Page images

Section 8. Powers of Congress

Notes of Decisions


III. Common defense.—The national de- Under authority of

Congress to spend fense is not an exclusively Federal function money in aid of the “general welfare," the or responsibility precluding cooperation from discretion to determine between particular the States. (U. S. C. A., Const. art 1, sec. and general welfare belongs to Congress, 8.) State ex rel. Gibbs, Atty. Gen. v. Gor- unless the choice is clearly wrong or a disdon et al. (Fla., 1939), 189 So. 437.

play of arbitrary power, not an exercise of

judgment, and courts will respect the judgment The statute creating the Duval County

of Congress unless the use be palpably withAir Base Authority in aid of the Federal

out reasonable foundation or is shown to national defense program, and declaring that involve an impossibility. U. S. C. A. Const. the national defense is a joint responsibility

art. 1, sec. 8, cl. 1. In re United States of the Federal and State Governments, does

(two cases), (D. C., 1939), 28 F. Supp. 758. not violate the Federal Constitution as

There is a middle ground between parencroachment upon an exclusive function of

ticular welfare and "general welfare" for the Federal Government. Acts 1939, H. B.

which Congress is authorized to spend 1145, par. 1; U. C. A. Const. art. 1,

money, in which discretion is at large and sec. - 8. Id.

belongs to Congress unless the choice is The power granted Congress by the Con- clearly wrong. U. S. C. A. Const. art. 1, stitution to provide for the common defense sec. 8, cl. 1. Id. and to raise and support armies is not to V. Constitutionality of Federal interpreted in a way that will make the A court in considering the validity of power ineffective against an enemy, actual act must give it such reasonable construcor potential. Const. art. 1, sec. 8. U. S. | tion as can be reached to bring it within v. Lambert (C. C. A. 8, 1941), 123 F. (20) the fundamental law, but amendment may 395.

not be substituted for construction, and the

court may not exercise legislative functions IV.

General welfare.-Change citation to to save the law from conflict with constituread: Tennessee Electric Power Co. v. Ten- / tional limitation. Pflueger v. U. S. et al. nessee Valley Authority (1938), 21 F. Supp. (App. D. C., 1941), 121 F. (20) 732 ; certiorari 947; affirmed (1938), 306 U. S. 118.

denied (1942), 314 U. S. 617.



Notes of Decisions

I. In general.-A State cannot tax inter- not dilute the power of Congress over them. state commerce either by levying a tax upon Congress may control nonnavigable parts of the business which constitutes

such com- a river in order to preserve and promote merce or by taxing the privilege of engaging commerce on the navigable parts. The power in it. State ex rel. v. Southern Oil Service, of Congress, under the Commerce Clause, to Inc. (Tenn., 1939), 124 S. W. (2d) 704.

protect & navigable river from floods extende Where interstate shipment of goods is not to the control of waters of its tributaries. contemplated or required by party, a con- The exercise of the granted power to regutract of sale within State between persons late interstate commerce may be aided by residing in State for delivery of goods appropriate and needful control of activitherein is not "interstate commerce" merely ties and agencies which, though intrastate, because the seller fulfills the contract by affect that commerce.

It is for Congress shipments to the purchaser of goods from alone to decide whether a particular project, & point without the State. Id.

by itself or as part of a more comprehensive

scheme, will have such a beneficial effect on II. Authority over navigable waters. The the arteries of interstate commerce

to Federal Government's jurisdiction over navi

warrant it. Oklahoma

Atkinson Co. gable waterways is based

section of
(1941), 313 U. S. 508,

affirming (D. C., Constitution authorizing Congress to regulate E. D. Okla., 1941), 37 F. Supp. 93. foreign and interstate commerce and make

The Federal Government derives its all laws necessary and proper to carry such


thority over

U. S. C. A. Const. powers into execution.


navigable rivers the art. 1, sec. 8. Grand River Dam Authority United States from the commerce clause of v. Going et al. (D. C., 1939), 29 F. Supp. 316.

the Constitution. Const. art. 1, sec. 8, cl. 3. The fact that portions of navigable Goodman et al. v. U, S. (C. C. A. 8, 1940), stream are no longer used for commerce does 113 F. (2d) 914.





