Hawaii v. Gordon

PETITIONER:Hawaii
RESPONDENT:Gordon
LOCATION:Formerly S. H. Kress and Co.

DOCKET NO.: 12 ORIG
DECIDED BY: Warren Court (1962-1965)
LOWER COURT:

CITATION: 373 US 57 (1963)
ARGUED: Apr 15, 1963
DECIDED: Apr 29, 1963

Facts of the case

Question

Audio Transcription for Oral Argument – April 15, 1963 in Hawaii v. Gordon

Earl Warren:

Hawaii, Plaintiff versus Kermit Gordon.

Attorney General Kobayashi.

Bert T. Kobayashi:

Mr. Chief Justice, may I please the Court.

This is an original action brought in this Court by the State of Hawaii against David Bell former Director of Bureau of Budget for whom Kermit Gordon the new Director has been substituted.

The Budget Director is charged with the responsibility of administering certain provisions of the Hawaii Statehood Act.

These are the provisions setting up a program for the review of federal need for retained lands and properties in the State of Hawaii and for the conveyance of surplus, unneeded land according to the state.

This Court has granted all motion, full need to file complaint in this case.

This case is now before the Court on cross- motion with judgment on the pleadings filed by both parties.

We believe that the case is right for a decision on those cross motions.

The immediate practical issue here involves four housing projects, which constitutes a major part of the Hawaii public housing.

The military department who controls the land in question have certified that these lands are surplus of the military need.

If our interpretation of the Hawaii Statehood Act is correct then these lands will be conveyed to the state without being placed under auction block to the highest bidder.

To explain the basis of our claim, it is necessary to go back briefly into Hawaiian history.

Hawaii was once a separate independent nation, when it was annexed by the United States in 1898, the United States took without compensation, without payment of compensation, title to all the publicly owned land in the Republic of Hawaii.

These lands were quite expensive, approximately over 44% of the entire land area of the territory.

The legal title to these extensive lands very largely remained in the United States until we were granted statehood in 1959.

We have what the Statehood Act called the public land, sometimes called ceded land.

They are other two types of land involved in this case.

Arthur J. Goldberg:

[Inaudible]

Bert T. Kobayashi:

Justice Goldberg initially 1,773,000 acres of land out of a total land area of 4 million acres of land in Hawaii were ceded to the United States.

Subsequent to 1898 and up to 1959 most of the ceded land has been returned to the state.

And ceded lands are lands that have been originally owned by the state.

Presently approximately 400,000 acres of land are being held as ceded land by the United States, and also presently approximately 30,000 acres of land, which is the called the Federal after-acquired land are being held by the United States.

Arthur J. Goldberg:

Is there any quarrel General over the 400,000 acres of ceded land?

Bert T. Kobayashi:

In issue here, no.

Arthur J. Goldberg:

No.

Bert T. Kobayashi:

It’s presently however being processed through the special provision in the Hawaii Statehood Act.

Whatever ceded land United States decides that it does not need, then State of Hawaii could receive, but if the Federal government decides it needs it, we still cannot get it sir.

Potter Stewart:

Yes.

There is no dispute as to the meaning of the Statehood Act with respect to that land.

Bert T. Kobayashi:

No sir, no sir Justice Stewart.

William J. Brennan, Jr.:

Well, then Mr. Attorney General how many acres are concerned with in this case, the Hawaii Claim?

Bert T. Kobayashi:

Justice Brennan the total acreage involved in this particular type of land numbers about 30,000.

Out of say 30,000 I doubt very much if initially about 1,000 would be involved, but the total is 30,000.

William J. Brennan, Jr.:

1,000 that acreage of —

Bert T. Kobayashi:

30,000 acres.

William J. Brennan, Jr.:

On which there is presently construction?

Bert T. Kobayashi:

Presently under the public housing we have approximately 275 acres involved.

[Inaudible]

Bert T. Kobayashi:

Most of the installations are all on ceded land.

On the Island of Oahu the main island wherein out of 700,000 people in the State of Hawaii, 600,000 approximately live on the island.

28 major military installations are located on the Island of Oahu.

[Inaudible]

Bert T. Kobayashi:

Yes sir.

Arthur J. Goldberg:

And is it your position that those also should be considered surveyed by government to determine if it needs them, those installations.

Bert T. Kobayashi:

They are being surveyed now because they are on ceded land.

Arthur J. Goldberg:

I see, oh yes.

Bert T. Kobayashi:

Very few on purchased lands.

Arthur J. Goldberg:

Yes.

Bert T. Kobayashi:

May I proceed?

Arthur J. Goldberg:

Yes, proceed please.

Bert T. Kobayashi:

There are two other types of lands involved in this case, the territorial lands and the federal after-acquired land.

The territorial lands are lands, which are very partly by transfer by the United States received that is portion of ceded land and partly by purchase of condemnation under the territory’s power as territorial government.

The federal after-acquired lands which is the type of lands an issue in this case, were the lands that the Federal Government required for specific federal purposes throughout the year after annexation.

These were acquired from private parties by condemnation purchase, gift and the like.

But I want to emphasize if the Court please that the great bulk of the lands which the United States acquired and kept until statehood were the ceded lands.

Now these ceded lands were intended to have been held in trust with the people of Hawaii.

Actually however as time went on more and more of the lands were withdrawn for specific federal use and I want to emphasize if the Court please, again that the trust was never recompensed for this very extensive taking of lands by the Federal Government.

Even the land switched to territorial government, acquired itself were always subject to withdrawal for federal purposes, in which case the United States got the use of the land and paid no compensation.

It is about the status of the federal after-acquired lands when they become surplus that this case centers.

Bert T. Kobayashi:

The housing projects here aforementioned are located on the federal after-acquired lands.

When state attempts — yes sir.

Arthur J. Goldberg:

Land, after-acquired land by Hawaii, by what?

No issues?

Bert T. Kobayashi:

No sir.

Arthur J. Goldberg:

Under the Statehood Act of Hawaii [Inaudible]

Bert T. Kobayashi:

Hawaii does get the territorial lands —

Arthur J. Goldberg:

[Inaudible]

Bert T. Kobayashi:

Yes but still, even such lands are subject to withdrawal by the United States for a period of five years at the state has —

[Inaudible]

Bert T. Kobayashi:

Yes sir.

May I proceed?

Once state obtained in 1959, the state did not get title to all and nearly all of the lands which the United States had obtained free from the State of Hawaii in 1898.

This happened primarily because the best of ceded lands in Hawaii are originally intended to be held in trust for Hawaii were largely withdrawn from the trust without compensation and were kept by the United States.

And on top of that, as I said a moment ago under the Hawaii Statehood Act, the Federal Government was to permitted to go on making land withdrawals for a five year period after statehood.

In other words, Hawaii was compelled to give up urgently needed lands because they were needed by the Federal Government.

Even though they were rightfully theirs under any equitable principles.

Now Hawaii has a shortage of land.

Much of the land is mountainous and is capable of very limited use.

Population density is high as I said a moment ago, and on one island, we have practically all the people 600,000.

Here there are extensive holdings by the Federal Government, somehow most of the good ceded lands are located on the Island of Oahu and somehow the Federal Government saw fit to take away most of the ceded land located on the Island of Oahu.

And most of those lands are badly needed for public housing and for other housing purposes.

We feel that it was to rectify this inequity that Congress enacted certain provision under Statehood Act.

For those provisions, the Statehood Act has offered to us for ratification contain a procedure under which the state would get surface Federal land under that procedure all Federal surface lands in Hawaii whether ceded lands or after acquired land were to be conveyed to the states.

This procedure was not restricted to ceded land and territorial land as the Solicitor General states.

It was extended to all Federal lands in Hawaii otherwise there would be no compensation for the state for the best of the ceded and territorial land, which had been taken by the Federal Government without compensation and were permanently lost to Hawaii.

The Federal Attorney General in his opinion when he passed on this matter recognized the state equitable position, an equitable claim, here for all surplus Federal land in Hawaii although disagreeing with the State, it saw that the State had an equitable claim in an allotment of unneeded surplus after-acquired land, a claim that Hawaii as he puts it “ought to receive the surplus after-acquired property in compensation for the many sacrifices that Hawaii made for the United States.”

And as a basis for this, he particularly mentioned extensive ceded land that the United States was not parting with.

