A different view was expressed, however, in a Montana State case, involving somewhat similar circumstances. In that case, the War Department, with the consent of the owners and prior to vesting of title in the United States, entered upon and commenced the improvement of certain lands acquired for the establishment of Fort Peck Military Reservation. The Acting Secretary of War notified the Governor of the State that the lands were in possession of the United States under agreements with the owners, and the United States, under an applicable Montana statute, had assumed "complete and exclusive jurisdiction over these lands." The Supreme Court of Montana recognized the Government's entry and possession of the land under options with the owners as amounting to a "purchase", and held that the United States had acquired jurisdiction notwithstanding title had not actually passed. The court observed, "When the United States went into possession under these options and made improvements upon the premises, it accepted the options and thereby a binding contract to purchase resulted *. The United States had acquired the right to possess, enjoy, and occupy the State lands, and was exercising these rights. True, the method of arriving at the price was not fully determined, nor the manner of completing the conveyance. Notwithstanding these deficiencies the United States had purchased these lands within the meaning of the word 'purchase' as used in the Federal Constitution.” 13 The court seems to have supported its conclusion upon the analogy of the rule in condemnation cases that the taking of property by the United States is complete as soon as the Government begins to carry out the project authorized.

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CHAPTER V

CONSTRUCTION OF STATE STATUTES RELINQUISHING JURISDICTION TO THE UNITED STATES

32. Source of controversies regarding Federal jurisdiction.Most of the controversies which have arisen with respect to Federal jurisdiction over lands situated within any of the several States have resulted from differences of opinion as to the meaning of language used in State statutes under which Federal jurisdiction has been asserted.

Both consent-to-purchase statutes and cession statutes usually employ words or phrases which also appear in Art. I, Sec. 8, Cl. 17 of the Constitution of the United States, and which have been given established legal meaning by the courts. For convenient reference, that provision of the Constitution is quoted in full as follows:

13 State v. Bruce, 77 P. (2) 403, 406, 407. See also, 104 Mont. 500, 69 P. (2) 97, 98.

The Congress shall have power * * * to exercise exclusive legislation in all cases whatsoever over such district (not exceeding 10 miles square) as may, by cession of the particular States and the acceptance of Congress, become the seat of Government of the United States, and,

To exercise like authority over all places purchased by the consent of the Legislature of the State in which the same shall be for the erection of forts, magazines, arsenals, dockyards, and other needful buildings.

33. Cession of jurisdiction, unless qualified, means exclusive jurisdiction. Where a State statute cedes jurisdiction, without qualifying terms, Federal authority over such areas becomes complete when jurisdiction is accepted. It is not essential that the cession statute expressly indicate that exclusive jurisdiction is intended. A Nebraska statute ceding to the United States "jurisdiction over the military reservations" therein named, was interpreted by the Supreme Court of the United States as vesting the United States with "entire" jurisdiction over the reservations named, save in the matter of the right of executing process and opening and repairing roads as therein expressly reserved.1

34. Meaning of "exclusive jurisdiction” as used in State cession statutes. Many State cession statutes cede exclusive jurisdiction to the United States. The term "exclusive jurisdiction" as used in such statutes is recognized by the courts as being synonymous with the power to "exercise exclusive legislation", as the latter term is used in the Constitution.2 To say that the United States has acquired exclusive jurisdiction over lands within a State, means that the State has relinquished to the Federal Government all authority to enforce its own laws within such areas. In the Mason case,3 Chief Justice Hughes, speaking for the Court, observed "that question (of exclusive territorial jurisdiction) assumes the absence of any interference with the exercise of the functions of the Federal Government and is whether the United States has acquired exclusive legislative authority so as to debar the State from exercising any legislative authority, including its taxing and police power, in relation to the property and activities of individuals and corporations within the territory. The acquisition of title by the United States is not sufficient to effect that exclusion. It must appear that the State, by consent or cession, has transferred to the United States that residuum of jurisdiction which otherwise it would be free to exercise." From this, it follows that a reservation by the State to enforce any of its own laws within a ceded area would be incompatible with the exclusive jurisdiction of the United States within such area.

