285 U.S. 262 ...... 6.06... 9.0 Olin Mathieson Chemical Corp. v. Francis, E -- 134 Colo. 160, § SD Bee er errr a 13 _. Penn Dairies v.-Milk Control Commission, - | 318 U. S. 261 ... : SUPREME COURT OF Se UNITED STATES OCTOBER TERM, 1959 : t _ ARKANSAS PUBLIC SERVICE COMMISSION and FIRST ELECTRIC _ ea COOPERATIVE CORPORATION ........... Petitioners . | ARKANSAS POWER & LIGHT COMPANY ... Respondent PETITION FOR WRIT*OF CERTIORARI . | « ; TOTHE .. ee a ee SUPREME COURT OF ‘ARKANSAS ; 3 \ Gay oes oe The petitioners pray that a writ of certiorari issue to review the decision of the Supreme Court of Arkansas and: the denial by that Court of the petition for. rehearing in this matter, and for cause state that: — ay Opinions of the Tribunals Below The Supreme Court of Arkansas rendered its decision , in this matter on November 2, 1959, by a 4 to 3 vote revers- ing the decision of the Arkansas Public Service Commis- - Sion and the decision®of the Circuit Court of - Pulaski: County, Arkansas. The decision of the Supreme Court of Arkansas became final upon that court’ s denial of a petition ‘for rehearing of the matter on. January~11, 1960. The ma;. “Ss . 20 ees 1 jority and dissenting opinions” of thé Supreme Court of Arkansas, as yet unpublished, are ap also the decisions of the Arkansas’ ‘Pablic ‘ Service . Com- - mission and the Circuit. Court of Pulaski aati Arkansas. ‘hereto, as are. J URISDICTION } ‘The statutory provision believed to oo jurisdic: | tion on this ‘Court i is Title 28, United States mv, § 1257 a ). _ aay PRESENTED FOR REVIEW ‘= The questions pypsented are.as follows: (1) Cana judgment or consistently with due pro- cess of law, when the direct effect thereof is to nullify the rights of a. rural electric cooperative corporation flowing from. (a) a contract between’ the rural electric -cooperative corporation and a public utility whereby the public utility agrees to supply the rural electric co- operative corporation with electricity for. sale in the ~ latter’s territory allocated’ to it by the. state regulatory body, and (kh) a certificate of public convenience and necessity granted by the state regulatory body to the - rural electric cooperative corporation: to supply with ° “electricity the t itory iri question, merely because the public |utility . voluntarily contracts with the, Government to kupply it with slectricity for use in the aforesaid territory? . (2) Can a “judgment ‘stand, consistently with equal protection of the-laws, when the direct effect thereof ? &- 7 | iP See 3. \ is to transfer aa rights of a rural electfic cooperative corporation without.consideration’ to a public utility ; under the circumstances stated in Question (1)? . (3) Has the Government submitted its purchase ” | eléctricity for the Little Rock Air Force Base to re-— gulation by the state regulatory body, irrespective of | ‘ the Supremacy Clause of the United States Constitu- tion, by virtue of its contract with the public utility involved, the. Arkansas Power &' ‘Light Company? (4) ~—e the Dunneinaes Clause of the. United States ~~Constitution operate to oust the State regulatory body . of jurisdiction with-respebt to an area owned by the . Government, but as to which the Gov ernment has never acquired jurisdiction? 2 ee te ee 7 AY beg ’ Ny 7 7 ice ole | a CONSTIBUTIONAL PROVISIONS INVOLVED — (1) United States Coristitution — Amendment XIV: i ° | ‘ ae, (a) Due Process Clause. - (c) Equal Protection Clause. & (2) United — Constitution _ Article VI: + (a) — Clause. UNITED. STATES STATUTORY ‘PROVISIONS INVOLV ED | (1) — 10, United. States Code, $9773... a i : Se, ° ie (2) “Title 40, United tates Code, § 255. oe %) Title 50, United States Code, § 491. ARKANSAS STATUTORY PROVISIONS INVOLVED (1) Act 571, Ark. Acts of 1919, 8.6, as smended by Act ; 124, Ark. Acts of 1921, §.3 (Ark. Stats. (1947) -§ . 73-15 (a) J. 7 ( 2) Act 342, Ark. Acts of 1937, $ 2, as amended by Act 85, Ark. Acts of 1955, § 1, as amended by Act 103, Ark. Acts of 1957, *§. 1 [Ark. Stats. (1947) _ § 77-1102}. = | . *(3) Act 342; Ark. Acts of 1937, § 31, as amended by. ‘Act 85, Ark. Acts of,1955,§ 2, as amended by Act 103, Ark. Acts é6f 1957, §2 seal Stats. (1947) § 77-1131]. 4: | : .* ;. . = ~ . 5. = STATEMENT The First Electric Cooperative Corporation, a. rural electric cooperative my Rte (hereinafter referred to as © ' the Cooperative), was areas in Pulaski County, Arkansas, allocated to it by a cer- tificate of public convenience and necessity by the Ark- ansas Public Service Commission, the state regulatory roviding electricity to consumers in body (hereinafter referred to as the Commission), and.. ° the Arkansas Power &, Light Company, a public pity (hereinafter referred to as the Power Company), was _ providing electricity to consumers yy. areas in’ Pulaski Coun- ty, Arkansas, @Jlocated to it by the Commission, when the United States Government (hereinafter referred to as the Government) established the Little Rock Air Forc® Base "near Jacksonville in Pulaski County, Arkansas.. This air base was established in an area, a part of which had been allocated to the Cooperative, and a part of. which had been allocated to the Power. Company. When: construction was’ begun at the air base, the Cooperative, the Power Company, and all others having any property in the air-base area were required by the Government to remove it. Both the Cooperative and the Power Company were paid for any interest they had in the - land and were compensated for the removal of their othe property. . Ss . . . The location of the air base and the territorial -alfoca- © tions to the Cooperative and to the Power Company are shown in Exhibit 2 at p. 283 of the transcript. ' The first. construction of ghe air base was entirely within the area allocated to the Power Company, and, of course; the Power Company was.entitled to serve any con- sumer of electricity within this area. However, during the / ray re 0 o 6 latter part of "1957, the Government, in contemplation of. the construction of permanent housing facilities for air base personnel within. the air base area, but in the area with respect to whicli the Cooperative held a certificate of public convenience and necessity, negotiated a contract with the Power Company by which the Power Company agreed to provide electricity for use by the Government in this area: The contract is dated August 80, 195% with amend- - _ment dated October 4, 1957 (T. 274) This confract spec- ifically prov ided that the Commission would regulate the service prov ‘ided thereunder. The. ue provision of the contract is as follows: fe’ “5. PUBLIC REGULATION AND. CHANGE OF RATES. (a) Public regulation. Service furnished under this contract shall be, subject to regulation in the manner and* to the extent prescribed by law by ‘ any, Federal, State, or local regulatory commissiort having jurisdiction. * * * (b) Change of rates. * * *.” (T. 249) : - _ The transmission facilities jnside_gf the air base bound- ~ aries are entirely owned by the Government and _ the ‘ Government obtains electricity outside of the- air base boundaries at a substation of the Power Company. The:sub- ‘ statiorfis within the area allocated to the Power Company. - In short, the Government receives the electricity from the Power Company within the area allocated to the Power -° Company and transmits such electricity over Government facilities into the area allocated to the Cooperative where it is used by the consumers. Upon learning that the Power Company intended to furnish electricity for that ,part of the housing project of the air base which is within the — _ area allocated to the Cooperative, the Cooperative on. CANE? ¥ ‘t be ei “he 4 ste 5 hatte ! September ‘ 23, 1957, filed its complaint with the Cormmis- sion, stating that