The interpretation to state as containment for does not put it in a favorite position as compared to the other states and obvious comparison is of course the State of Alaska admitted to the union only a year before we were admitted.

There were no ceded or trust land in State of Alaska.

Bert T. Kobayashi:

All the Federal land there, were purchased by, purchase of valuable consideration.

Nonetheless, Alaska was given all of its territorial lands and a grant of over 100 million acres of Federal land, which is 25 times the total acreage that we have in the State of Hawaii.

Arthur J. Goldberg:

[Inaudible]

Bert T. Kobayashi:

That’s my understanding sir.

It’s federally owned land sir.

Arthur J. Goldberg:

[Inaudible]

Bert T. Kobayashi:

In a sense yes Justice Goldberg.

Arthur J. Goldberg:

[Inaudible]

Bert T. Kobayashi:

Because in Alaska, we take a position of 100 million acres of Federal land and I am sure some of them were purchased for valid consideration which can be called after a quite profit were eternal by the grants of the state.

Now we are asking only a portion of or total of 30,000 acres after-acquired land.

So it is similar.

Arthur J. Goldberg:

[Inaudible]

Bert T. Kobayashi:

Fact of the result is the same Justice Goldberg.

Potter Stewart:

The history is a bit different, Alaska was purchased by —

Bert T. Kobayashi:

Alaska sir.

Potter Stewart:

And Hawaii was an independent —

Bert T. Kobayashi:

[Inaudible]

Potter Stewart:

An extra agreement by the request of the party here at least by agreement —

Bert T. Kobayashi:

I would say by mutual agreement.

Potter Stewart:

(a) mutual agreement.

Bert T. Kobayashi:

It’s great but different because as I stated initially 44% of the lands in Hawaii were owned by the Republic of Hawaii.

It was never purchased for any valuable consideration by the United States.

That 44% of land were all taken over by the Federal Government without paying any compensation for it.

Potter Stewart:

Now is it sure – are you implying that there was something overreached and that this was wrong right from the beginning, this was a taking of property without, in a wrongful way.

Bert T. Kobayashi:

I do not wish to imply that sir, because by mutual agreement we became a territory of the United Stated and by mutual agreement the public lands were turned over to the United Stated, but I wish to state this sir, that all this acreage were used by the United States without paying any compensation and the United States has received tremendous value for said lands and a great portion of that has been retained permanently by the United Sates again without extra compensation for the retention.

Potter Stewart:

And will be retained as you concede under the Statehood Act that that part of it which is found to be necessary for the United States.

Bert T. Kobayashi:

That is correct Justice Stewart.

May I proceed?

The question before the Court today is of great importance to a rapidly growing state with as limited, with as little land as Hawaii.

My associate Dennis Lyons will demonstrate, I firmly believe that a little construction of the act gives all surplus Federal land in Hawaii to Hawaii instead of having them put on the auction block.

Bert T. Kobayashi:

I have emphasized the equities of the situation.

The needs which Hawaii has for these lands, the fact that Hawaii was not equitably treated as other state with respect of land holding, because as I read in the Defendant’s brief, his press for contention seems to be that the literal words of the act should be ignored because Hawaii does not have an equitable claim for said land.

The Court pleads on the contrary, Hawaii has a strongest of the equitable claim, and we believe Congress recognize this, thanks.

Earl Warren:

Mr. Lyons.

Dennis G. Lyons:

Mr. Chief Justice may it please the Court.

The Hawaii Statehood Act contains provisions for the review and conveyance to the State of Hawaii of surplus Federal land in Hawaii.

The legal question at bar today is how broad are those provisions?

The State contends that those provisions cover any surplus Federal land, that for five years after the passage of Statehood Act, the Federal government must review all its Federal landholdings in Hawaii and make conveyances of those which are found to be surplus to the State.

Here we are talking primarily about military lands because the military departments are the largest Federal landholders in the State.

Now the Defendant on the other hand claims that these provisions for the review and conveyance of surplus land simply cover the so called ceded lands that the Attorney General spoke of, and the so called territorial lands.

How did Congress go about making this provision for the review and conveyance of Federal surplus property in Hawaii?

It did this through the provisions of sections 5(e) and 5(c) of the Statehood Act, which are found on page 4 of the Appendix to our complaint.

The provision which sets up the procedure is Section 5(e).

Section 5(e) provides and I quote, “That within five years from the date, Hawaii is admitted into the union, each Federal agency having control of any land or property that is retained by the United States pursuant to sub section (c) and D of this Section shall report to the President, the facts regarding its continued need for such land or property”.

The Section then goes on to provide that if it’s determined that there is no need by the United States for the land or the property it shall be conveyed to the State of Hawaii.

The sub sections coverage in the first place is broad, it refers to any land or property that is retained pursuant to sub-section (c) or D.

We are not for the moment concerned with sub-section D, but now to turn to sub-section (c), sub-section (c) in turn covers and again I quote, “Any lands and other properties back on the date Hawaii is admitted into the union are set aside pursuant to law for the use of the United States in certain specified matters provided in the Section.”

As to these lands sub-section (c) says, they shall remain the property of the United States, sub-section (e) then builds on sub-section (c) and says, that as to those lands these any lands which are retained the procedures of review, screening, and conveyance if they are surplus shall operate.

Sub-section (c) in turn as we see uses broad language, it uses the words any lands and other properties.

Sub-section G gives some definitions for the terms that are provided in the Act and referring to lands and other properties, it defines that simply by terms of extension, imposes no limitation whatsoever on the content of any lands and other properties.

It does not contain any provision such as the defendant claims is implicit in the Act limiting any lands and other properties to the territorial lands and the ceded lands.

There is no such provision in the Act.

We contend that this broad language in Subsection G and the failure of Congress at that point to impose any limitation along with the fact that there is no limitation expressed in Sub-section (c) or in Sub-section (e), indicates that Congress intended this to be a broad provision for the review and conveyance of Federal surplus land in the State of Hawaii.

This is to carry out the purpose of Congress to provide some sort of recompense to the State of Hawaii for the withdrawal of the best of the ceded lands over the years, lands which from the very beginning, from the annexation resolution itself and shortly there afterwards, were always conceived, always held in a special trust for the State of Hawaii.

It was as it recommends for the withdrawal, the extensive withdrawals from that category of land that the Congress made the provision question.

There is nothing in the language of the act that says that the lands which are subject to the procedures setup by the act or the termination of need and possible conveyance to the State of Hawaii under Subsection (e), must be lands which otherwise would be conveyable to the State under Subsections 5(a) or 5(b).

The defendant, however, says that there is some such limitation implicit on some basis in the act.

There is not a word in the statute which supports it.

We contend that this is not an appropriate case to make such an implication, even if there were some basis for making an extreme implication of the sort that the defendant suggests, if this were an ordinary statute.

The fact must be based that this is not an ordinary statute.

Dennis G. Lyons:

This was not an act which was complete and perfectly enacted simply when Congress voted it and the President signed it.

There was another legislative body, if you please that had to act on this provision before it could become a law and go into full force and effect.

In Subsection 7(b) of the State of the Act, which is reproduced on page 7 of the appendix, a provision is contained which makes an explicit submission of a proposition to the Electorate of Hawaii.

3 reproduced there asks the Electorate of the State of Hawaii if they consent to the Land Grant provisions contained in the Act.

Arthur J. Goldberg:

[Inaudible]

We do not think this question was flushed out at that time, your Honor, the public press, I think the issue is probably somewhat broader than this.

But this was legally a question submitted for an explicit vote by the Electorate of the State of Hawaii.

Has any other state on admission have a provision such as this and —

Dennis G. Lyons:

There is nothing quite like this sir, Your Honor.

We contend here that Congress had to tailor something preciously fit into the specific needs and the specific problem in the State of Hawaii.

Actually there is no other state that has the land history that Hawaii had.

The only other really authenticated case of the annexation of an independent country by this country was when this country, I wouldn’t say took over, when this country and the (Inaudible) Texas merged and there is a provision there which provided for almost immediate statehood.

In that case, that bulk of the state lands were not taken from Texas.

And there was not this period of 60 years during which more and more land was drawn for Federal use, which required a compensating provision to be made.