1 United States v. Unzeuta, 281 U. S. 138, 142, 50 S. Ct. 284.

2 Fort Leavenworth v. Lowe, 114 U. S. 525, 538, 5 S. Ct. 995; James v. Dravo Contracting Co., 302 U. S. 134, 141, 58 S. Ct. 208; Western Union Telegraph Co. v. Chiles, 214 U. S. 274, 278, 29 S. Ct. 613; United States v. Bevans, 3 Wheat. 336, 387; United States v. Wurtzbarger, 276 Fed. 753, 755.

Mason v. Tax Commission, 302 U. S. 186, 197, 58 S. Ct. 233.

35. When exercise of State functons within ceded area is consistent with exclusive Federal jurisdiction.-The exercise by a State within a ceded area of purely administrative functions which are necessary to preserve to its people the rights and immunities: safeguarded to them by the Constitution, would not be inconsistent with exclusive jurisdiction of the United States, so long as the exercise of such functions does not interfere with any of the constitutional functions of the Federal Government. This was recognized by the Attorney General of the United States + in construing a Virginia statute consenting to the purchase by the United States of lands within that State. The statute expressly retained concurrent jurisdiction with the United States over the site to be purchased pursuant to the Act "so that the courts, magistrates, and officers of that State may take such cognizance, execute such process, and discharge such other legal functions within the same, as may not be incompatible with the consent hereby given." The Attorney General observed that the statute "recognizes a ceded Federal jurisdiction, co-extensive with the demand of the Constitution of the United States, whatever that may be. It reserves for the State only such authority as may not be incompatible with the constitutional completeness of the authority ceded to the United States." But, the Attorney General continued, "all such rights would remain to the State by operation of law, even if not expressly reserved. For, on the general principle of constructive relation between the United States and each of the States, the former cannot take from a State anything more than is 'within the contemplation' of the Constitution of the United States, however broad and indefinite may be the terms of grant by a particular State."

In practice, the constructive relation of the State and Federal Governments is manifested in many ways by administrative officers of the Federal Government. It has long been the custom of Federal officers having control of areas over which the United States has acquired exclusive jurisdiction to grant to States in which the land is situated or to their political subdivisions or citizens, privileges within such areas which, while of no direct benefit to the Federal activity involved, are beneficial to the State or local community affected, as, for instance, permission to use such areas for highway, public utility or other municipal purposes.5

36. Meaning of word "purchase" in consent-to-purchase statutes.-Preponderance of authority supports the view that the word "purchased" as it appears in Art. I, Sec. 8, Cl. 17 of the Constitution, is used in its popular or restricted sense as referring only to actual purchase through negotiations with the owner,

47 Atty. Gen. 628, 631.

535 Atty. Gen. 485, 487.

6

rather than in its common law or technical sense as including acquisition by condemnation or other means except descent. The case of Kohl et al. v. United States, which was decided in 1878 and which is the first case of the Supreme Court of the United States recognizing the sovereign power of the Federal Government to condemn land within a State, involved a proceeding by the United States to expropriate a parcel of land for a post office site. An original act of Congress authorized the "purchase" of the site, but the land could not be acquired through negotiations with the owners. Congress, recognizing that the authority to purchase did not include the authority to condemn, passed a supplementary act which expressly authorized condemnation of the property. In discussing the Government's authority to condemn the property under the original act, the Court said, "The authority here given was to purchase. If that were all, it might be doubted whether the right of eminent domain was intended to be invoked. It is true, the words 'to purchase,' might be construed as including the power to acquire by condemnation; for, technically, purchase includes all modes of acquisition other than that of descent. But generally, in statutes as in common use, the word is employed in a sense not technical, only as meaning acquisition by contract between the parties, without governmental interference."