The power of the United States over a (App. D. C., 1941), 123 F. (20) 155; certinavigable waterway under its constitutional orari denied (1942), 315 U. S. 806. right to regulate "commerce" is no longer The power of the United States Governlimited to control and improvement of the ment over waters is not limited to control of waterway for the operation of vessels in navigation. State of Oklahoma v. Guy F. interstate and foreign commerce, but it ex- Atkinson Co. (D. C., E. D. Okla., 1941), 37 ists equally in the case of flood protection, F. Supp. 93. watershed development, and the recovery of In its control over navigable waters, the the cost of improvements through the utili- United States Government is not limited to zation of power structures for the purpose portion of stream which is in fact navigable, of generating electricity. Pennsylvania Water if the stream in general is a navigable & Power Co. v. Federal Power Commission stream. Id.


Notes of Decisions

1. In general.—Under the Constitution, art. 1, sec. 8. cl. 12. U. S. v. Herling (C. Congress has power to compel military ser. C. A. 2, 1941), 120 F. (20) 236; U. S. v. vice of a citizen, in case of need, when Con- Lambert (C. C. A. 3, 1941), 123 F. (20) gress 30 declares, whether in peace time or 895; affirming (D. C., S. D. N. Y., 1941), war time, and to make preparations for 36 F. Supp. 916. national defense, if Congress declares that The power of Congress to raise and supit is imperative or necessary,

or that an port armies conferred by the Constitution emergency exists requiring raising and sup- may be implemented by legislation providing port of an army, and Congress need not wait for compulsory military service. Const. art. to prepare for defense until nation is in-1, sec. 8. U. S. v. Lambert (C. C. A. 3, vaded. Const. art. 1, sec. 8, cls. 11, 12, 14. 1941), 123 F. (20) 395. U. S. v. Cornell (D. C., D. Idaho, S. D., The power of Congress to compel citizens 1940), 36 F. Supp. 81.

to register for military training is not limCongress has power to raise and support ited to actions taken after formal declaration an army before a formal declaration of war of war. Const, art. 1, sec. 8. Id. has been made, and such power is not pro- Congregg has the power to raise and suphibited by constitutional provision granting port armies by conscription in time of peace Congress power to declare war since the as well as in time of war. Const. art. 1, powers of Congress to raise and support sec. 8, cl. 12. U. S. v. Garst. (D. C., E. D. armies and to declare war are separate, and Pa., 1941), 39 F. Supp. 367. it was not intended that the powers should Under the Constitution, Congress has plenbe so linked together as to prohibit Congress ary and exclusive power to raise and support from raising an army when and under such armies, and such power is not limited to circumstances as in its judgment it is im- accepting voluntary enlistments but includes perative or needed, or an emergency exists, power to exact and enforce military duty, before Congress has declared war. Const. and Congress can determine how the army art. 1, sec. 8, cls. 11, 12. Id.

shall be raised, the period of service, the

age at which a soldier shall be inducted, the II. Conscription.-The Selective Training compensation he may receive, and the service and Service Act and regulations thereunder to which he shall be assigned. Const. art. 1,

valid, notwithstanding that there has sec. 8, c. 12. U. S. V. Newman (D. C., been no formal declaration of war. Const. E. D. Ill., 1942), 44 F. Supp. 817.




Notes of Decisions 1. Jurisdiction in general.—The constitu- Mere ownership and use of land by United tional provision giving the United States States does not withdraw land from State's exclusive jurisdiction over places purchased jurisdiction, but constitutional provision au"for the erection of forts and other thorizing exercise by Congress of exclusive needful buildings" is applicable to lands over legislation over places purchased for erection which the Federal Government seeks exclu- of forts, magazines, arsenals, dockyards and sive jurisdiction, and does not limit the right other needful buildings becomes applicable of acquisition of land by eminent domain. when United States acquires land with U. S. C. A. Const. art. 1, sec. 8, cl. 17. State's consent for those purposes.

U. S. In re United States (two cases) (D. C., C. A. Const. art. 1, sec. 8, cl. 17. State v. W. D., N. Y., 1939), 28 F. Supp. 758.

Blair (Ala., 1939), 191 So. 237.