Arthur J. Goldberg:

[Inaudible]

Dennis G. Lyons:

That’s correct.

Arthur J. Goldberg:

[Inaudible]

Dennis G. Lyons:

Essentially, the issue, that’s essentially the issue your Honor, the question is whether Congress put into the Statehood Act by implication of provision of which descended to that level, which descended to that level is what it means, we contend Your Honor.

Arthur J. Goldberg:

[Inaudible]

Dennis G. Lyons:

Yes, that is our position your Honor.

We cite numerous cases in our reply brief primarily to the effect that where an enactment is submitted for a popular vote and popular ratification, that there is no room for the implication of any of restriction not implicit in the language of the Act itself, and we think this proposition is one which should apply to this statute here.

However, what legislative history there is, it’s definitely on the side of the State of Hawaii, most cogent items of the legislative history.

The essential choice that was made in drafting this act, after the three — after the admission of Alaska in 1958, there were three alternative provisions which for the first time put into the Statehood Bills, a provision for the conveyance of surplus Federal property to the State.

There are three of these forms which were pending before the House of Interior and Insular Affairs committee.

One simply covered the ceded lands, provided for conveyance and surplus ceded lands.

The next covered both the surplus ceded and surplus territorial lands.

And the third and broadest form is the form that wound up in the act, the form that covers any lands.

The House Committee which fixed the final meeting of the Act chose the broadest alternative and it was this form that was enacted into the statute and at the very next session of the congress after this debate was flushed out, after this question came to the court, that very same committee in reporting to the Congress an act designed to implement the procedures under the Statehood Act made an explicit declaration that the state’s view of the Act was the proper one.

We quote on page 40 of our opening brief, it’s in these terms, the committee stated Subsection (e) is referenced to land or property that is retained by the United States includes in some cases, mainly those covered by Subsection (c) all land whether it falls within the definition of public land given in the act or not.

And I might add that the opinion of the Interior Department, which was the executive department most intimately connected with the affairs of Hawaii over the years, accorded with the opinion of the state upon the act.

Earl Warren:

Is that in the record?

Dennis G. Lyons:

Yes, we reproduced that in our appendix also, Your Honor.

The Interior Department’s memorandum is on page 59 commencing in the appendix.

The Interior Department, I think spoke quite cogently.

It said, in the circumstances, there is no reason to suppose that Congress did not mean precisely what it said, that lands including but not limited to ceded lands are subject to reporting by federal agencies and possible subsequent conveyance to the state.

The land subject to the screening provisions at the opinion, and again I quote, “Is also land acquired by the United States by purchase, condemnation, donation or by any other means.”

And the Interior Department commented, “We must suppose that Congress meant what it said.”

And that basically is what this state is conveyed here today.

This again was after the debate, after the controversy came to light and the Budget Bureau I believe asked for expressions of opinions from the various governmental departments, that were concerned with the situation in Hawaii.

Arthur J. Goldberg:

[Inaudible]

Dennis G. Lyons:

This was before the Attorney General spoke.

I should say that the departments that only had an interest in Hawaii as a landholder took a contrary opinion.

Arthur J. Goldberg:

[Inaudible]

Dennis G. Lyons:

I have intended to submit that on the brief Your Honor, but in view of Your Honor’s question I think I shall say a very few words about it.

Arthur J. Goldberg:

[Inaudible]

Dennis G. Lyons:

If Your Honor please, we intended those prayers to the read only in connection with the preceding prayers.

In other words, if the only basis that the defendant has for failing to convey is the basis that it puts forward, we would expect that he convey.

But our position is not that we are seeking any affirmative decree and we would want those prayers to be read only in connection with the preceding prayers.

Arthur J. Goldberg:

[Inaudible]

Dennis G. Lyons:

I think I do, because the defendant may have some other basis on which perhaps these lands will not be conveyable.

I know of none Your Honor and it is a practical matter, complaints of this nature seem to include these affirmative prayers and these are passed without objection generally.

For example, in some of the passport cases of this Court has passed on, there have been affirmative prayers for the issuance of a passport, whereas the hurdle of the case is simply that the Secretary of State be enjoined from refusing a passport on a particular ground.

Arthur J. Goldberg:

[Inaudible]

Dennis G. Lyons:

I would think we could then get a mandamus Your Honor.

Hugo L. Black:

May I ask since this controversy occurred, any effort has been made to secure congressional action of any kind?

Dennis G. Lyons:

No effort that has been organized along that line Your Honor.

I don’t believe any bill to clarify has been introduced.

There was the declaration which the House Committee which authored the legislation made in its report in which it interpreted in the Act, but there has been nothing by way of attempt to actually pass the statute.

The basic position that the defendant is taking as we understand it, is that by some process of implication, the provisions of subsection (c) of Section 5 must be read as being simply exceptions to subsection (a) and subsection (b).

In other words what the defendant is saying is that subsection (c), operates only on land, which is otherwise conveyable under subsections (a) and (b).

Dennis G. Lyons:

The state as I say rests on the plain language of subsection (c) and in subsection (e).

In support of its contention the defendant has cited the legislative history relating to the statehood bills that were considered at other sessions of the Congress, the bills that were considered seriously from about 1950 through 1958, which were not passed.

And it cites that there was nothing in those bills which did anything like what the state is now contending final bill did.

And from this it seeks to obtain some support for its position.

Potter Stewart:

Mr. Lyons you say you were relying on the plain language of subsection (c).

Dennis G. Lyons:

Yes Your Honor.

Potter Stewart:

Isn’t the phrase set aside rather a little less than plain if we are talking about something which has been condemned by and is owned by the United States?

Dennis G. Lyons:

Your Honor, that is another —

Potter Stewart:

Properties that are set aside pursuant to law under any of four different provisions, an act of Congress or Executive Order or Presidential Proclamation or gubernatorial proclamation of Hawaii.

That phrase would little — not quite consistent with your argument if it is not entirely plain language.

Dennis G. Lyons:

Your Honor this I think leads us directly into another argument which the defendant makes about which I like to speak.

The defendant contends that use of the words set aside in Section (c), in effect is an indirect or implicit limitation on the coverage of Section 5(c).

Potter Stewart:

That it necessarily refers to ceded lands.

Dennis G. Lyons:

Well, that view was taken for a while by some of the agencies of the government, but the Solicitor General’s position now as I understand it is that it applies both to the — only to the territorial land and to the ceded land, those two categories, otherwise he is in trouble with definition in Section 5(g).

He contends that, that language amounts to a word of art.

That it can only apply to ceded lands and to territorial lands, that it can’t apply to anything else.

Our position is that those words in the context of course do apply to territorial and ceded lands, there is no question about that.

It’s common ground for both parties.

But we contend that they are broad enough to apply to the formal processes under which the United States acquired the after-acquired federal lands, that is to the processes of purchase condemnation, gifts, inheritance, the buys and the like.

More precisely to the status of those lands after they were acquired through these processes.

Our position is that once there is a condemnation of land or a purchase of land for a specific federal purpose, that land can be spoken off as being set aside, as being appropriated for that specific federal purpose.

And that, that wording of the Act is broad enough to cover the processes thereby — rather the status resulting after land was condemned or purchased by the United States for a specific federal purpose.

Now the defendant has attempted to create a sort of myth, a sort of structure about the words set aside and he has gone to some lengths to do this, at one point the Federal Attorney General’s opinion says that the word traced back to the 1898 joint resolution of Congress annexing Hawaii, but one may look through that resolution in vain for the word.

Then the Attorney General said that the word set aside has a very particular meaning dealing with Hawaii, and one example of this very specialized usage of the words in connection with Hawaii occurs in Section 16(b), where the words set aside are used, this is on Page 16 of the appendix.

What the Attorney General seems to have overlooked in citing that as a specific use of terminology that was peculiar to the State of Hawaii, is that, that provision is copied verbatim from the Alaska Statehood Act which was passed the year before.

The next provision that the Attorney General, pardon me the Solicitor General says is indicative of a specialized peculiar restrictive meaning for the words set aside is Section 91 of the Hawaii Organic Act, which was the provision permitting withdrawals of ceded land.

And again that provision doesn’t use the words set aside, it talks about taking the land for the usage and purposes of the United States.

