CHAPTER V LAWS AND PROBLEMS OF STATES RELATED TO LEGISLATIVE JURISDICTION Use of material from State sources.--The great bulk of the material received by the committee from State attorney general and other State sources consists of excerpts appertaining to legislative jurisdiction from the constitutions and statutes of the States. This particular material, conformed to reflect the status of the law as of December 31, 1955, will be found in appendix B to this report arranged alphabetically by States. The judicial decisions and legal opinions which the attorneys general directed to the attention of the committee, which were invaluable in forming apart of the basis for the views of the Committee set out in this report, in the main will be specifically referred to only in part II of the report, which constitutes a text of the law on the subject of legislative jurisdiction. Certain aspects of the material relating to State appear appropriate for discussion at this point, however. Provisions of State constitutions and statutes relating to jurisdiction.--It is noted by the Committee that the constitutions on Montana, North Dakota, and South Dakota have ceded to the United States exclusive legislative jurisdiction over certain specified areas, so that amendments to the constitutions might be required in effecting changes of the jurisdictional status of the areas involved. The constitution of the State of Washington gives the consent of the States over tracts of land held or reserved for the purposes of article I, section 8, clause 17, of the United States Constitution, so that no limitation apparently may be placed by the State legislature on the exercise by the United States of exclusive jurisdiction over such areas within the State. While three other States (California, Georgia, Texas) also have constitutional provisions which bear some relation to legislative jurisdiction, such relation is indirect and relatively insignificant. The Committee's study indicates that as recently as 25 years ago all States had in effect consent or cession statutes of more or less general application which permitted the vesting in the United States of exclusive legislative jurisdiction, or substantially exclusive legislative jurisdiction, over properties acquired by it within the State. As of (23) 24 December 31, 1955, only 25 States (identified in the table presented at the end of this chapter) continued to have such statutes. In addition, exclusive (or lesser) jurisdiction may be ceded in Virginia by action of the Governor and attorney general, and in Florida and Alabama by their respective Governors. Three States, Illinois, Kentucky, and Tennessee, have wholly repealed their consent and cession statutes. Pennsylvania consents to the Federal acquisition of property (and therefore exclusive legislative jurisdiction over such property) necessary for the erection of aids to navigation, but not for other purposes of the government. The other States have consent and cession statutes containing various limitations and reservations. All States which have such statutes reserve authority for the service of process upon areas the jurisdiction over which is transferred based on events which occurred off the areas. The table which appears at the end of this chapter, together with its notes, gives certain information concerning the provisions made in State constitutions and statutes with respect to legislative jurisdiction. For more detailed information it is suggested that reference be had to appendix B to this report. Expressions by State attorneys general respecting Federal exercise of jurisdiction.--The attitude of the attorney general of Kentucky with respect to the exercise by the Federal government of exclusive legislative jurisdiction over areas within his State, which was particularly well expressed, perhaps reflects views of other State officials and reasons why the States have tended in recent years to limit the availability to the United States of legislative jurisdiction: In commenting generally, we feel that the existence of any Federal enclaves in this State has probably been conductive to embarrassment to both the Federal and the State authorities. We have noted in our dealings with the Atomic Energy Commission at Paducah, whose installation there is partially within a Federal enclave and partially without, that this most secret of all federal activities an be carried on most successfully within the State jurisdiction, and the atomic Energy Commission officials width whom we have dealt have so expressed themselves. The transfer of jurisdiction to the Federal Government is as anachronism which has survived from the period of our history when Federal powers were so strictly limited that care had to be taken to protect the Federal Government from encroachment by officials of the all-powerful States. Needless to say, this condition is now exactly reversed. If there is any activity which the Federal Government cannot undertake on its own property without the cession of jurisdiction, we are unaware of it. It is our hope that your Committee will be able to recommend a retrocession to Kentucky of all of the Federal enclaves in this State, so that our local governments, our law courts, our administrative agencies and our Federal officials themselves may cease to be vexed with this annoying and useless anachronism. 25 Another view, which is, nevertheless, critical of practices of Federal agencies with respect to the acquisition of legislative jurisdiction, is also well stated by the attorney general of New York: It would seem that it would result in a change for the better if acquisition by the United States of jurisdiction over areas in this State were limited to those cases in which such acquisition is absolutely necessary to the accomplishment of the Federal purposes for which the lands have been or are acquired and to which they are devoted, and that the jurisdiction heretofore acquired by the United States should be returned to the State in all cases where its retention by the United States in not absolutely required. It is difficult to see, for instance, how the advantages,if any, outweigh the disadvantages of acquisition by the United States of exclusive jurisdiction over sites within the State acquired for the purposes of post offices, office buildings, courthouses, lighthouses, veterans' hospitals, and the like. In the absence of exclusive Federal jurisdiction,such places and the inhabitants thereof would by subject to and would receive the protection and benefits of State and local laws except insofar as the operation of such laws might adversely affect the United Stats in the use of the property for the purposes for which it is maintained (Surplus Trading Co. v. Cook, 281 U.S. 647, 650 ). A good beginning was made by the act of Congress of February 1, 1940 (54 Stat. 19; 40 U.S.C.A. 