8

In the Leavenworth case the word "purchase" as used in the Constitution was given its popular, rather than technical, meaning, the Court distinguishing between "direct purchase" and acquisition "by exercising the right of eminent domain." In a Montana case, the Supreme Court of that State held that the word "purchase" as used in the Constitution "does not have the technical meaning of the term at common law of an acquistion of lands other than by descent or inheritance, but has the meaning of an acquisition thereof by an actual purchase." 10

In the Dravo case,11 Chief Justice Hughes, speaking for the Court, said, "It is not questioned that the State may refuse its consent and retain jurisdiction consistent with the governmental purposes for which the property was acquired. The right of eminent domain inheres in the Federal Government by virtue of its sovereignty and thus it may, regardless of the wishes either of the owners or of the States, acquire the lands which it needs within their borders. Kohl v. United States, 91 U. S. 367, 371, 372. In that event, as in cases of acquistion by purchase without consent of the State, jurisdiction is dependent upon cession by

Kohl et al. v. United States, 91 U. S. 367, 374.

7 Approved March 12, 1872 (17 Stat. 39).

Approved June 10, 1872 (17 Stat. 352, 353).

• Fort Leavenworth v. Lowe, 114 U. S. 525, 5 S. Ct. 995.

10 State v. Bruce, 69 P. (2) 97, 102 (Mont.), citing Crook Horner Co. v. Old Point Comfort Hotel Co., 54 Fed. 604.

11 James v. Dravo Contracting Co., 302 U. S. 134, 147, 58 S. Ct. 208.

the State and the State may qualify its cession by reservations not inconsistent with the governmental uses." (Emphasis supplied.) Numerous State cases have held that the power given by a State constitution or statute to "purchase" land does not include the power to condemn.12 The Attorney General of Nebraska in an opinion of May 14, 1943, held that a statute of that State, consenting only to the "purchase" by the United States of lands within the State, did not vest the United States with exclusive jurisdiction over lands acquired by condemnation. On the other hand, the Tucker case 13 is sometimes cited in support of the view that the word "purchased" as used in the Constitution is to be interpreted in its common law sense. In that case, however, the lands involved were not acquired by condemnation, but were ceded by special grant of the legislature of the State to the United States. The Court expressed the view that a cession of land by a State is equivalent to a "purchase" within the purview of the Constitution. The Attorney General of the United States in an early decision 14 held that the acquisition of title by expropriation is a "form of acquisition justified by the Constitution of the United States." However, that case did not involve the question of jurisdiction but related only to the title to the lands involved.

*

A search of the Court decisions fails to disclose any case wherein the actual existence or non-existence of Federal jurisdiction over lands acquired by condemnation was decided upon any particular concept of the word "purchase" as used in the Constitution. As a practical matter, however, the question has become one of diminishing importance, because all but a few States 15 of the United States have enacted cession statutes which are sufficiently broad in scope to cover lands acquired by condemnation or any other means.

37. "Other needful buildings" discussed.-There has been much discussion concerning the meaning of the words "other needful buildings" as used in the Constitution. Early authorities gave the words a restricted meaning under the doctrine of ejusdem generis, construing them as including only buildings of the same character as those expressly mentioned, that is, forts, magazines, arsenals or dock yards.16 In course of time, however, the words were interpreted more liberally, as including Government structures of non-military character. The term "other needful buildings" has been applied by the courts to the following: a navy

13 Paris Mountain Water Co. v. City of Greenville, 105 S. C. 180, 89 S. E. 669, 671; Griffith et al. v. City of Trenton, 76 N. J. L. 23, 69 A. 29; See also 28 Atty. Gen. 412, 415. 13 United States v. Tucker, 122 Fed. 518, 522.

147 Atty. Gen. 114. See also 13 Atty. Gen. 131, 134; 28 Atty. Gen. 413.

15 See Digest of State Cession Laws, Appendix II.

18 United States v. Bevans, 3 Wheat. 336, 390; New Orleans v. United States, 10 Pet. 660, 737.