Actually the same sort of language that one uses in cases of condemnation and goodly proportion of the orders withdrawing land that are pursuant to Section 91, don’t use the word set aside either, they use the word withdrawn or the words reserved or the words taken.

Again we are not saying that the words set aside are inappropriate to describe the processes whereby the ceded lands and the territorial lands were withdrawn.

We simply say that, that terminology had not reached the stage of being a word of art, that it couldn’t be restricted to that usage, that it fits just as well the situation in which after lands are purchased or condemned, they are appropriated, they are withdrawn, they are truly set aside for a specific use of the United States.

Dennis G. Lyons:

And we cite in our briefs, cases in which the courts have used the language set aside and the synonym such as set apart and appropriate in referring to the status of lands after they are condemned.

There is a substantial judicial usage of the terms along these lines including opinions of this Court.

Another basis on which we contend that the language of subsection (c) and of subsection (e) is not simply an exception to the language of 5(a) and 5(b).

Is the fact that there was an alternative bill before the House Committee, HR 1918 it was styled, which very clearly attained the result which the defendant contends Congress attained in the statute as passed.

This form of the bill was not chosen by the House Committee when it settled the language of the Act.

Instead it chose the broad form.

Now the defendant says that the differences are only editorial changes, that they are simply matters of drafting.

If this was the case, we must marvel as we stated in our reply brief at the number of drafting errors and drafting problems that the draftsman made when he put to one side the version which clearly accomplished what the defendant contends for and drafted the final form of the Act.

In the first place he included definitions in Section 5(g) of the Act, which are entirely too broad and entirely unnecessary.

In the second place after he had been very careful in subsection 5(d), where it wasn’t even strictly necessary to be explicit, but subsection 5(d) was simply an exception to subsection 5(b), he proceeded to leave off all the words of limitation, when he drafted subsection 5(c) and to make it stand on its own feet and to refer to any lands and all their property.

And there are number of other serious drafting difficulties which are inherent in the defendant’s construction which we review in our brief.

The alternative to the view that the state takes of the Act, is one which leaves the gap in the Act, one which makes no provision whatsoever for the surplus federal after-acquired property.

One which just leaves the matter up to the general disposal statutes, which can put the property on the block for a sale to the highest bidder.

The defendant’s construction would make the Hawaii Statehood Act, if it had no provision like Section 5(c) and as we construe 5(c), it would make it the only Statehood Act passed in this century which does not contain a provision expressly retaining the federal government’s land.

The Alaska Act contains a general retention provision for the federal government’s land, just as we contend that subsection 5(c) is.

And there are broad retention provisions in all the other Statehood Acts passed by Congress in the 20th century.

The practical alternative as we have said is that the federal surplus property including properties which are a major portion of the state’s public housing will go on the block.

There may well be other surplus lands in the category in question, they would go on the block also.

We contend that Congress meant to compensate the State of Hawaii for the extensive losses of its land, land which was recognized from the beginning as being its inequity, from these extensive losses that took place over the years.

The only way it could do it was by giving the state, the surplus federal purchase property, we contend —

Arthur J. Goldberg:

I’m going to ask you that’s an argument has to be drawn [Inaudible]

Dennis G. Lyons:

There is really nothing of any consequence in the hearings, in the debates.

The reports themselves, the contemporaneous reports are as the defendant I think admits imprecise.

The only clear voice in the legislative history is the declaration by the Committee that drafted the Act past the next year.

We think that —

Potter Stewart:

There is a reference to your argument in the Attorney General’s opinion but I suppose that’s just responsive to your argument, rather than responsive to anybody in the legislative history.

Dennis G. Lyons:

Yes, he states that the — somehow the house’s declaration was negated by the fact that the Senate didn’t take the position on the matter in the same year.

The Senate very clearly didn’t take a position not because it agreed or it disagreed, but because it simply didn’t feel confident to take a position.

Expressly declined to take one, and it must be remembered that the committee which fixed on the form of the Act was the House Committee.

There are the ones who made the basic decision as to what Section 5 should look like and they are the ones who gave the interpretation, the next year.

Arthur J. Goldberg:

[Inaudible]

Dennis G. Lyons:

I think they were consulting throughout your Honor.

I think that is plain, they were the department that was primarily charged with territorial affairs.

The other executive departments were interested only where their own specific responsibilities crossed the affairs of Hawaii such as defense responsibilities in Hawaii.

Arthur J. Goldberg:

[Inaudible]

Dennis G. Lyons:

I believe that it did, but whether precisely the final form did or not I’m just not certain Your Honor.

The state contends that Congress by choosing the broadest alternative here, intended to take a generous approach towards Hawaii’s land problems and to make a broad disposal of surplus federal property.

The executive here took a strange view and a restricted — a constricted view of that statute.

We believe that by so doing the executive overlooked the clear and generous intent of the Congress and in this suit, we look to the Court to restore the original intent of Congress.

Arthur J. Goldberg:

[Inaudible]

Dennis G. Lyons:

It has the right to make the determination whether it is needed or not and I would think that any attempt to review that question would entail the most serious of difficulties.

Arthur J. Goldberg:

[Inaudible]

Dennis G. Lyons:

There is no provision for judicial review in the Act, it is not an Act which sets up a series of private rights.

Thank you.

Earl Warren:

Mr. Barnett.

Wayne G. Barnett:

Mr. Chief Justice may it please the Court.

My argument like the state’s will be limited to the question on the merits, the interpretation of the Statehood Act.

I don’t mean by any means to waive our sovereign in defense, but that question is near to the Court and you recently had occasion to consider it and I think I can help you more, if I devote myself to try to unravel the Statehood Act.

I also like to suggest to the Court that if the Court does agree with the United States or with the defendant, on the merits, would be proper to dismiss the complaint for failure to state a cause of action without passing on the jurisdictional questions.

The Court has done that on a number of occasions.

Unfortunately, we didn’t cite the cases in our brief, but I have supplied the clerk with a lists of such cases, which will be available if the Court should request it.

As background to the interpretation to the Statehood Act, I want briefly to summarize the nature of the land holding in Hawaii, the governmental land holdings in Hawaii at the time of the Statehood Act.

The first major category with the ceded lands, which were given to the United States on annexation by the Republic of Hawaii.

Those were initially governed by the Joint Resolution of Annexation, which appears at page 20 of the appendix to the complaint.

That gave United States title, however it provided that the ceded lands were not to be governed by the general land laws of the United States and rather that except for such part of the lands as were used or occupied by the United States for civil or military purposes, the lands would be used solely for the benefit of the inhabitants of the Hawaiian Islands.

Now that created the trust concept and that undertaking was carried out two years later in the Hawaiian Organic Act, which of course was the basic charter created in the territorial government.

The provision concerning the control of the ceded property is Section 91 of the Organic Act.

And that Section is in the government’s case is central point and we think it is the key to an understanding of the Statehood Act.

It appears at page 63 of the government’s brief.

The first sentence I would like to read part of it, provides that the property that was ceded to the United States by the Republic of Hawaii shall remain in the possession, use and control of the territory.

Wayne G. Barnett:

Until otherwise provided for by Congress or taken for the uses and purposes of the United States by direction of the President or of the Governor of Hawaii.

Now that provision thus gave Hawaii the territory possession of the all the ceded properties subject only to the power to withdraw specific parcels for federal use.

They could be withdrawn under 91, Section 91 of the Organic Act by Act of Congress, by direction of the President or by direction of the Governor of Hawaii, and that as we will later show is the direct antecedent of Section, subsection (c) of the Land Grant Provisions.

I would also like to note at the beginning of the next sentence, because that we will also show is the antecedent to Section — subsection (e).

That provided that any such public property so taken for the uses and purposes of the Untied States maybe restored to its previous status by direction of the President.

That is to say the President could terminate the set aside or withdrawal of the land and return it to the possession of the territory.

Potter Stewart:

Are you saying in fact that the (c) and (e) really could be reenacted — these two sentences.

Wayne G. Barnett:

These are the antecedents.

I will show how (c) and (e) evolved into their final form.

There is also — I went in through the territorial property also which is second category, but my first category are the ceded lands which United States had technical title to, the territory had possession and we have the right to set aside specific parcels by any of these means enumerated in Section 91.

Arthur J. Goldberg:

[Inaudible]

Wayne G. Barnett:

That’s right, this simply says it maybe taken for a use.