255), sometimes C referred to as the act of October 9, 1940 (54 Stat. 1083). Adoption of that act followed the decisions of the Supreme Court in James v. Dravo Contracting Co., 302 U.S. 134; Mason Co. v.Tax Commission,302 U.S.186; and Collins v. Yosemite Park Co., 304 U.S. 518 (See Adams v. U.S., 319 U.S.312). One of the underlying reasons for that act was a realization by Congress of the fact, adverted to by the Supreme Court at page 148 of its opinion in James v. Dravo Contracting Co., that "a transfer of legislative jurisdiction carries with it not only benefits but obligations, and it may be highly desirable, in the interests of both the National Government and of the State, that the latter should not be entirely ousted of its jurisdiction." But the benefits of that act will not be achieved in the measure hoped for unless administrative departments of the Federal government exercise a discriminating, self- imposed restraint in applying for and accepting cessions to the United states of exclusive jurisdiction over lands within the Stats. Not all attorneys general were critical of the exercise of legislative jurisdiction, however. The general of Maine and Florida, for example, indicated that their problems arising out of legislative jurisdiction were minor. Nevertheless, in each instance the existence of such problems was acknowledged. Difficulty of determining jurisdictional status of Federal areas.-- Perhaps the problems most often referred to by State attorneys general arose out of the difficulty of determining the jurisdictional status of federally owned areas, where the task was to ascertain whether State laws, or which state law applied in an area. In Kansas and in Maryland, for example, there presently exist serious situations with respect to the indefinite jurisdictional status of important highways. The basic question involved in Kansas situa- 26 tion appears to be whether the Federal Government in 1875 received legislative jurisdiction over a federally owned highway adjoining Fort Leavenworth on which many problems of law enforcement now occur. The Maryland situation arises out of the fact that a large portion of the Baltimore-Washington Expressway, contained almost wholly within the territorial boundaries of the State of Maryland, passes through areas acquired at separate times, for separate purposes, and with differing legislative jurisdictional statuses, by the Federal Government. Since the United States has exclusive legislative jurisdiction over various of these areas the boundaries of which cannot easily be established there exists a Balkanized situation on the highway as a result of which Maryland law-enforcement authorities are finding it virtually impossible, particularly with respect to traffic violations, to establish jurisdiction over crimes committed on segments of the highway which actually are within their jurisdictional authority. On the subject of what givers rise to the principal difficulties has by States with respect to areas under Federal jurisdiction the attorney general of Maryland states: I would generally say that the most important item to be considered at the outset, insofar as the State of Maryland is concerned, is an exact inventory of each and every item of federally owned real estate, together with an ascertainment of the existing jurisdictional picture as to each such area. Once we have determined this, we will be in a far better position to assess what is necessary in the way of agreements between the Federal Government and the State and in clarifying legislation. Taxing problems.--These are another apparently serious concern arising for State attorneys general and other State officials out of legislative jurisdictional situations. In the usual case the problem does not directly involve the United States or an instrumentality thereof, the immunities of which from State and local taxation are well known to responsible State officials. Rather, the problems arise from legal discriminations still existing with respect to areas under Federal exclusive legislative jurisdiction whereby residents of such areas, persons doing business in the areas, and privately owned property contained in the areas, must receive from State and local taxing authorities treatment different from that accorded to very similarly situated persons and property on areas as to which the United States does not have exclusive legislative jurisdiction. The situations obviously complicated by the fact that the imposition of certain taxes on private persons, activities, and properties in Federal exclusive legislative jurisdiction areas have been authorized by the Congress while others have not. 27 A frequently mentioned problem in the tax field was that arising with respect to so-called Wherry housing,which is housing constructed and operated by private persons for military personnel. This housing is usually located land leased from the Federal Government which is part of the side of a military installation, and which often is under the exclusive legislative jurisdiction of the United States. White the Congress has in certain specific terms authorized State and local taxation of private leasehold interests in such housing projects, many States and local taxing districts do not have tax laws applicable to leasehold interest, as distinguished from fee interests, and hence are having difficulty in collecting revenue from that interest which the Congress has made taxable. However, this particular problem does not arise out of legislative jurisdictional status. A related problem, as to whether the Congress authorized the imposition of taxes on such lease hold interests where the housing is located on land under the exclusive jurisdiction of the United States is presently before the Supreme Court of the United States. Other problems.--Numerous problems of criminal jurisdiction, licensing and control of alcoholic beverages, and licensing and control of persons engaged in occupations affecting public health and safety were mentioned by attorneys general as arising in areas under the legislative jurisdiction of the United States. The attorneys general also made frequent references to problems existing for residents of exclusive jurisdiction areas and their children, particularly with respect to voting, divorce, old age assistance, admission to State institutions, and loss of rights to attendance at public schools. Summary.--The information received by the Committee from State sources indicates that numerous problems for States and local governmental entities,and for persons residing in Federal areas within the States result from Federal legislative jurisdiction, and particularly exclusive legislative jurisdiction, over such areas, with a considerable disruption of the normal relations of State and other governmental entities with persons within their geographical boundaries.