the Power Company had commenced | serving and offering to serve. or provide: electricity in the territory which had previously been allocated to the Co- operative in violation of the certificate of public conven- lence and necessity theretofore granted to the Cooperative, and contr. ry to the laws of Arkansas. As‘ a result of the hearing held .before .the Commis- sion on the complaint of the Cooperative, the Commission found that the respective parties had been allocated ' cer- tain territories by certificates of public’ convenience and necessity and that there was no reason to change the ter- ritorial allo€ation theretofore made. The Commission fur- ther found that when the Power Company supplied elec- ‘tricity to the Government to transmit into the territory allocated to the Cooperative,. the, Power Company was violating the laws of Arkansas, the certificate of public con- | venience and necessity theretofore granted to the Coopera- tive and the contract between the Power Company and the Cooperative. Inasmuch as the Power ‘Company was fur- nishing electricity to be used in‘the territory allocated to the Cooperative, the.Commission ordered the Power Company to meter‘the electricity furnished for use in the Cooperative's territory and that the bills between the Co- operative and the Power Company be adjusted so‘that each ° might be made whole for services and electricity fur: nished in their respective areas according to the contract between the Power Company and the Coonerative. The contract between the Cooperative and the Power Com- pany provides that all the electricity sald by the Coopera- . tive in its legally assigned territory shall be purchased from the Power Company and the Power Company shall. fur- ( >} . ae ee ete ee ee Eve . ‘ 8 . nish the Cooperative all of the electricity it needs to oo ‘ply its legally assigned territory as follows: (1) The Company agrees to sell and deliver to the Consumer and the Consumer agrees to purchase. and _ receive from the Company all of the_electric power—+ - and energy which the Consumer may require for re- sale to serve the electric requirements of Consumer’s electric users in its legally assigned territory during _ the term of this Agreement (T. 316). .” The order of the Commission was appealed by the Power Company to the Circuit Court of Pulaski County, - ich Court. affirmed the order of the Commission. The Power Company appealed these decisions to the Supreme Court of Arkansas, and-by a 4 to 3 vote that Court re- versed the: holdings of the Commission and the Circuit . Court of Pulaski County on a purely federal question. The federal questions presented in this petition were raised in arguments made on the pleadings and testimony .-before the Commission, the Circuit Court of Pulaski County, -and'.in the briefs submitted and arguments made before the | Supreme Court of Arkansas. When the Supreme Court of | Arkansas reversed the Commission and the Circuit Court of Pulaski County, a petition for rehearing with brief. in sup- port thereof was filed in which these federal questions were argued at length. The Supreme Court of Arkansas held, in effect, that the Government could contract with anyone it chose to furnish electricity to the air base regardless of the contract between the Power Company and the Coopera- tive, the certificate. of public convenience and necessity held by the Cooperative, or any law of Arkansas by virtue ' of Title 10, United States Code, § 9773, and the. er Clause of the United States Constitution. ** é gH i ARGUMENT 6. £ THE DECISION OF THE COURT BELOW DEPRIVES. — -— _THE COOPERATIVE OF PROPERTY WITHOUT DUE PROCESS OF LAW IN VIOLATION OF U. §. CONST. AMEND. XIV. Bee When the Cooperative ‘was granted its ‘certificate of - . public convenience and -necessity to provide the area in- . volved with electricity, and in reliance thereon..expended its:money for facilities to supply the area, its grant became a valuable property right. : Act 343, Ark. Acts of 1937, § 2, as amended by Act 85, Ark. Acts of 1955, § 1, as amended by Act 103, Ark. Acts of 1957, 1 [Ark. Stats. (1947) § 77:1102] provides, in relevant part: , ae ees , ae and. said Corporation shall not. be ousted from service in said rural area or deprived of the right to continue to provide electric service in said rural area subsequent to the granting of a certificate of convenience and necessity by the Arkansas Public _. Service Commission.” - ere It is common knowledge that certificates of public con- venience and necessity are bought, sold, traded, mortgaged, and otherwise dealt with every day. New State Ice Co. v. , Liebmann, 285 U..S. 262: Cofporation Commission v. Lowe. are. 281 U.S. 431; Wright v. Nagle, 101 U.S. 791; 23 Am. Jur.. . Franchises, §§ 5 and 8. Of course, such transactions are subject to the approval of the regulatory body having juris- diction over such matters for the protection of the public, . but in no instance has this Court ever sanctioned the out- . : > ' 10 right confiscation of such property. Yet, this is exactly ati the Supreme-Court of Arkansas has.permitted the Power Company to do; namely, to confiscate the property of the right. In this case, under the decision of tec court below, the contract for electricity which the Power Company entered into wiin the Government deprived the Coopera- tive of its property —— its certificate of public convenience and necessity, which it had held for many years, to serve a certain aréa with electricity and its rights under the con- tract with the Power Company. This result, obviously, was unintentional on the part of the Government, but the Power to the Government ‘from whom it received its electricity as tue price and service. were the same. This fact is de- monstrated by the Government's nonintervention in? and ’ failure to, take the slightest notice of, this iitigation, even though it was duly notified of the . Proceeding by the Sommission. Cen > S The decision of the Supreme Court of Arkansas not only makes a gift of the Cooperative’s assigned territory tainly does not follow ‘that the Power Company may with oe violate its contract in the bie . Cooperative. Even if it be true that the Government’ may | contract with whom it pleases to supply it with whatever . it needs, it may not do so by, taking from another a vested — Company ‘knew better. Naturally, it made no difference . . to the Power Company: contrary to. Act. 342, Ark.. Acts — of 1937, § 2, as amended [Ark. Stats. (1947) § 77-1102]. . but it-sanctioris the Power Company’s flagrant breach of its ‘aforesaid contract with the Cooperative. For, even if the. Government may contract with anyone it chooses, it cer- "f° Suppose John Doe holds a patent for a particular type of airplane motor. Richard Roe, without license from John Doe, contracts. with the Government to manufacture for the Governmeni trie éxact type of airplane motors covered , by the patent. Does the fact that the Government can con- -*. tract with whom it pleases confer on Richard Roe the right to infringe on John. Doe's patent? Of course not. The no- tion is ridiculous. There. is no difference in principle be- - tween this example and the present case. The Power Com- pany, by its contract with the Gov ernment has | ‘infringed - . on the rights of the Cooperative to serye the area, and the _ court below in its decision has given the Power Company the right to violate its contract with the Cooperative, has given the Power Company the right to y iolate the quoted © statute of Arkansas, and) has given the Power Company the right to ignore the ottificate of public ~onvenience and. necessity granted to it by” the. Commission contrary to . the Due Process Clause of the United States Constitution, Amendment XIV. . . If the Cooperative must be