Where realty on which the United States delegation of Congressional authority. The constructed housing project for defense Oklahoma Workmen's Compensation Law of workers was merely leased to the United 1915 applied to the whole state and was States, the land was not "purchased" within merely in abeyance on the Fort Sill reservathe meaning of constitutional provision giv. tion until enactment of the act of Congress ing Congress power to exercise exclusive of June 25, 1936, when it became effective legislation over all places purchased by con- the Fort Sill reservation without the sent of State legislature for erection of necessity of acceptance by the Oklahoma legforts, magazines, arsenals, dockyards, and islature. Ottinger Bros. Clark (Okla., other needful buildings, nor within meaning 1942), 131 P. (2d) 94. of State statute consenting to the purchcase A municipal income tax ordinance is apor condemnation by the United States of plicable to income earned by a resident of such places, and the United States did not another State as an employee of the United have "exclusive jurisdiction" of the realty, States at a navy yard located within the and hence defense worker who resided in territorial limits of the city imposing the housing project was entitled to register as tax by virtue of the act of October 9, 1940 an elector of the State in county where (54 Stat. 1060); 4 U. S. C. 14, authorizing project was located. Act Cong. March 1, State taxation of income received in Federal 1941, 42 U. S. C. 1523 note: U. S. C. Const. areas, notwithstanding the fact that the State art. 1, sec. 8. cl. 17; Pol. Code, sec. 34. had granted to the Federal government exJohnson v. Morrill (Calif., 1942), 126 P. clusive jurisdiction over the navy yard, with(2d) 873.

out qualification or restrictions, save as to Land acquired by the United States, but service of criminal and civil process. Kiker v. which is not subject to the exclusive legis. City of Philadelphia (Pa., 1943), 31 A. (20) lative authority of the United States under 289; certiorari denied (1943), 320 U. S. 741. • the Federal Constitution, remains subject to the jurisdiction of

II. Acceptance of cession.-Acceptance of the State in matters not inconsistent with the free and effective cession of land within State to Federal Gov

ernment use of the land for the purpose for which

is evidenced by Federal Governit was acquired. U. S. C. Const. art. 1, sec.

ment's purchase of the land and may be

presumed therefrom. Pound Gaulding 8, cl. 17. Id.

(Ala., 1939), 187 So. 468. Proceeding to review an award of work

The acceptance by United States of man's compensation made for an injury sub-clusive jurisdiction over lands ceded by State tained on the Fort Sill military reservation

to United States without reservation except on May 15, 1941. Fort Sill was set aside

for service of process was to be presumed military reservation prior to 1907.

in absence of any contrary intent. Code Oklahoma was admitted to the union in 1907. 1907, secs. 898, 899. State V. Blair (Ala., The Oklahoma legislature ceded exclusive

1939), 191 So. 237. jurisdiction over Fort Sill (subject to certain

The filing of the metes and bounds dereservations not material in this case) to the scription and of the map or plat of land United States in 1913. The Oklahoma Work- purchased by United States with consent of men's Compensation Law, under which the the State is a condition precedent to trangaward was made, was enacted in 1915. By fer of jurisdiction under the general ceding the act of June 25, 1936, Congress authorized



statute. Const. art. 1, sec. 8, cl. 17. Valley the enforcement of state workmen's compeno County v. Thomas (Mont., 1939), 97 P. (20) sation laws within areas subject otherwise

345. to the exclusive jurisdiction of the United States. By an act of June 4, 1941 the Okla- III. Reservations by State.--Whenever homa legislature accepted the provisions of State reserves any power at all, even that the act of Congress of June 25, 1936. The of serving civil or criminal process, emplcyer contended that the act of Congress lands purchased by United States for pur. of June 25, 1936 was a delegation of Con- poses designated in provision of Federal gressional jurisdiction in conflict with Art. Constitution respecting exclusive authority I, Sec. 8, Cl. 17 of the Federal Constitution of Congress over places acquired by purchase and that, in any event, it was ineffective with State's consent, the jurisdiction 13 prior to acceptance by the Oklahoma legis- concurrent and not exclusive, since the only lature. Award sustained. Held: Art. I, exclusive jurisdiction is that of the Federal Sec. 8, Cl. 17, applies only to lands pur- Government. Const. art. 1, sec. 8, cl. 17. chased by the United States with the consent Valley County v. Thomas (Mont., 1939), 97 P. of state legislatures; it has no application (20) 345. to lands acquired by the United States with- A State, in ceding jurisdiction to United out the consent of the state legislature, ex- States over land purchased with State's clusive jurisd:ction which has been consent,

for purposes mentioned in ceded subsequently by the state legislature. provision of Federal Constitution respecting The act of Congress of June 25, 1936 was a exclusive authority of Congress over places valid partial recession of jurisdiction, not a acquired by purchase with State's consent,







upon forts,






may make such reservations of jurisdiction | Maryland not territory belonging to and such conditions as it sees fit, and the State of Maryland, but was territory which Federal Government can accept the juris- had been ceded to United States Government. diction subject to such conditions as are not United Services Automobile Ass'n. v. Harman inconsistent with proposed governmental use. (Tex., 1941), 151 S. W. (20) 609. Const. art. 1, sec. 8, clause 17. Id.