Admittedly, set aside language includes this kind of withdrawal and I don’t mean to comply that language is there.

The second category of lands are those that the territorial government acquired in its own right, with the territorial revenues that purchased lands or condemned lands for its own public uses.

Now in 1941, the outbreak of World War II, the Section 73 (2) of the Organic Act, which is also printed in our appendix was amended to make clear that even those lands could be set aside for Federal use by direction of the Governor of Hawaii.

I might say — I don’t think it’s particularly relevant, that Section does use the word set aside.

I don’t attach any imaginary meaning to the word set aside.

The third category of lands probably governmental lands were those that the United States purchased from private owners either voluntarily or through condemnation procedures.

The status of those lands was exactly the same as land purchased in anyplace in the world by the United States.

There is nothing in the Organic Act or any other law relating specifically to Hawaii that has any particular bearing on the status of land the United States purchased from private owners.

And as I say, their status was the same as that of any land, any place else in the world that United States may have purchased, governed by the same rules of acquisition and disposition.

We had possession, the territory had no interest at all.

Those are the three categories, the ceded land between the possession only of the territory subject to the right of its law, the territorial lands which the territory owned and possessed subject again to the right of withdrawal and the United States purchase of properties which United States owned outright and absolutely and possessed solely itself.

On reading the State of the Act of the land grant provisions against that back ground, I think its meaning becomes clear.

Section 5 begins in page 3 of the State’s appendix.

Now, I want to start at the beginning and go through rather than start at the end and work backwards that the State does and I think that really makes the difference.

Subsection (a) says that except as provided in Subsection (c), the state shall succeed to the title of the territory and those lands and other properties in which the territory now holds title.

Potter Stewart:

Where can we find these readily?

Wayne G. Barnett:

That’s page, it is in page 3 of the State’s, I think the appendix.

Potter Stewart:

All right.

Wayne G. Barnett:

So Subsection (a) gave to the state the territorial properties subject to the stated exception as provided in Subsection (c).

Subsection D then served that except as provided in Subsection (c) and D, the United States grants to the State of Hawaii, the United States title to all the public lands and other public property.

Now public lands and other public property is defined is subsection G as ceded lands.

So these admittedly limited to the ceded lands.

So taken together, (a) and (b) gave the State all the ceded and all the territorial properties subject only to the provided exceptions, exceptions provided in Subsection (c) and D.

Now, so that point that we come to Subsection (c) that provides that any lands and other properties that on the date of admission are set aside pursuant to law for the use of United States under, one, any act of Congress, two executive order, three proclamation of the President, four proclamation of the Governor of Hawaii shall remain the property of United States.

Now what is — at least the primary purpose of that is undisputed.

Its primary purpose is to carve out an exception from the grants made in (a) and (b), both of which referred Subsection (c) as an exception and I would note that this specifically incorporates the property set aside for the use of United States under sections 91 and 73(q) of the Organic Act.

And in fact, enumerates all the ways in which such set asides might be affected by act of Congress or by correction of the Governor or the President of the United States.

Now the question in the case is whether Subsection (c) does something more than that and I will comeback to that.

I want to go ahead and complete the outline of the act.

Subsection (d) is not immediately relevant, but it has some bearing in the development of the act in legislative history.

What it does, Subsection (c) related to land that were set aside up to the date of Statehood.

Subsection (d) continues the power to make additional set asides for five years beyond the date of admission, though it is limited to ceded lands that are in fact in the possession of the United States though under informal arrangements with the territory rather than under form of set asides.

In fact it simply gave the military five more years aside which of those that wanted to set aside which to allow to go to the State.

We come then to Subsection (e), which is the focal point or at least initially of the controversy.

So that applies to any land or property that is retained by the United States pursuant to Subsections (c) and (d).

Now any property so retained, the President is required to reappraise – to see if it is still needed for Federal purposes.

If he concludes that is not needed for Federal purposes, it is to be conveyed to the state, any surplus properties within that category, namely lands retained pursuant to Subsection (c) and (d).

Now basically the position of the Government, of the defendant, I’m representing Mr. Gordon if I [Inaudible] I hope you will understand, our position is that the lands retained pursuant (c) are simply those which (c) reserved out of the grants made in (a) and (b), namely the ceded and territorial land which had been set aside and therefore were reserved by (c) out of the grants.

John M. Harlan II:

[Inaudible] I think (g).

Wayne G. Barnett:

(g); first to find public lands have been ceded and says that the term any land shall include that.

I shall not exclude that and that’s quite right.

The reason that this statute necessarily does not use the narrower term public land is because it also applies to the territorial lands, which is not ceded land.

The set aside — it is the knowledge some of the set aside properties originated as territorially purchased property.

They were not ceded properties, and they could be set aside under 73(q) of the Organic Act.

And to make these provision broad enough to include such property, it was necessarily to use the language any land rather than any public land.

Public land is a narrower term.

I think that is a red herring in that issue.

The statutes to begin with — but let me just — the statutes to begin with any land or any person is fairly common, you then carve down initially all inclusive categories and here it is carved down initially any land that is retained pursuant to Subsection (c) and the question is what that limiting phrase means.

Wayne G. Barnett:

Now, before I go back to Subsection (c), I would like to — initially a question of interpreting that phrase in Subsection (e); now pursuant to Subsection (c) could mean that the State assumed that it means simply as declared Subsection (c).

It’s enough if Subsection (c) declares to retain it.

Another meaning and I think a more plausible one is that pursuant to Subjection (c) means by virtue of subjection (c), something that the United States retained because of Subsection (c) that it would have not have retained without it and if the later is the meaning, it does not include purchased properties because we would have kept purchased properties if Subsection (c) had never been in the act.

This is the reason simply being that there was nothing giving them away, there is no need to have a provision saying anything about them and they would have remained our property.

And reading the reference pursuant to Subsection (c) as a reference to a operational provision, it does not include purchased property.

We retained the purchased properties not pursuant to Subsection (c), but by virtue of the absence in the act of anything giving them away.

That’s a complete answer of the state’s case, probably even going back to the Subsection (c).

Hugo L. Black:

What lands are given away?

Wayne G. Barnett:

By Subsection (e), the basic grant is of ceded in territorial properties.

The lands were ceded to us in 1898 and the lands that the territory purchased out of territorial revenues, those were all given to the state.

Out of that grant, we reserved the properties that had been set aside specifically for Federal use.

Subsection (e) then says that you shall reexamine your need for those lands that you set aside and convey them if you find that they are no longer needed.

The whole act becomes one very simple unified — serves one very simply unified purpose, the grant of all the ceded and all the territorial properties except those that were set aside and are found still to be needed for the United States.

Arthur J. Goldberg:

[Inaudible]

Wayne G. Barnett:

I want to go through the paragraphs and show what the changes are.

It wasn’t said explicitly in the paragraphs.

The paragraph said nothing about purchased property.

It was simply a different location of the reservation of the set asides.

And it’s a change in the location of exactly the same language of the set aside provision on, which the State builds, but I would like to make a chronological development to that after I go through the text of the statute.

Now, but I will assume for the moment that it will be enough to satisfy Subsection (e) if you could find in Subsection (c) simply a declaration that after all the government was retaining purchased property.

It would be an unnecessary declaration to have that, but if it was there, I will agree arguendo that would bring it within Subsection (e), and then turn back to Subsection (c) itself, because I think I can show that it doesn’t contain such a declaration.

And now in looking at Subsection (c), I first want to emphasis that there is no disagreement about its operative function.

What it does independently?

Independent force is solely as an exception to (a) and (b).

It reserves from the lands otherwise granted by (a) and (b) the ceded and territorial lands, those that had been set aside in enumerated ways, and that the only effected independently has and that is agreed.

The difference is that the state says, where it also recites, simply declares that the United States is retaining the purchased lands unnecessarily, but they didn’t have simply a declaration that provides a predicate for the later operation of Subsection (b).

Earl Warren:

We will recess now Mr. —

Wayne G. Barnett:

Mr. Chief Justice.

I just began to examine the precise language of Subsection (c).

I have made the point that its only operative effect is to carve out the exceptions to (a) and (b).

Wayne G. Barnett:

I would like to note that that function provides a complete explanation of the precise choice of language used in Subsection (c) and only that function.