ousted ‘from serving its ’ legally assigned territory, then ‘it should be compensated commensurate with its ‘loss. The contract of the Power Cmpey and the Cooperative provides inter alia: 1) The Company agrees to sell and jt to the . . “Consumer and the C Consumer agrees to purchase and receive from. the Company all of the electric power and Ty, which the Consumer may require for re- sale to serve the electric requirements of Consumer's - ao eem scence ns® a ha ee 12 7 , electric users in its leguily mangas territory during the term of this agrewment ee, mcs 316) This contract was in existence at the time*of the events ; forming the basis of this litigation and it is still in effect. . Naturally, this: contract contains -no éxpress promise by the Power Company’ that it will not go behind ‘the — _ back of the Cooperative and make a contract with the “Government. which will rob the Coopetative of the bene- fits therepf. However, such a promise is as much a part _ of the contract’ as it would be if written into it in capital . letters. One of the mosteclementary principles of contract _ law is that every contract contains an implied covenani _that neither party shall do anything which will*destroy or injure the other party's right to receive the fruits of the * contract. Lovell v. St. Louis Mut. Life Ins. Co., 111 U.S. 264, United States v. Behan, 110 U. S. 339. Also see generally, 5 Williston on Contracts (Williston & Thompgon Ed. 1937) . § § 1293, 1293A, 1318; 17 C. J. S., Contracts, § 328. _ The ‘court below has ignored the principle stated by these’ authorities in giving its blessing to the Power Com- pany’s breach of the implied condition of its contract with the’ Cooperative thatsit. should do nothing to prevent the Cooperative from benefitting thereunder. The Cooperative . has a right to benefit on behalf of its members from the re- saie of electricity for use in its legally assigned territory, and the Power Company had ‘no right, irrespective of the powers or immunities of the Government, whether direct- * ly or indirectly, to deprive the Cooperative of such benefits. 13 “This i is not a case when the Power Company can rely on the supervention of the powers of the Government as an excuse for failing to. perform its contract, because the Power*Company was under no compulsion, instead a . voluntarily agreed, with: the Government to serve. elec- tricity to the Cooperative’s territory. See Williston on Con- tracts. (Rev. Ed. 1938) $ 1939; Restatement, Contracts, nat § 458, Illustration 2. - . \ “The contract t tights of the Cmineinin are property within the meaning of due prgcess. Boston Elevated Ry. Co., v. “Commonwealth, 310 Mass. 528, 39 N. E. 2d 87; Olin” Mathieson Chemical Corp. v. Francis, 134 Colo. 160, 301 P. 2d 139. The guaranty of due process. prohibits the taking =) of one person's ‘property and giving it to another con- trary to settled usages and modes of: procedure. Ginsberg v. Lindel, 107. F. 2d 721. A taking of property is no less lacking in due process when done by the courts rather than some othe? governmental agency. In re Cosgrave’ s Will, | 225 Minn. ‘4438, 31 N. W. 2d 20. . —_ I. THE DECISION OF THE COURT BELOW DENIES _ TO THE COOPERATIVE THE EQUAL PROTECTION: OF THE. LAWS GUARANTEED BY U. S. CONST. | Equal protection of the laws. requires that all persons _ subject to the laws shall be treated alike, under like cir- cumstances and conditions, both. in priv ileges conferred’ and in liabilities imposed. State of Louisiana ex rel. Frances v. Resweber, 329 U. S. 459. It is a’ guaranty. of equality of _ treatment of all. persons in the same place agd under like | \circumstances in pursuit of their lawful businesses. People ZN Montgomery, 47 Calif. App.. 2d 1, 117 P.: 2d 437. The rights protected by this guaranty include the right to enjoy, own, and dispose of property. Shelley v. Kraemer, 334 U.S. I. ‘ * ‘ « o ty - . The guaranty applies not only to legislative and execu- “tive action, but to judicial action as well. Shelley v. Kraemer ' supra. Therefore, a‘ discrimination against the Cooperative . in favor of the Power Company is as much a denial of equal protection when done by the Supreme Court of Ark- ansas as it would be if done by the state enacts or _ executive branch. : _ There is no evidence whatever in the record of this. ‘ease which justifies the taking of the property of the. Co- operative and bestowing it on the, Power Company. Yet, 15 this is the direct effect of the decision- of the court below, and this is a result which the guaranty of equal protec- . tion is intended to prevent. Thus, unless it can be made to: appear that the Cooperative | somehow stands on a legal basis inferior to the Power Company in a way which war- fants a difference in treatment, then the decision of the court below. violates the guaranty of = Protection of the laws. x 2 °9 Ww ey a ne ae et tse een Ne cr tee Peareee cee ‘ey oS: 16 et er eee THE CONTRACT BETWEEN THE. GOVERNMENT | AND THE*POWER COMPANY MADE THE FUR- NISHING OF ELECTRICITY TO THE .GOVERN: - MENT BY THE POWER COMPANY SUBJECT TO VICE COMMISSION. t A The Secretary of the Air Force is, given specific au- : thority to establish air bases under the terms and provisiong: - of Title 10, United States: Code, § 9773, and Subsection (f) of that statute provides as’ follows: : “At each air base or depot established under this sec- . tion, the Secretary shall remove or remodel existing a struetures as necessary; do necessary grading; and pro- vide buildings, utilities, communication systems, land- - ing ‘fields and mats, roads, walks, aprons, docks, run- ways, facilities for the storage and distribution of am- munition, fuel, oil, necesgary protection against, bombs, and all appurtenances to the foregoing.” (Italics sup- plied) ~. : ‘It thus: appears that’ the siaiis ‘of the Air Force is empowered to provide electricity for the Little Rock Air ‘Force Bast. In doing so he entered into a contract with the Power Company for that. company to supply such electricity. This contract specifically provided that -the.ser- - vice “furnished thereunder should be subject to regula- — _. tion by the Arkansas: Public Service Commission, as that is the . reBylatory commission in Arkansas Ahaving jurisdic- tion ovér such matters. The fontract an in pertinent ” part, as follows: 6 REGULATION BY THE ARKANSAS vicinal emma ; ; . . . a e “4 Sa . oe oe A AG Deen se eer ies eee emer pee tenes Teen ay em een eR ae ONAN a ° ‘ e . - ° . e ‘ ° . ’ a > RAGE MCE TIE ow miniemcmagrmenes 17 * 1g, i and Change of Rates. (a) Pub- ° "lie regifatiom Service furnished under this. contract shall be subject to regulation in the mannemand to the | extent prescribed by law by any Federal; State or local, « regulatory commission havirig pea “> (T. 249), (Italics supplied) - There is Qo question but, that the Government, under the circumstances, may submit to state regulations of the kind involved. tewart & Co. v. Sadrakula, 309 Y. S. 94.. - Moreover, it is the settled policy of the Government to do so. This is illustrated by Title 50, United StatenEpde $0 491, which is as follows: “The Secretary of the Air Force is authorized to esta- blish and dévelop' within and ‘without the continental . limits of the United States in fulfilling the air de- ' fense responsibilities of the Department -of the Air. . Force such land-based air warning and control - in- stallations and facilities, by the construction, installa-. tion, or equipment of temporary or permanent public — works, including buildings, facilities, appurtenances, . utilities, and access roads, and to provide for necessary ' gdministration and planning therefor, without regard _ ‘to Section 1339 of Title 10, Section 529 of Title 31, and tion 259\of Title 40, as he may deem