If housing projects constructed by the The fact that State of Maryland in ceding United States for defense workers to Federal Government the ground

magazines, arsenals, dockyards, which Fort Hoyle was established reserved other needful buildings, within meaning of the right to go upon the reservation for the the provision of the Federal Constitution purpose of serving process in no way pre- giving Congress power to exercise "excluvented Federal Government from having full sive legislation" over such places, and State and complete jurisdiction over the military statute consenting to the purchase or conreservation. United Services Automobile demnation of such places by the United Ass'n. v. Harman (Tex., 1941), 161 S. w. States, then the projects were acquired by (20) 609.

the United States with the consent of the

legislature, and the United States had “exIV. Effect of cession. (8th paragraph.)–clusive jurisdiction" over the land Change citation to read: Ryan

quired; the quoted terms being synonymous.

State (Wash., 1936), 61 P. (20) 1276 ; affirmed Pol. Code sec. 34; U. S. C. Const. art. 1, (1937), 302 U. S. 186.

sec. 8. cl. 17. Johnson V. Morrill (Calif., Where State has ceded land within its

1942), 126 P. (2d) 873. territory to Federal Government, Govern

Appeal from a judgment of the Supreme ment acquiring exclusive jurisdiction there. Court of California refusing to prohibit the over, municipal laws of the State which state Department of Agriculture from re

& milk dealer are in effect at time of cession generally voking appellant's license as remain in full force until abrogated by Fed on the ground appellant had bottled milk in eral Government, except insofar as they are California for sale to the United States at inconsistent with Federal laws, but State's Moffett Field, California, at a price less subsequent legislative enactments do not take

than that fixed by state law. Moffett Field effect in ceded area. Pound V. Gaulding

is subject to the exclusive jurisdiction of the (Ala., 1939), 187 So. 468.

United States. The state law, which Where United States had purchased terri- deliberately designed to control indirectly the tory from State for military reservation sub-price of milk on military reservations, prosequent to enactment of statute ceding to

hibited bottling, handling or transporting United States jurisdiction over land which milk in California proper for sale in areas might thereafter be purchased, with reserva

within the external geographical boundaries tion only for service of process, United States of prescribed marketing areas, whether or not had exclusive jurisdiction over territory, and

the place of sale was part of such an area. gasoline stored and used there by defendant

Reversed. Held: The California statute is in carrying out contract with United States in conflict with Art. I, Sec. 8 of the Federal was not subject to gasoline excise tax, Code

Constitution insofar as it purports, directly or 1907, secs. 898, 899; Gen. Act 1923, p. 86; indirectly, to regulate the price of milk Gen. Acts 1927, pp. 16, 326; Gen. Acts 1931, sold on military reservations subject to exp. 859; Gen. Acts 1932, Ex. Sess., p. 314;

clusive Federal jurisdiction. Pacific Coast U. S. C. A. Const. art. 1, sec. 8, cl. 17. State

Dairy Inc. v. Department of Agriculture of v. Blair (Ala., 1939), 191 So. 237.

California, (1943), 818 U. S. 285. Upon the transfer from a State to the VI. Scope of Clause. The purpose of the United States of exclusive jurisdiction of a Fort Peck Dam project, which flood site for a post office, the State laws in effect control and improvement of navigation, was at the time continue in force as Federal not within intent of provision of Federal laws, save as they may be inappropriate to Constitution respecting exclusive authority of the changed situation or inconsistent with Congress over places acquired by purchase the national purpose, and save as Congress with State's consent, nor was the purpose may have provided otherwise. James Stew of the project within intent of the general art & Co. v. Sadrakula, Adm. (1940), 309 ceding statute of Montana granting consent U. S. 94; affirming (N. Y., 1940), 5 N. Y. S. to United States to purchase State lands (20) 260.