Subsection (c) talks about land set aside pursuant to law used in United States under any that enumerates four things, act of Congress, executive order, proclamation of the President, proclamation of the Governor.

(a) rather unusual category I think and what it is explained by, that choice of language is explained by the Organic Act, which had conferred the power to withdraw ceded properties and later the territorial properties under the — by the enumerated means.

And all – I don’t say that concludes the case, but I do want to note that that function is a complete and adequate explanation for the choice of words used in Subsection (c).

Now the state also — state says that it — nevertheless they agree that does that, but they it is also broad enough to encompass purchased properties and it constituted a declaration that the purchased properties are to remain the properties of United States.

I would say first that if the words could be made to do that, it remained a very awkward way to describe a purchased property as the setting aside pursuant to law for the use of United States under an act of Congress.

It’s a very cumbersome way to say property purchased by the United States.

I want to show that the words can’t be made to fit and the state says that when you purchase property or condemn it, it is set aside for the use of the United States presumably from all the other property in the world.

And that it’s pursuant to law under an act of Congress, because Federal agent can buy property only if it’s been authorized to do so by statute.

Now, I would like to break that up into two steps.

First, set aside for the use of the United States, that phrase.

Now it says for the use of the United State and it seems to me that the words used and implied were a transfer of use and possession, not a transfer of title, set aside the use of the property.

You remove it from the possession of one person to the possession of another, not a transfer of title.

Now they try to get over that problem by speaking of the dedication of purchased property to a specific Federal use, you take it for defense uses rather than some other use and that is a setting apart for a particular use, but the statute doesn’t talk about setting aside for particular uses, it talks about setting aside for the use of the United States.

Hugo L. Black:

May I ask you Mr. Barnett, I’m not sure that is in history.

Is any history in this country in connection with that thought that you have now, when states have condemned property heretofore for public use, what has happened to the property when they cease to use it for that purpose in the Maine and is there any history in connection with Federal condemnation in that field.

Wayne G. Barnett:

The federal properties — I am unaware of any case in which under a state land grant or properties purchased by the United States from private persons or condemned specific parcels have been given to the state.

They speak of Alaska as giving away purchased properties.

That right, they were purchased from Russia for $7,200,000 and they purchased, I think it was called Seward’s Icebox, that’s the purchase they take about in Alaska.

Those are the public domain lands in Alaska.

We acquired the cession of sovereignty and ownership by a inter-governmental purchase, if you like, but it’s still a purchase of a very different kind and the kind of purchase or condemnation of specific parcels of land from private owners that we are concerned with here and they to my knowledge have never been given to a state as upon the creation of the state —

Hugo L. Black:

In other words –-

Wayne G. Barnett:

— the Surplus Prosperity Act.

Hugo L. Black:

— let me make sure I understand you then you go.

Wayne G. Barnett:

Yes.

Hugo L. Black:

As I understand you, therefore the government has bought property for use for military installation or for a post office or for something of that kind, it has always owned that property, absolutely and to dispose of it even though the property cease to be used for the purpose for which it was purchased?

Wayne G. Barnett:

Yes sir, quite true.

The Surplus Property Act that generally governs dispositions not just Hawaii but throughout has a system of priorities for disposition of surplus properties and some of them I think are given to states for specific uses I think for schools, hospitals, there are some provisions to make specific fortuitous dispositions of surplus property and those would equally apply to Hawaii, but only — that is the only kind of grant ever made of this kind of property.

Hugo L. Black:

I recall we’ve had some cases that perhaps the reason the authority did, railroad, we had one case in particular, the problem was who the title would go back to if the railroad cease to use its property for a railroad that was quite a question, problem?

Wayne G. Barnett:

I don’t know the case, I guess it would come back to the United States.

Hugo L. Black:

What is that?

Wayne G. Barnett:

I don’t know the case, my guess would be it would comeback to the United States.

I don’t know what —

Hugo L. Black:

Well, this was not a United States case.

This was —

Wayne G. Barnett:

I’m sorry.

Hugo L. Black:

It came to us from Illinois where they were [Inaudible] some oil —

Wayne G. Barnett:

No I think the federal land —

Hugo L. Black:

Or right of way.

Wayne G. Barnett:

They were made to support the building the railroads.

Hugo L. Black:

What’s the history and connection with the state condemnation than purchases of property?

Wayne G. Barnett:

Well, I don’t suppose they would have a similar question, after — before the —

William J. Brennan, Jr.:

Well Mr. Barnett I can tell you this, because that came up in my state when I sat on the New Jersey Supreme Court.

(a) condemnation for the use of educational purpose, the building is no longer used for educational purpose.

The question then arose whether the municipality could sell it, part of the proceeds or whether there was a possibility of averment, the heirs of the owners who owned it at the time —

Wayne G. Barnett:

They made a contribution — well I don’t still —

William J. Brennan, Jr.:

But that was the problem.

Wayne G. Barnett:

But no, is the status of — well certainly the status can be —

William J. Brennan, Jr.:

I don’t remember how we decided it.

[Laughter]

Wayne G. Barnett:

The status of the public land, the public lands of Hawaii are very different any other state.

What would normally be the public lands are what we refer to here as ceded lands.

They were the public lands of Republic of Hawaii, and they were given to the United States much in the same way as Alaska was ceded to the United States by Russia.

So really the parallel there is between the ceded lands and public domain in Alaska, which we did in truth as part of my purchase in a very different sense, but generally there is no more reason why Alaska would have — I think Hawaii would have an interest in surplus military installations that happened to be located in Hawaii for strategic reasons than any other state.

Hugo L. Black:

Well do any of the other states, have any of them had an agreement of this kind?

Wayne G. Barnett:

Oh, I grant you if this agreement encompasses this kind of property there is a reason apart from — I hope to show that —

Hugo L. Black:

Yes I understand.

I just wondered if this would have repercussions in connection with land in other states such as Alaska or other states have been admitted.

Wayne G. Barnett:

I’m unaware of any possible or similar problem of that sort.

John M. Harlan II:

At some point I wish you would come back to the small exchange we had and tell me why you think (g) is red herring?

Wayne G. Barnett:

The argument, they make — the statute says any land, rather than I suppose what they mean they should say any public land.

John M. Harlan II:

Yeah, I know but (g) certainly shows apart from the arguments you are making that the Act was intended to cover the waterfront as one would suppose, Congress would do an important —

Wayne G. Barnett:

I would doubt that (g) shows that.

I was just — first of all the definition of public lands was first inserted at the insistence of the United States at the military department I think to make clear that it did not include any federally purchased property, that’s where the definition first came from.

Now they added the qualification through the definition that any lands or properties, includes public properties.

I take it to avoid any negative implication, that if they defined public property ceded and then used any property elsewhere, it might be an implication that, that excluded public property.

I think that’s all that (g) says.

And as I say, in fact the term public property would not have been appropriate in these uses.

It had been a term broad enough to encompass the properties otherwise within (a), namely the territorial property and that’s why they don’t use the term public land in subsection (c) and (e).

Arthur J. Goldberg:

[Inaudible] this controversy arose [Inaudible]

Wayne G. Barnett:

Yes sir.

Arthur J. Goldberg:

And at least they were familiar with properties [Inaudible]

Wayne G. Barnett:

Now I’m rather inclined to think that’s what they meant to say.

What they said is perfectly opaque.

They simply say that any land means any land and we’ve never suggested it didn’t mean any land.

What we have argued is that the qualifying phrases that follow that open ended term carve it down to size.

Now, whether they were purposely equivocal or whether they meant to answer the question I don’t know.

I do know that although some effort was made to have the Senate Committee endorse that interpretation, they refused to do so and I think it is fair inference — there was some doubt about the finding.

Arthur J. Goldberg:

[Inaudible] as I recall Attorney General’s opinion Congress of the United States have said that according to Senate Committee [Inaudible]

Wayne G. Barnett:

Oh yeah, yeah.

Arthur J. Goldberg:

[Inaudible] they didn’t have time.

Wayne G. Barnett:

That’s right, they just said — they said we don’t have time.

It’s a complex problem we are going to take it up.

Arthur J. Goldberg:

Has anything happened since that time?

Wayne G. Barnett:

Nothing officially.

Arthur J. Goldberg:

The committee has not [Inaudible]

Wayne G. Barnett:

No.