necessary ins e interest of national security: Provided, that not to _exeeed $85,500,000 shall be appropriated for the con- . ‘struction of public works authorized by this section. “The Secretary of the Air Force is authorized to pro- - cure communication services required for the semi- automatic ground environment system. No contracts ‘for such services may be for a period of more-tharr ten’ years from the date communication service. ar: first, / ? ©} ‘J? fo oe tll . . ; ' . aA - lin. 18 furnished under ‘such contract. The aggregate, con- tingent liability of the Government under the termina- . tion, x de ns of all-contracts authorized hereunder. may not e a total of $222,000,000 and no fermina- tion payment shall be final until audited and approved _ by the General Accounting Office which shall have access to such carrier records and accounts as it may- deem necessary for the purpose. In procuring such services, the Secretary of the Air Force shall utilize to the fullest extent practicable the facilities and’ cap- abilities of communication common carriers, including - rural telephone cooperatives within their. respective ‘service areas and for power suppty, shall utilize to the fullest extent practicable, the facilities and capabilities of public, utilities and rural electric cooperatives with- * in their respective. service areas. Negotiations — with communication common carriers, including coopera- tives, and representation in proceedings involving such carriers before Federal.and State regulatory bodies where such negotiations or proceedings involve” con- tracts authorized -by this paragraph shall be in -ac- cordance with the provisions of Section 481 of Title 40.” (Italics supplied) | ° ‘ 7 4 * The meaning of the ‘language used in ‘the contract be- tween the Government and the Power Company is _ clear and unambiguous. The caption, “Public Regulation and Change’ of Rates” indicates-beyond cavil that the con- ‘tracting parties understood that the paragraph related to two Separate, distinct matters, i. e., (1) regulation, and (2) ‘change of tates. What else could the conjunction “and” import? Why .in the name of reason would the parties em- ? : ° 7, ~ 19 ee , . : _ ploy the term if they did noi intend it to mean what every school child apprehends? Why, if the parties intended only - . e . ° . © term, “public regulation”? Can _,it be said that the term may be ignored, that it has no meaning, that- it is a mere superfluity? Rha aces, SWE 4 ~ The language of the contract is obviously that of a draftsman for the Government, for it is a standard form, i. -e., DA AGO Form R-5629, I July 1950. (T. 246) Can it be ‘. assumed that the contract was hastily drawn or that, the _ draftsman and/or the Governitaeht wan be charged with in- » competence inthe art of draftsmanghip? Can the agents of .° the Government be charged with ignorance of utility re- _* gulation? Of course not. The mere asking of these ques- tions compels .a negative answer. The reason for this provision is obvidus. The Govern- nent wanted this service to be furnjshed, dnd if there was © any dispute about it, then the digpute should be settled ” by thgtregulatory commission having jurisdiction. That is ’ exactly what was done in the case at bar. The Cooperative was entitled to furnish electricity to this area under its’ certificate of public convenience and necessity granted by the Commission years ago. The Power Company had enter- ed into a contract’ with the Cooperative to furnish the Cooperative all the electricity it needed to supply the users in its assigned area. Therefore, when the Power Company . furnished the Government the electricity to use in this area the Power, Company violated not only the certificate of to provide for “change of rates,” did they employ the - | 20 . public convenience and. necessity of the Cooperative grant- ed by the Commission, but also violated its contract. with the Cooperative to furnish to it the electricity td be used in its area. When this happened the matter was placed be- fore the regulatory commission having jurisdiction of the mattef, the Arkansas Public Service Commission, exactly as agreed on in the coftract between the Power Company and the Government. The Arkansas Public Service Commission rule’ that _ . the Power Company was selling electricity in the area as- - signed to the Cooperative in violation of its contract with the Cooperative, the certificate of public convenience and necessity granted to the Cooperative, and in‘ violation of the Iaws of Arkansas, ari that the Commission had juris- ’ diction over the matter. This was so not only because the Power Company by statute, was subject to its jurisdiction, but also because of the contract provision involved. The Commission sought to regulate the service furnishéd under this contract so that both the Power Company and the Co- operative would serve their respective areas and the Government. would receive uninterrupted service to the air base. The Circuit Court of Pulaski County affirmed this action, but the Supreme Court of Arkansas held that the Commission had no jurisdiction because the Govern- ment was a party to the contract with the Power Com- pany. The holding of the Supreme Court of Arkansas is, therefore, in plain violation of the contract provision fixing — the jurisdiction as aforesaid. ~ . EE ee — al | Iv. | | ‘EVEN IF THE CONTRACT BETWEEN THE POWER COMPANY AND THE GOVERNMENT HAD NOT SPECIFICALLY PROVIDED THAT THE SERVICE FURNISHED UNDER THE CONTRACT WOULD BE SUBJECT TO REGULATION BY THE ARKANSAS © PUBLIC SERVICE COMMISSION, THIS COMMIS- ‘SION STILL WOULD HAVE HAD SUCH REGULA- TORY AUTHORITY, a ae The denial by the Power iia that the ‘dst tive had any present right or franchise to serve any of the air base area because such area is now the property, of the Government and ngf subject to any state law or regulation is fallacious even if the contract had not spec- ifically provided that the. Commission should have such jurisdiction. . ; G 25 ““Gince the Constitution has left Congress free to get aside local taxation and regulation of government c6n- _ tractors which burden the government, we see no et i“ “3 " basis for implying from the Constitution alone a re- striction upon, such regulations which Congress has not seen fit to impose, unless the regulations are shown » to be inconsistent with Congressional. policy. Even in — the case of agencies. created or appointed to do the government's work we have been slow to infer an im- munity which Congress -has not granted and which . Congressional policy does not require. Reconstruct:on Finan€e Corp. v. Menihan Corp., 312 U. S. 81, and cases cited: Colorado Bank v. Bedford, 310 U. S. 41, 53, and — __cases cited; cf. Baltimore National Bank v. Tax*Com- ~ mission, 297 U. S. 209°. . .” 318 U. aie 269.° Pe eR ~~ “Hence, in the absence of some evide sce of an inflex- ible Congressional policy requiring government con- tracts to be awarded on the lowest bid despite ‘non- compliance -with state regulations otherwise applica- ble, we cannot, say that the Pennsylvania milk re- ~ gulation conflicts with Congressional legislation or policy and must be set aside merely because it increases the price of milk to the government. It would be no more than speculation for us to “say that Congress would consider the government’s pecuniary interest as “which the state concededly ‘had power to enact, be- | a purchaser of milk more important than the interest asserted by Pennsylvania in the stabilization of her milk supply through control of price. Courts . should guard against resolving these competing considerations of policy by imputing to Congress a decision which quire clearly it has not undertaken to make. Further- more we should be slow to strike down legislation . a. 26 | cause of its asserted burden on the federal govern- *. ment. For the state is powerless to remove the ill ef- fects of our decisions, while the pational government, which has;the ultimate power, remains free to remove the burden.” 