CHAPTER II HISTORY AND DEVELOPMENT OF FEDERAL LEGISLATIVE JURISDICTION Origin of article I, section 8, clause 17, of the Constitution.-- This provision was included in the Constitution as the result of proposals made to the Constitutional convention on May 29 and August 18, 1787, by Charles Pinckney and James Madison. The clause was born because of the vivid recollection of the members of the Convention of harassment suffered by the Continental Congress at Philadelphia, in 1783, at the hands of a mob of soldiers and ex-soldiers whom the Pennsylvania authorities felt unable to restrain, and whose activities forced the Congress to move its meeting place to Princeton, N.J. The delegates to the constitutional convention, many of whom had suffered indignities at the hands of this mob as members of the Continental Congress, were impressed by this incident, and by a general requirement for protection of the affairs of the then weak Federal Government from undue influence by the stronger States, to provide for an area independent of any State, and under federal jurisdiction, in which the Federal Government would function. Without much debate there was accepted the their that places other than the seat of government which were held by the Federal Government for the benefit of all the States similarly should not be under the jurisdiction of any single State. Objections made by Patrick Henry and others, based upon the dangers to personal rights and liberties which clause 17 presented, were anticipated or replied to by James Iredell of North Carolina (subsequently a United States Supreme court Justice) and Mr. Madison. They assured that the rights of residents of federalized areas would by protected by appropriate reservations made by the States in granting their respective consents to federalization. (It may be noted that this assurance has to this time borne only little fruit.) Early practice concerning acquisition of legislative jurisdiction.- -The Federal City was established at what became Washington on land ceded to the Federal Government for this purpose by the States of Maryland and Virginia under the first portion of clause 17. However, the provision of the second portion, for transfer of like jurisdiction to the Federal Government over other areas acquired for Federal purposes, was not uniformly exercised during the first 50 years of the existence of the United states. It was exercised with respect to most, but not all, lighthouse sites, with respect to various forts and (7) 8 arsenals, and with respect to a number of other individual properties. But search of appropriate records indicates that during this period it was often the practice of the Government merely to purchase the lands upon which its installations were to be placed and to enter into occupancy for the purposes intended, without also acquiring legislative jurisdiction over the lands. Acquisition of exclusive jurisdiction made compulsory.--The Federal practice of not acquiring legislative jurisdiction in many cases was terminated in 1841, as a result of what appears to have been a legislative accident. A controversy had developed between the Federal Government and the State of New York concerning the title to (not the legislative jurisdiction over) a single area of land on Staten Island upon which a fortification had been maintained for many years at Federal expense. Presumably to avoid a repetition of such incidents, the Congress provided by a joint resolution of September 11, 1841 (set out in appendix B to this report as sec. 355 of the Revised Statutes of the United States), that thereafter no public money could be expended for public buildings [public works] on land purchased by the United States until the Attorney General had approved title to the land, and until the legislature of the State in which the land was situated had consented to the purchase. In facilitating Federal construction within their boundaries most States during the ensuing years enacted statutes consenting to the acquisition of land (frequently any land) within their boundaries by the Federal Government. These general consent statutes had the effect of implementing clause 17 and thereby vesting in the United States exclusive legislative jurisdiction over all lands acquired by it in the States. The only exceptions were cases where the Federal Government plainly indicated, by legislation or by action of the executive agency concerned, that the jurisdiction proffered by the State consent statute was not accepted. Necessity for plain indication by the Federal Government of nonacceptance of jurisdiction came about because of a general theory in law that a proffered benefit is accepted unless its nonacceptance is demonstrated. It should be noted that lands already under the proprietorship of the United States when these general consent statutes were enacted, such as the lands of the so-called public domain, were not affected by the statutes, and legislative jurisdiction with respect to them remained in the several States. Curiously, therefore, the vast areas of land which constitute the Federal public domain generally are held by the United States in a proprietorial statute only. It should also be noted that the 1841 Federal statute did not apply to lands acquired by the United States upon which there was no intent to erect public build- 9 ings within the broad meaning of the statute. However, the Federal Government quite completely divested the States, with their consent, of legislative jurisdiction over numerous and large areas of land which it acquired during the hundred year period following 1841 without, apparently, much concern being generated in any quarter for the consequences. State inroads upon acquisition of exclusive jurisdiction.--In the course of the tremendous expansion of Federal land acquisition programs which occurred in the 1930's the States became increasingly aware of the impact upon State and local treasuries (which will be discussed in considerable detail) of Federal acquisition of exclusive legislative jurisdiction and its further impact on normal State and local authority. With the development of this awareness there began the development of a tendency on the part of States to repeal their general consent statutes and in some cases to substitute for them what may be termed "cession statutes," specifically ceding some measure of legislative jurisdiction to the United States while frequently reserving certain authority to the State. In other instances States amended their consent statutes so that such states similarly reserved certain authority to the State. Included among the reservations in such consent and cession statutes are the right to levy various taxes on persons and property situated on Federal lands and on transactions occurring on such lands; criminal jurisdiction over acts and omissions