Hugo L. Black:

Are we correct in assuming the only consequences of this lawsuit relate to whether the land the government doesn’t need in Hawaii, it gives up because it doesn’t need it.

And the value of that land will go to the State of Hawaii instead of stay in the Treasury of United States?

Wayne G. Barnett:

That is my understanding.

Wayne G. Barnett:

That is all that is involved in the case.

As to the quantity of land it would be, turn on that, I don’t know, for housing —

Hugo L. Black:

Part of that –-

Wayne G. Barnett:

I don’t know — someone has suggested something $15 million, $20 million dollars worth.

Hugo L. Black:

About what?

Wayne G. Barnett:

But I don’t even want to give the figures since it’s so much out of the air, something on the order of $15 million or $20 million is perhaps a guess.

Hugo L. Black:

So this is a lawsuit of over $15 million to $20 million, if that’s about right?

Wayne G. Barnett:

Yes, but that’s what it’s about.

Now (c) as far as the — I suggest that set aside from the use of United States, it doesn’t — it can’t be made to government to include a condemnation or act of purchase.

Arthur J. Goldberg:

So Mr. Barnett what do you [Inaudible]

Wayne G. Barnett:

Perhaps you do, I’m confident that no one that sat down to draft a statute to talk about condemned lands, to use that language.

Arthur J. Goldberg:

How would you describe it in your own language?

Wayne G. Barnett:

I would call it a purchase or a condemnation.

Arthur J. Goldberg:

What happens to the land [Inaudible]

Wayne G. Barnett:

I would not talk about transferring the use of it, I would talk about transferring the feasible ownership of it.

Potter Stewart:

Acquisition?

Wayne G. Barnett:

Acquisition —

Potter Stewart:

When you go to a shoe store you don’t say I’m here to set aside a pair of shoes for the use of Mr. Barnett, you say I’m here to buy a pair of shoes.

Wayne G. Barnett:

That’s right, that’s right, but let me go into the other aspect of this —

Arthur J. Goldberg:

For use.

Wayne G. Barnett:

For use.

The other aspect is the statute speaks of setting aside pursuant to law under any of the four means.

Now they say the relevant one mean is pursuant to law under an act of Congress.

Now in their use that becomes a redundancy, because the act of Congress they talk about is the one that authorized the acquisition.

Now, in our interpretation it is not a redundancy.

Pursuant law is pursuant to the reserved power in the Organic Act, the alternative means of setting things aside by an act of Congress, means an act of Congress setting aside a specific parcel pursuant to that reserved power, and that was done for example in the creation of the National Park, The Hawaii National Park in the Act of 1916 specifically set aside a large area of ceded property for use as a National Park.

So in that use there is no redundancy, pursuant to law and pursuant to the authorizing statute under an act of Congress, is an act of Congress which executes that authority.

Now it is only reading it that way that first category, an act of Congress occupies the same function as the other three.

The other three aren’t authorizing things.

There are needs of executing some general power.

Wayne G. Barnett:

Now, additionally I would like to suggest, under their supposed literal reading that this includes purchased lands, under that reading literally it is not limited to lands in Hawaii.

Their reading would equally apply to property in the District of Columbia if there was surplus and under their reading if you applied it literally they would be entitled to surplus property any place in the world.

Hugo L. Black:

What was the title of the act?

Wayne G. Barnett:

No, I agree that we have no trouble carving it down by an implication.

All I am suggesting that a literal, a purely literal reading that they suggest there is, creates a problem.

Hugo L. Black:

Are you agreeing that literally that Congress has agreed to what they say?

Wayne G. Barnett:

Oh yes, but we say the – (c) and (e) are confined to Hawaii because (a) and (b) are confined to Hawaii, and if you read (c) as an exception to (a) and (b) you have no problem.

Now we read it as so confined by reading the language set aside pursuant to an act of Congress or direction of the President or the Governor as a specific reference to the power granted in Section 91 and 73(q) of the Organic Act.

And it’s by those references that it is confined among other things to Hawaii.

The State esques those limiting references and ends up with an open-ended provision that they have to find some other way to carve that down because it obviously cannot as you suggest [Inaudible]

Hugo L. Black:

Has the state indicated what it wants this property for?

You have to sell it, is that it?

Wayne G. Barnett:

No, they specifically pointed to four housing projects which they say are — they would use as low cost public housing.

Hugo L. Black:

State public housing?

Wayne G. Barnett:

As I — I don’t quite know what the arrangements would be, but they want to use it as low cost housing.

Potter Stewart:

Now existing federal housing projects, aren’t they?

Wayne G. Barnett:

Yes, they are housing —

Potter Stewart:

They have already been developed —

Wayne G. Barnett:

They were navy, for navy personnel originally.

John M. Harlan II:

What this all comes down to as I understand it.

You are both in agreement with each other that the Act can be read either one of two ways.

Wayne G. Barnett:

I don’t mean to be in agreement with that.

John M. Harlan II:

Aren’t you?

Wayne G. Barnett:

I was just trying to show that it cannot be read that way.

John M. Harlan II:

I thought what you answered Mr. Justice Black indicated that.

Wayne G. Barnett:

Oh no, I agree that if their position were otherwise right, I would have no trouble carving it down to Hawaii.

I agree one can make that implication.

John M. Harlan II:

Well, that means that you can read the act —

Wayne G. Barnett:

I don’t agree that —

John M. Harlan II:

You can read the act the way they do.

Wayne G. Barnett:

No, I said if it is otherwise right, and otherwise is a big word.

William O. Douglas:

I misunderstood you, I thought you agreed with it.

Wayne G. Barnett:

Oh no.

William O. Douglas:

I thought it was right to this convention.

Wayne G. Barnett:

I hope not, no, no.

Hugo L. Black:

I thought it was right if you read the language literally.

Wayne G. Barnett:

No, I say read it literally.

Pursuant to law and an act of Congress isn’t redundancy, as they read it.

I don’t know how they make both phrases sort of function, because they say that a condemnation satisfied this because it has to be authorized by a statute.

Now that makes it both pursuant to law and both under an act of Congress I take it.

They satisfied both requirements to one source of authority and that I think is an impossibility.

And secondly the statutes speaks set aside for use of United States, which I say, the more literal reading is that is a transfer of use.

Also they talk about a set aside for a specific use and the statute doesn’t talk about set aside [Inaudible]

Hugo L. Black:

[Inaudible] using your shoe example?

Wayne G. Barnett:

Well, the transfer of ownership includes use, I agree.

I don’t call that a very literal reading.

Hugo L. Black:

But you say, it’s the same as if a man goes into the store in your shoe illustration and says I want to get to use those shoes while I need them, what do you charge me for?

Wayne G. Barnett:

You could say that I don’t call —

Hugo L. Black:

Would that be a sale or would that be a transfer too?

Wayne G. Barnett:

I think if Congress or the statute about paying the use of shoes, you would not read it as, one I’m taking about being title to shoes.

Hugo L. Black:

That indicates that there is some little doubt about definition of use.

Wayne G. Barnett:

Let me add on further text to our argument that under their reading of (c), the language in (e) that says lands retained pursuant to subsection (c) becomes surplusage.

They say that it applies to all lands.

So that (e) would mean the same thing, and simply said, lands retained by the United States, and didn’t add pursuant to subsection (c).

That phrase performs a function, it meant to distinguish lands retained under (c), as distinguished from lands otherwise retained and I say the lands otherwise retained are the purchase properties to retain simply because they aren’t given away.

Now let’s go to another provision of the Act, 16(b), which I think is independently a fairly complete answer to their argument.

That’s at page 20 or 16 of their appendix.

This is a reservation by Congress of legislative jurisdiction over certain lands, namely the lands that are controlled or owned by the United States held for defense or Coast Guard purposes.

Then it says whether such lands were acquired by cession and transfer to the United States and set aside by act of Congress or by executive order or proclamation of the President or Governor of Hawaii, the same four things, for the use of United States or were acquired by the United States by purchase condemnation, donation, exchange or otherwise and it will be totally unnecessary to include the second category separately if their interpretation were right.

Now I would like to —

Potter Stewart:

Mr. Lyon’s point was I think that this was lifted right out of the Alaska Statehood Act, am I understanding it correctly?