318 U. S. at 275. _In the case at bar, the Gov ernment was not a party to the proceeding. No penalty was. sought against the Govern- ment, nor Was t -:re any attempt to order the Government to do anything. -— , This is a proceeding instituted by the Cooperative against the Power Company to prevent the Power Com- - pany from encroaching on territory which had been as-. | signed to the Cooperative by the state regulatory Commis: sion. In its decision, the Commission did not attempt to ail ca : , ’ but’ merely enforced the regulations of the Commission _ and the laws of Arkansas with regard to the rights of the - _ Cooperative:and the Power Company and with regard to . o the contract between them. The decision of the Commission directed no prohibi- tion against the Government or its officers, and did not - disturb or purport to disturb the contract which the Govern- ° ment had with the Power Compan¥ to furnish. electricity to the air base;.nor did it have any effect on the price the Government agreed to pay for electricity. There is no bur- den, ecohomic or otherwise, placed upon the Government _by the decision of the Commission. The Commission was. merely applying the law of Arkansas to an Arkansas pub- lic utility. The utility is now claiming it is not subject to Arkansas law since it has a contract with the Govern- ment —-*though no part of the contract is performed ‘or to be performed on the air base. -~ ° . . e under the laws of Arkansas. « ° Lal 2 . 28 : | necessity, and the contract between the Power Company and the Cooperative with regard to furnishing electricity. - The case at bar is wholly unlike the situation in tne case of Public Utilities Commission of California v. United ' States, 355 U. S. 534. In that case the California commission’ ” ‘required any contract for negotiated treight-rates between - the Government and the carrier to be first approved by . the California commission before such contract could be effective. é Nothing like. that exists in ‘the case at bar. The Ark- - ~ ansas Public Service Commission did not subjeet the .con- tract. between the’ Power Company and the Government to its proval as a condition to its validity or effective- ness, nor did it place any requirement upon the Govern- ment or ‘the Power Company before they’, could enter into a contraet for electricity. ° The case of Johnson v. Maryland, 254 U. 8 51, also: relied on by the ceurt below is beside ‘the point. n that - - case the state of Maryland sought to require J ohnson, a: truck driver for the Post Office Department, to comply with a state statute that he satisfy a state officer that he was competent to perform the work for which he was em- ployed by the Government to do and to pay a fee to the \ state for permission to do so. This Court in that case held that the Maryland statute required qualifications in addi- _.tion to those established by the Government. and was . therefore invalid as applied to this employee of the Gov-. ernment. The situation in the case of Leslie Miller v. Ark- ,ansas, 352 U. S, 187, is totally different from the situation ; here, for.in that case the state of Arkansas attempted to - require a contractor of the Government to: ‘meet certain *. + @ eae 23 ; state requirements before he could perform work for the Government in Arkansas. It was held that this would, give the state’ s licensing board a virtual power of review _. over. the Government’s determination of “responsibility” | ‘and’ would thus frustrate the expressed Government policy oftselecting the lowest responsible bidder.. © In the instant case no attempt was made to review, approve, supervise or in any way control or regulate the __ power of the Government to contract with whom it pleased. * The Commission held that the Power Company could not violate its contract with the Cooperative and ignore the laws of Arkansas merely because it had a contract with the Government. As the Cooperative held a valid certificate of public convenience and necessity under the laws of Arkansas to * supply electricity to a certain area and the Cooperative had a valid agreement with the Power Company to fur- nish the Cooperative the power to serve the area assigned 3 to it by the-Arkansas Public Service Commission, the Pawer Company was simply ordered to keep a separate meter record of electricity supplied to the respective ser-— vice areas and, in effect, to account to the Cooperative on | the basis ef the meter record. This, ‘the Commission cer: © tainly. had the power ta. do. This, it is believed, the court: below would admit — but,- unfortunately that court com- __\,.~pletely missed the point. : oe CONCLUSION For the foregoing peasons it is believed that the rights of the petitioner, First Electric Cooperative Corporation, ‘under the United States Constitution, specifically the Due Process and Equal Protection Clauses of the Fourteenth Amendment thereto, have been violated, and that.therefore this Court should issue the writ of certiorari as prayed to review the decision of the Supreme Court of Arkansas, and thereupon to reverse it with directions to reinstate the decision of the petitioner Arkansas Public Service Com- . mission as approved by the Circuit Court of Pulaski ' County, Arkansas. - : RESPECTFULLY SUBMITTED, TOM GENTRY ‘117 National Old Line Building | - ‘Little Rock; Arkansas Attorney for Petitioners Dated: March 3, 1960 ‘a 7 31 APPENDIX . * ARKANSAS PUBLIC SERVICE COMMISSION _ PRESENT: , Lewis M. Robinson: Chairman _At a session of the Pub- J. M. Malone, Commissioner lic Service Commission - __ John R. Thompson, Commissioner held in its. offices in Little Rock, Arkansas, e* . on November 25, 1958. FIRST ELECTRIC COOPERATIVE. —s _ CORPORATION cy el . Complainant ) . Vs. .. | &&#F or No. U-1285 ARKANSAS POWER & LIGHT co. . "-. . — ‘Defendant ORDER tad a This case inv olves the complaint of the. First Electric . Cooperative Corporation, hereinafter referred to as “First Electric”, complaining against the Arkansas Power &'Light Company, hereinafter referred to as the “Power Company serving electricity in a territory which was allocated by this Commission to “Fir— Electric”. This allocation of ter-. ritory has never been-changed by the Commission. The ser- _ vjce complained of is furnished the United States Govern- * ment; hereinafter referred to as the “Government”, at what is known as the Little Rock Air Force Ba— - Before the Air Force Base was icc cated upon the territory in ‘ dis- “pute, the First Electric was serv ing electricity and the . Power Company was serving electricity in their réspec- 32 tive divisions of. the territory. Both the First Electric and © the Power Company quitclaimed by identical instruments, except as to description of power lines and real éstate, all of their property~rights in the Air Base territory to the’ Government at the time of the commencement of the building of the facilities. In the course of the develop-. ment by the Gov ernmeht of its Air Force Base, -it develop- ed what is referred to in the evidence as a’ housing area. This housing area is lovated along either, side of the line | _’, Separating the territory of the First Electric and the Power Comgany as allocated by this Commission. ‘An issue developed in this matter to ‘the effect that '. the First Electric, by the quitclaim deed given to the Gov- ernment, which is Exhibit 3, abandoned and forfeitegl its ; Certificate of Convenience and Necessity granted by this Commission to serve in ‘the: territory. ‘ = - The language of this po is not anaiide of this interpretation and the intention of the parties thereto can- not be so found. Exhibit 7 in this record is the contract referred, to in said deed, which deed is referred.to above as Exhibit 3. Exhibit 7 consists of a contract between the __ First Electric and the Gov ernment, dated May 20, 1954, and be “numer DA- 03- -05(-eng- -2396. ° * r . “Section 1 (a) of this contract is as follows: “(a) The Owner shall furnish all services, labor, ma- « * terials, tools, and equipment necessary to perform the’ *. relocation and ‘or alterations of the following-described © * facilities and shall relocate such facilities in accordance with the drawings, schedules, or. spectfications hereto attached and made a part hereof. designated as’ Ex- hibit A.” ; | ) \\ a a > * ° J r ‘ . e * bed . . 