for purposes described in Federal Constitution. While the Government building contract Const. art. 1, sec. 8, cl. 17. Valley County is in sense the means by which the v. Thomas (Mont., 1939), 97 P. (20) 345. United States secures the construction of its Lands purchased by the United States in post office, the contractor in carrying out connection with construction of the Fort the contract has not the immunity of Peck Dam project were not purchased for Government instrumentality. Id.

purposes of erecting "needful buildings" The military reservation of Fort Hoyle, within meaning of the general ceding statute although within territorial boundaries of

the provision of Federal Constitution





concerning exclusive authority of Congress within meaning of provision of Federal Conover places acquired by purchase, with stitution concerning exclusive authority of State's consent, for the erection of forts, Congress over places acquired by purchase, magazines, arsenals, dockyards, and other with State's consent, for erection of forts, needful buildings, as respects whether the magazines, arsenals, dockyards, and other State of Montana had ceded jurisdiction to needful buildings, notwithstanding that United States over such lands under the buildings were needed for warehouses, offices, general ceding statute. Const. art. 1, sec.

and housing facilities in connection with 8, cl. 17. Id.

construction of dam, and that Fort Peck

townsite was used for such purpose. Const. The Fort Peck Dam is not a "building" | art. 1, sec. 8, cl. 17. Id.

Section 10. Power Denied to States


Notes of Decisions I. Constitutionality of State Laws. An since the amendment drops out as though "emergency" authorizing invocation of police never passed. Reitz v. Mealey (D. C., N. D. power is an unforeseen occurrence or com- N. Y., 1940), 34 F. Supp. 532; affirmed bination of circumstances which calls for (1942), 316 U. S. 33. immediate action or remedy ; a pressing neces- A statute will survive the excision of unsity. U. S. C. A. Const. art. 1, sec. 10. constitutional parts unless it is apparent Jefferson Standard Life Ins. Co. v. Noble that the legislature would not have enacted et ux. (Miss., 1939), 188 So. 289.

it without the invalid parts. Id. Though court should give respect to legislative declaration that emergency exists, au- II. Impairment of contract obligations.thorizing invocation of police power, so far There may be a valid impairment of obliga28 such declaration relates to present facts, tions of contracts during a public emergency court may not shut its eyes to an obvious by proper exercise of police power of the mistake when validity of the law depends State. U. S. C. A. Const. art. 1, sec. 10. upon the truth of the declaration. U. S. C. Waterville Realty Corp. v. City of Eastport Const. art. 1, sec. 10. Id.

(Maine, 1939), 8 A. (2d) 898. The court has the duty, if reasonably pos- In determining whether the enactment of sible, consistent with protection of constitu- a statute allegedly impairing obligation of tional rights, to resolve all doubts to contracts was justified by public emergency, validity of statute in favor of its constitu- the fact that act was entitled as one "Creattionality, sustaining it, if it can be done as ing a Board of Emergency Municipal Fia whole, or if it cannot be done, as to the nance," without expression of facts in a prepart of it that is constitutional. Buck et al. amble constituting a public emergency, does v. Gibbs, Atty. Gen. of Florida, et al. (D. C., not compel a conclusion that there was & N. D., Fla., 1940), 32 F. Supp. 510; affirmed "public 'emergency" rather than one solely (1941), 313 U. S. 387.

private affecting only certain municipalities. A statute itself constitutional is not af. Pub. Laws 1937, c. 233; U. S. C. A. Const. fected by an unconstitutional amendment, art. 1, sec, 10. Id.


Section 2. Powers and Duties of the President


In General

By Executive Order No. 8983, December 18, 1941, the President appointed a commission to investigate the Japanese attack of December 7, 1941, on Hawaii. The act of December 23, 1941 (55 Stat. 853), authorized this commission to compel the attendance of witnesses and the production of books, papers, and documents.

By Executive Order No. 8991, December 26, 1941, the President directed the Secretary of Commerce to meet the requirements of the Secretary of War and the Secretary of the Navy as to the issuance of weather reports and not to disclose information which may be considered of value to the enemy.

By Military Order of June 18, 1942, the Office of Coordinator of Information, was there after to be known as the Office of Strategic Services, and was transferred to the jurisdiction of the United States Joint Chiefs of Staff. Executive Order No. 9312, March 9, 1943, modified the above order to the extent of defining the foreign information activities of the Office of War Information.

« PreviousContinue »