occurring on such lands; certain regulatory jurisdiction over various affairs on such lands such as licensing rights, control of public utility rates, and control over fishing and hunting; and the most complete type of reservation--a retention by the State of all its jurisdiction, to the Federal Government. It should be emphasized that Federal instrumentalities and their property are not in any event subject to State or local taxation or to most types of State or local controls. However, the transfer to the United States of exclusive legislative jurisdiction over an area has the effect, speaking generally, of divesting the State and any governmental entities operating under its authority of any right to tax or control private persons or property upon the area. It was the divesting of such rights that reservations in consent and cession statutes were designed to combat. Statutory enactments of various States have also fixed conditions concerning procedural aspects of Federal acceptance of legislative jurisdiction. For example, some States require publication of intent to accept and recordation with county clerks of metes and bounds of property, or have other similar requirements. In the case of one 10 State these procedural requirements have been deemed by some federal agencies to be so onerous, and the reservations of jurisdiction made by the State to be so broad, that the agencies have not felt justified in meeting the procedural requirements in view of the small amount of jurisdiction which is thereby acquired. Retrocession by the Federal Government.--The States could not by unilateral action retrieve from the Federal Government authority which they had surrendered over areas as to which they had already ceded exclusive legislative jurisdiction to the Government, but during the mentioned period when States were altering their consent statutes the Federal Government relinquished to the States the authority to tax sales of motor vehicle fuels, to impose sales and use taxes, and to levy income taxes. These relinquishments, or retrocession, were applicable to areas as to which jurisdiction previously had been acquired as well as to future acquisitions. The term "retrocede" is used generally here and throughout this report to include waivers of immunity as well as retrocession of jurisdiction. The statutes involved are set out in appendix B in the codified form in which they appear in title 4 of the United States Code. Exclusive jurisdiction requirement terminated.--There was also enacted, on February 1, 1940, an amendment to section 355 of the Revised Statues of the United States which eliminated the requirement for State consent to any Federal acquisition of land as a condition precedent to expenditure of Federal funds for construction on such land. The amendment substituted for the previous requirement provided that (1) the obtaining of exclusive jurisdiction in the United States over lands which it acquired was not to be required, (2) the head of a Government agency could file with the governor or other appropriate officer of the State involved a notice of the acceptance of such extent of jurisdiction as he deemed desirable as to any land under his custody, and (3) until such a notice was filed it should be conclusively presumed that no jurisdiction had been accepted by the United States. This amendment ended the 100-year period during which nearly all the land acquired by the United States came under the exclusive legislative jurisdiction of the Federal Government. Subsequent developments.--Federal abandonment, through the revision of Revised Statute 355, of the nearly absolute requirement for State consent to federal land acquisition had two direct effects: (1) the state tendency to amendment of consent and cession laws so as to provide various reservations was accelerated, and (2) Federal administrators, particularly of newer agencies which did not have long-established habits of acquiring exclusive legislative jurisdiction, tended not to acquire any legislative jurisdiction for their lands. The first 11 tendency has developed to the point that, it may be seen from appendix B to this report, as of a recent date only 25 States, many of these having relatively little Federal property within their boundaries, still proffered exclusive legislative jurisdiction to the Federal Government by a general consent or cession statute. The other tendency has been sufficiently manifested that, it will be noted from more specific information offered later in this report, a very large proportion of federal properties is now held with less than exclusive jurisdiction in the United States. The tendencies described have not had any substantial effect on the bulk of properties as to which jurisdiction was acquired by the United States prior to 1949. Property acquired by the Federal Government with a vesting of legislative jurisdiction continues to this time in the same general jurisdictional status as originally attached. An exception occurs in those cases in which there is a limitation on the exercise of legislative jurisdiction by the United States specifically or by implication set out in the State statute under which the Federal Government procured such jurisdiction (such as a limitation that the proffered jurisdiction shall continue in the United States only so long as the United States continues to own a property, or so long as the property is used for a specified purpose). Once legislative jurisdiction has vested in the United states it cannot be retested in the State, other than by operation of a limitation, except by or under an act of Congress. The Congress has acted, mainly, only to authorize imposition of the specific State taxes already mentioned, to permit States to apply and enforce their unemployment compensation and workmen's compensation laws in Federal areas, and to retrocede to the States jurisdiction over a mere handful of properties (in the last category the usual case involves only a retrocession of concurrent criminal jurisdiction with respect to a public highway traversing a Government reservation). The Congress has also authorized the Attorney General and the Administrator of Veterans' Affairs, respectively, to retrocede jurisdiction in certain limited instances, but this authority appears to have been rarely used; and the Congress has extended to the State jurisdiction over criminal offenses occurring on immigrant stations. Whether the Congress has authorized imposition of State and local taxes on private interests in all military housing constructed under the so-called Wherry Act, some of which is located on areas as to which the United States has received legislative jurisdiction, is a question now before the Supreme Court of the United States. All the statutes involved are, as has already been indicated, set out in appendix B to this report.