2 | | 33 Attached to this contract as part of the Exhibit are draw- -ings, schedules, and specifications referred to in this Sec- tion as Exhibit “A”. The legend of which explains the lines .on the Exhibits and refers to them as: (1) Existing Power Line. (2) Existing Power. Line to -be releiened. (3) Existing Power Line ‘to be relocated with Con- veyance of Real Property Rights to the Govern. ment. “@) Proposed Relocated Power Line. and other notes which seem to have no bearing on this i, _ question. This contract an— Exhibit “A” thereto, clearly corroborates and establishes the clearness of the testimony ~ - of witness Crowell for the First Electric, ‘and witness Minnis | for the Power Company. e _-: A. I think I know the Contracting Officer had the right to sell the service at the point he Sold it and I think _. 53 he knew the U. S. Government can a what they dern please with it after they get it. ; Q. That is not the ‘question T asked. you wit la am going to stay here all day until I get an answer ito my ques- tion if the Commission will permit me. My question was: You did not know whether or not the Con- tracting Officer knew that the First Flectric Co- operative had a right to serve a part of that te_ritory at that time when you entered into the vontract, do ‘’ ‘you? : : A. I.don’t think these Contracting Officers are dumb. We have deait with them a lot of i es and they knew all about théir business in a big way and they came in with their requirements and we met them on that basis. } . Q. And you did not tell them that vou did not have a Certificate of Necessity to serve all the territory in thesAir Base? A. We have a certificate to serve the Base at the place we did serve it and he knows that. — Q. But you c’Ynot*tell him that you did not have a Certificate of Public Convenience and Necessity to serve all of the-Air Base, did you? — A. It was not neces’ary from our nce ania Q. You did not do it whether it was necessary or not, did you? Why are vou so reluctant to answer? a oe : - | ie Sra a A. Because we did not try to tell the Government how to run their business. | | Q. Just answer my question, did you or did you not? ‘A: They asked us for a point of delivery and it was at -a place we had a right to serve. We sold it there and they took it from there. ; : {_ : Q. You did not tell them? _ A. I told them just exactly what I told you. Q. And that was no, I believe you said. A. Sir? ~@ lies . | A. I said we had a right to serve at the place we did serve and they took it from there.” _ Q. That was no. a) 55 : SUPREME COURT OF ARKANSAS No. 1930 ARKANSAS POWER & LIGHT COMPANY, .. Appellant, - ARKANSAS PUBLIC SERVICE CERRRRIEBIOM, of ah, . 2005 ic ce icccescee: .. Appellees - OPINION DELIVERED Appeal from Pulaski Circuit Court, Third Division. DISSENTING OPINION JIM JOHNSON, Dimestans Sutton Ip respectfully disserting to the majority opinion, | ~ want-to state at. the outset that I do not disagree with any of the cases cited therein. The cases, as I view them, simply do not touch top, side nor bottom the issues involved in this lawsuit. This dissent is based wholly upon ‘the clear language .of Sectiori 5 of the Contract between the United States and the Arkansas Power & Light Company. This section is headed: “Public Regulation and Change of Rates.” The title alone shows that two subjects are covered in Section 5: (1) Public Regulation; and (2). Change of ‘ Rates. The first sentence in Section 5 is as follows: “Service furnished under this contract shall be subject to regulation in the manner and to the extent pre- . . scribed by law by: any Federal, State, or local regula- tory commission having jurisdiction.” (Emphasis Sup-— plied). ale ‘ rs Weta, I can. place only one interpretation upon this sentence and that is the United States voluntarily submitted to the regulations of the commission having jurisdiction. In read- ing Section 5 and the contract in its entirety 1 am unable to find one word indicating that it was the intention of the United States to limit the jurisdiction to which it volun- ‘ tarily submitted to rates alone. Section 5, as I:see it,. (1) - submits the United States to general public utility regula- tion, including (2) regulation of rates. It must be conceded that under our law the Public Service Commission is the “regulatory commission having jurisdiction.” This being true, I gan see no good reason for abandoning our well settled rule that we only teview the . following four questions on appeals from the Public Serr vice Commission: 1. Is. the Commission’s order supported by substantial . evidence? | yada Commission's order free from fraud? 3. Is the Commission’ s ender arbitrary? 4. — the order of the Commission-v1 olate any y right . of the appellant under the Urited States. or State Constitutions? See: Inc. Town of Emerson v. “Ark. Public Service Commission, 227 Ark. 20, 295 S. W. + 2-778: ee. araee 57 Nowhere in the record is it seriously: indicated that any of the above questions’ could be answered in the af- firmative. In fact, I.am convinced that: the Commission's Order is the only logical conclusion that could possibly be reached in this case under the. circumstances. The United States indicated its recogriition of the clear terms of its contract by its failure to intervene in this lawsuit. The ; majority opinion, in effect, is saying that this does not mat- ter: Arkansas Power & Light Company is entitled to all the privileges and irnmunities of the United States Govern- " ment, yea even entitled to rights that the Government itself is not claiming. The states of this Union -have .already, voluntarily or otherwise, relinquished too many ‘rights to the central Government without our forcing ypon a con- tractor with the Gove rnment rights which the Government has voluntarily relinquished to our State utility regulatory authority’ Fo reasons stated above, I respectfully disscit. * 58 IN THE SUPREME COURT OF ARKANSAS ARKANSAS.POWER & LIGHT re oe ‘i COMPANY RN ST ee Jietinaaesduvnes APPELLANT “V. © No. 1940, on “ARKANSAS. PUBLIC ‘SERVICE eS ete EE et ee iy attandend pete APPELLEES * , ee PETITION F FOR REHEARING ‘Come the @pellees and move the court that they be ae ee granted a tehearing in the above styled action, and for «, “* ,Cause,state: -' a. / | | ; doe > ' ‘The court’s decision deprives. the. First Electric - Co- operative of its property without que process of law in violation of U. S. Const. Amend. XIV, $1 1, and Ark. Const. ‘Art. 11, § 8 8. ia . . wy . The. court’s decisioti denies to the First Electric Co- operative Corporation the equal ‘protection of the Jaws - guaranteed by U.S. Const. Amend. XIV, §} and Ark. Const. | Art. II, § 3. | © Bisa as The court erred in construing the contract between “the United States and the Arkansas Power, & Light Com- pany to mean that the United States had not submitted to the regulations of the Arkansas Public Service Commission. the court erred in assuming that the regulations of the Arkansas Public-Service Commission would necessarily interfere with a‘federal furiction when, in fact, the United . ¢ Y - o ve Ve ae as 59 States has evidenced its complete indifference in this con- nection by its failure to intervene or in my, other way to. show an interest in this proceedi The cour€erred in failixg to give weight to the fact . that the United States apparently did not know of the _ existence of the contract betWeen the. First Electric Co- . operative Corporation. and the Arkansas Power. & Light _ Company and the rights of the First Electric Cooperative Corporation under its certificate of public convenience and hecessity when the United States — with the Ark- . ansas Power & Light Company. \ : ee 7 WHEREFORE, Appellee orad that a yeieerinn be granted, and that the nals of the trial c@urt be affirm- ed. * ad Js) TOM GENTRY a. '-: TOM GENTRY... ° . Attorney ‘for Appelldes - a _ 117 Nat'l Old Line Bldg. i eae Little Rock, Arkansas *- © . ’ CERTIFICATE . " I, Tortf Gentry, the attorney for appellees: do certify ‘that I have carefully read and considered the.opinion of the court herein; that I verily, believe that the court has ‘committed error as above set forth’ in the petition for re- hearing; that said. Petition is meritorious, and is not filed for the purpose of delay, but in order that justice. may be e- served. A copy of this pane has been servéd on opposing counsel. Lae _ /s/ Tom Gentry _TOM GENTRY a a » 60. CONSTITUTIONAL PROVISIONS INVOLVED © U. S. Const. Amend. XIV, §1: a “All persons born or naturalized in the United States, and subject to the ‘jurisdiction thereof, are citizens of ‘the United States and of the state wherein they reside. No. state. shall make or enforce any law which shall abridge the privileges or immunities of citizens of the — ote ” United States; nor shall any state deprive any person ‘. of life, liberty, or property, without due process of law; -_ nor deny to any person. within its jurisdiction the equal " ~protection of the laws.” io -U. S.-Const. Art. VI: “1. Atl debts contracted. and engaguhents entered into, before the adoption of this Constitution, shall be @=5 valid against the United States under this Constiti- tion, as under the confederation. . “2. This Constitution, and the laws of the United States which shall be made in pursuance thereof; and - all treaties made, or which shall be made, under the__ authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any state to the contrary notwithstanding. | “3 e senators and representatives before mein- ioned, and the members of fhe several staft legisla- ; tures, ona all executive and judicial officers, both of - the United States and of the several states, shall be ' bound by oath or affirmation, to support this Con- - stitution; but no religious test shall ever be required as a qualification to amy office or public trust under the United States.” a A : 61 | | ‘UNITED STATES STATUTORY "PROVISIONS INVOLVED - a ad : Title 10, United States Code, §9773; Neen Wh “(a) The Secretary of the Air Seeee shall determine the sites“of such additidnal permanent air basés and depots in’ all strategic areas of the United States and ‘the Territories, Commorwealths, possessions, and © ‘holdings as he considers necessary. He shall determine ‘when the enlargement of existing air bases and depots is riecessary for the effective peacetime training of the Air Force. “(b) In determining the sites of. new air bases and depots, the Secretary shall.consider the following re- . gions for the purposes indicated — (1) the Atlantic northeast, for training in cold weather.and in fog; (2) the Atlantic squtheast and Caribbean areas, for training in long-range ,operations, especially those incident to reinforcing the defenses of the | te Panama Canal; ~ ae Be (3). the squtheastern United States, to provide a depot necessary to maintain the Air Force; (4) the Pacific northwest, to establish and main- . ) tain air communication with Alaska; (5) Alecks. . for ‘training woler conditions , of extreme cold; | . .* : (6) the Rocky Mountain area, to provide a depot necessary to maintain the Air Force, and for train- ing in operations from fields in high altitudes; and ‘ o 62 A7) other: regions, for the establishment of inter-. mediate air;bases to provide for transcontinental movements of the Air F orce for maneuvers. “(c) In selecting sites for air bases and depots cofter- ed by this section and in determining the alteration ‘or enlargement of existing air bases or " depots, the Secretary shall consider the need — ” (1) ‘to form the’ nucleus for concentration of Air Force units in time of war; (2) to permit, in time of peace, training and effec- ‘tive planning in each strategic area for the use and - expansion of commercial, municipal, and private flying installations in time of war}, (3) to locate, in each strategic area in which it is considered necessary, adequate storage facilities for munitions and other articles necessary to fac- ‘ ilitate the movement, concentration, maintenance, ‘ -and operation of the Air Force; and . oe (4) to-afford the maximum warning against sur- prise attack by enemy aircraft upon aviation of the United, States and its necessary installations consistent ‘with maintaining, an connection with existing or contemplated’ landing fields, the full power of the Air Force for operations. necessary in the defense of the United States, and in the de- fense and reinforcement of .the Territories,-Com- monwealths,. possessions, and holdings. “(d) In carrying out this: section, the Secretary, on. behalf. of the United States; may acquire titie, A ; simple and free of encumbrance, to any land. that ne considers necessary — ww R 6- ma “ (1) .by savasting title without cost to the United States; ae | 7 (2) by exchanging military ‘reservations or parts thereof for that land, upon the written ee of the President; | OF, (3) _ by purchase or condemnation, if acquisition by gift or exchange is impracticable. = 8 . . * “‘tfe) The Secretary may,. by purchase, gift, lease, or, otherwise, acquire at desired locations bombing and, machine gun ranges necessary for practice by, and the training of, tactical units. “est each air base or depot established under this section, the Secretary shall remove or remodel exjst- ing structures as necessary; do necessary grading; EY provide buildings, utilities; communication systems, . ’ landing fields and mats, roads, walks, aprons, docks, | runways, facilities for the storage and . distribution of ‘ ammunition, fuel, oil, necessary protection against ‘bombs, and all appurtenances to the foregoing. “(g) The Secretary may direct. the transportation of © personnel, and the’ purchase, renovation, and trans- portation of material, that he considers ninioanty to: carry out this section.” ctr 9 Title 28, United States Code, $1257 (3)? “By writ of certiorari, wheré the validity of a treaty or statute of the United States is drawn.in question or where the validity of a State statute is drawn in ques- | tion on the ground of its being repugnant to the Con- stitution, treaties or laws of the United States, or where any title, right, privilege or immunity} is specially set. ai . > ‘- >» 64 ‘ - up or claimed wile the Constitution, treaties or sta- tutes of, or commission’ held or authority exercised ufider, the United States.” Title, 40, U |, United States Cade, $255: . Sera Ke public money shall -be expended u ny site or Jand purchased by the United SS da purposes of erecting thereon any armory, arsehal, fort fortifica- tion, navy yard, customhouse, lighthouse, or other public building of any kind whatever, until the writ- ten opinion of the Attorney General shall - had in _favor of the validity of the title. “Notwithstanding the prov isions of this or any other. law, whenever the average value of any lands or inter- * _ ests in land to be acquired by ay on behalf of the United: States under a single option or contract of sale.does. _ not exceed $10 per acre (hereinafter referred to as “low-value lands”), the title may be accepted subject to such infirmities as, in the opinion of the Attorney . General, may, wit .out jeopardizing the interests of the. United States, be left for removal by condemnation or other appropriate proceedings. if and when necessary: . Provided, That the total value of any lands or interests to be acquired under a single option or. contract of sale . * subject to ah infirmity doés not exceed $3,500. No public money shall hereafter be expended for the acquisition of such low-value lands orjinterests in land by or on behalf of the United States for any purpose until the written opinion of the- Attorney General has - been had approving the title subject, if expedient, to. infirmities as hefein ‘provided. However, no money in excess of $2,500 shall be expended for the construction of buildings, works, or other improvements (except a is - roads, trails, and fire-protection improv ements) on any _ site, tract, or parcel of land the title to which is sub- ject to infirmities, until the written opinion of the At- —torney General i in favor of the validity of t the title has been had as in the case of other lands. For the purpose of this section, values of lands and interests in land shall be determined by the ‘eqnsideration paid « orto. . be paid. ts i ; ; “The Atiorney General is -authorizéd to approve the —————~ __+___-+_title te-easements or rights-of-way to be acquired by or on behalf of the. United States, siibject to such . infitm- ities as, in‘his opinion, will not jeopardize the interests of the United States. --_ -“Nothing in this section shail be construed to. limit the authority now or hereafter delegated to any of- - ficer in exercising the power of eminent domain for or on behalf of the United States, to take title to or pos- session of or,to expend money for or upon any land or 4 interest. in land, or to expend money as security for an ultimate award in. advance of final judgment ~ in any proceedings to determine just compensation; nor shall this section be construed to preclude any acquiring agency from-expensding money for the erection of any ~~ — wit temporary structure upon ‘any land. ® ri “The head or other authorized officer of any depart- ment, independent establishment, or agency, shall pro-. cure any evidence of title which the Attorney Gen- * € 1 . a 66 eral may. deem necessary, and the expenses of procure- ment, except where otherwise authorized’ by law or "prov ided by contract, may be ‘paid out of the appropria- tions for the acquisition of jand or out of the appropria- © tions made’ for the contingencies of the acquiring de- » ees ‘independent in ata amstaals agency. : “The Attorney General may, in his discretion, basé any ‘opinion as to title’ required: either by _ section or ‘any other law upon-either or both of the ' * following: Ri Certificates of title of title companies or such evidence © of title as he may deem. satisfactory. | “The iaieks provisions of this section’ shall. not be * construed to affect in any manner any existing pro- c-) » visions. of law which are applicable to the acquisition Sy of lands or interests in land by the Tennessee Valley , Authority; and nothing in this section shall’ be con-— | strued. to affect in any manner, any authority which ‘the Secretary of the Army, the Chief of Engineers, or the Secretary of the Interior have. under the provisions | of law. in force on October 9, 1940, with respect to the \ " approv al by them of title to land or interest in land acquiréd by the Department of the Army or the De-: partment of the Interior, as the case may be. Nor shall \ the. foregoing’ provisions of this section, or the pro- visions of any other law. be construed to require any -opinion of the Attorney General in ‘connection, with the acquisition or improvement, of . easements and rights-of-way for military or naval purposes; or for loti Yor ; f i ; oy, x, 67. ah iis ; et". + _the aequisition or improv ement, of easements 7 of-way. dy the Department of’ Agriculture for forest -and other conserv ation purposes, where the cost of any such easement’ of right-of-way" acquired der a single ; % instrument of conveyance and the cos6f any improve- _ ment thereon doesnot" exceed $2,5 sogf’and the Attorney.: : General-may, in his ‘discretion, W Mm the requirement for his opinior’ in connection with the. acquisition or 7 improvement of easements nd rights-of- -way for other: purposes when, in his inion, suth waiver “will not 7 -Jeopardize the — of the United States. in which any lands: or interests init under ‘his im- “Notwithstandi g any iitine’ iiolaages af law, the , obtaining of exclusive jurisdiction in the United States. * over lands a interests therein which have been or shall : hereafter be: acquired by it shal] not be requiged; but the head or other authorized officer of any department or indépendent - establishment or ‘agency of the Gov- ernment may, in such cases and at such times as he’ may deem desifable, accept or secure from the State mediate jurisdiction; custody, or control are situated, consent to or cession of such jurisdiction, exclusive. _ or partial, not theretofore obtained, over any such lands or interests as he may deém desirable and indicate ~ acceptance of such jurisdiction on behalf of the United | States by filing a notice of such acceptance with the Goveinér of such State or in such other manner as may . be prescribed by the laws of the State where such lands. * ° . » ob S - 1 are situated. Unless and until the United States has ~ . accepted jurisdiction over lands hereafter to’ be ac-_ quired as aforesaid, it shal] be conclusively presumed , . that no such ane has been — * -Title 50, United States Code, "g4o1: at “The ecoeteicy of the Air Force is authorized to esta- . -blish arid develop within and without the continental limits of the United States in fulfilling the air defense ; responsibilities of the Department of the Air Force | such land-based air warning and control. installations ,, _ and facilities by the construction, installation, or equip- ment of. temporary or permanent public-works, includ- . . ing buildings, facilities, appurtenances, utilities, and - at¢cess roads, and to provide for necessary administra- - years from the date communication services are first ~ — furnished under’such contract. The aggregate con- * tingent liabilitv of the Government under the termina- , } 7) " provisions of section 481 of Title 40. oil 69 ae ; tion provisions of all contracts: authorized ‘hereunder , may not exceed a total of $222,000,000 and no termina- ; _ tion payment shall be final until audited and/approved by the General, Accounting’ Office which shall have “aceess to sueh carrier records and accounts as it may deem necessary for the purpose. In procuring such ser-. vices, the Secretary of the Air Force shall utilize to. the fullest extent practicable the facilities and’ cap- abilities of communication ‘common carriers, including ; rural telephone “cooperatives, within their respective service areas and-for power supply, shall utilize to: the - fullest extent practicable, the facilities and capabilities of public utilities and rural electric cooperatives with- in ‘their respective service areas. Negotiations with =! communication carriers, including cooperatives, and representation jn proceedings inyplving such carriers ‘before Federal and State regulatory bodies where such negotiations or proceedings involve contracts author- , ized -by this paragraph shall be in accordance axe the