Wayne G. Barnett:

Right, I think — I prefer not to answer that.

I did look at that reference once and was satisfied it didn’t bear on this problem, but I’m not sure I can tell you why, I prefer not to try to answer it.

Getting to the history which I think is finite to conclusive answer; it’s agreed that all prior bills were limited to ceded and territorial lands, but the 85th Congress, they had all pretty much gotten to the form of the H.R.49.

It was introduced in 85Th Congress by delegate, Burns, he was the delegate from Hawaii.

The form of that is set out in skeletal form at page 47 of the government’s brief, the Lands Act provisions in that bill consisted of only subsections (a) and (b); (a), like the act was limited to territorial property and (b) was limited to ceded properties, they also were subject to the reservation of set aside, except that the reservations were incorporated partly into the granting clauses as provisos.

So subsection (a) gave the state — the territorial lands provided however as to any such lands or other property set aside by active Congress or by executive order or proclamation of the President or the Governor of Hawaii pursuant to law and they mainly so set aside the United States shall be the owner.

And similarly subsection (b) repeated in verbatim the same proviso now that was admitted necessarily limited to those two types of land because it’s partly incorporated into the granting clause.

That bill was reported out by the House Committee in House Report 2700.

The House Committee kept the same form and added two changes to subsection (b).

They extended for five years the power to make further set asides, an unlimited power for five more years to make set aside of the ceded properties and secondly they added a second proviso which appears in page 48 of our brief.

That proviso — second proviso provided further that the provisions of section 91 of the Hawaiian Organic Act which authorized the President to restore to their previous status land set aside for the use of the United States shall continue in effect for a period of five years.

Now that is the origin of the notion that ultimately became subsection (e) of a post-conveyance reappraisal of our need for the set aside and their re-conveyance.

And that was in the 85th Congress, the Committee Amendments.

Now that did not pass and the 86th Congress, which is the one that in which the bill was finally enacted, new bills were put into the hopper. Represent — delegate Burns introduced H.R.50.

I might say if anyone is interested in numbers the repetitive numbers 49 and 50 reflect the hope that Alaska would become — Hawaii would become the 49th and later the 50th State, that’s why the number keeps recurring number 49 in every Congress and then number 50 in the later Congress, but delegate Burns introduced H.R.50 in the 85th Congress.

It was exactly like his bill in the earlier Congress, limited to the two subsections except that he incorporated the Committee Amendment extending for five years the power to restore.

He omitted the Committee Amendment extending for five years the power to make further set asides.

He just wanted the provision favor to Hawaii and that was his bill.

Now in terms of the appellate equity that we’ve heard so much about, I find it rather surprising that the delegate from Hawaii had no time ever proposed giving Hawaii anything more than the ceded and territorial lands, that’s admitted.

H.R.50 was his bill and it was admittedly limited as all the prior bills had been.

The other bill introduced in the significant is H.R.888 that is the bill that revised the format of the Lands Act provisions, introduced in 86th Congress.

Arthur J. Goldberg:

By whom?

Wayne G. Barnett:

That is the important thing; by Mr. O’Brien, Mr. O’Brien of New York.

Mr. O’Brien was the Chairman of the subcommittee on Interior and Insular affairs.

In fact he was the acting chairman of the Full Committee on this matter.

In the 86th Congress he was graciously invited to Chair the hearings before the whole committee, because of his dedication to the cause of statehood.

Arthur J. Goldberg:

Is that the [Inaudible]

Wayne G. Barnett:

The administration was four, actually, but I hope to prove if it was a staff — it was drafted by the staff of the committee.

Mr. O’Brien most significantly was the author of the committee report in the prior Congress that had reported out H.R.49 as amended and he introduced the new measure.

Wayne G. Barnett:

This new measure was described by the Interior Department in their letter when they were asked to comment on H.R.50 and H.R.888, also in 954.

954 was identical to H888, it was introduced Mr. Sailor who was the senior Republican on the Committee.

They — delegate, Representative O’Brien and Representative Sailor were the Republican Democratic offices, they introduced Companion Bill.

The interior department said this in their letter; it is noted that H.R.888 and H.R.954 that’s Mr. Sailor’s bill, which are identical bills.

William O. Douglas:

Where are you reading now?

Wayne G. Barnett:

This is from the hearings on H.R.50 and H.R.888 at the 86th Congress, first session, page 16, letter from the Interior Department commenting on the bill.

John M. Harlan II:

Is this in your brief?

Wayne G. Barnett:

I don’t believe it is, I don’t believe it is.

No, no it’s not.

It is noted that H.R.888 and H.R.954 which are identical bills contain technical language changes prepared by your committee staff with the cooperation of this department, while H.R.50 appears to contain provisions of an earlier bill developed prior to agreement on such technical changes.

They describe it as a staff rewriting.

Now I would like strictly to compare H.R.49 as amended in the prior Congress and H.R.888.

If you put them side-by-side there are no substantive changes unless this implicit one for State against [Inaudible] Now by the time the committee gotten through with H.R.49 in the prior Congress, it was a very cumbersome complex provision.

Subsection (b) alone did these five things.

It granted to the state the ceded properties, it reserved from that grant, the ceded properties has been set aside enumerated ways.

It extended for five years the power to set, make further set asides, it extended for five years the President’s power to restore to set aside properties and it’s incorporated within itself the definition of public lands, all five things in one subsection, it was good cause to revive it.

Now you can trace every provision of H.R.49 into H.R.888. Subsection (a) of the bill is enacted in H.R.888 was limited now since it’s granting the territorial properties without repeating the proviso, but simply referring except as provided in Subsection (c); (b) get the same thing for the ceded property; (c) is where the reservation of set asides was put, D is where they put the continuation for five years of empowering to make further set asides and H.R.888 but that was unlimited, that was a wide open provision.

And (e) is where they put the continuation of the power to make to restore unneeded set aside and the definition was put in the (g).

Arthur J. Goldberg:

You say [Inaudible]

Wayne G. Barnett:

I think —

Arthur J. Goldberg:

[Inaudible] the state department which tells the Attorney General that this question ought to be decided in Hawaii [Inaudible]

Wayne G. Barnett:

I think this time I can have my cake and eat it.

After saying that was the opening sentence, later on in the Interiors letter, they came to Section 5 and they noted that the provision for further set aside was totally unlimited 5(d) and a couple of other aspects related to that and their letter says this.

We understand that these provisions were drafted after consultation with the Department of Defense and we shall therefore not comment on their detail, but they go on to say, I think there are some limit on one of the other provisions and it shouldn’t be quite so open ended.

All the evidence is that this was the land provision was defense department’s concern not Interior’s concern.

Arthur J. Goldberg:

[Inaudible] interested in making sure [Inaudible]

Wayne G. Barnett:

Oh, yes.

Arthur J. Goldberg:

[Inaudible]

Wayne G. Barnett:

Yes, that was their primary concern, but none of them suggested that the purchased properties would ever be given to the State.

In the prior Congress when the definition of public lands wasn’t in the bill, it was added specifically I think it was just — to make perfectly clear that the purchased lands were not to be given.

Wayne G. Barnett:

And I think throughout military department has been — this department has been the agency primarily concerned with the form of these lands, Interior —

Potter Stewart:

But, Mr. Barnett, as my brother Goldberg suggest the Defense Department and I have an obvious interest in being sure that whatever they needed or thought they needed —

Wayne G. Barnett:

Oh yes —

Potter Stewart:

— they get that but they wouldn’t have any concern of whatever with what happened to that property which they didn’t need and that’s the only issue here before us.

Wayne G. Barnett:

Well I’m not sure that’s right.

I’m not quite clear what happens to the proceeds of sale where they go back to the defense appropriations or not.

I’m not — certainly they don’t have the —

Potter Stewart:

And, one of the Surplus Property Act, you think possibly the proceeds might go back in the defense department?

Wayne G. Barnett:

I just don’t know if that’s possible.

I don’t really have any particular idea about it, but let me go on, because I think it gets more conclusive all the time.

Finally, if you simply put side-by-side the House Committee’s report at the prior Congress on H.R.49 and its report, the committee report on the bill as openly enacted, you will find that they are substantially identical in language.

They simply took the report of the prior committee and hatched it up to reflect the change, the main change that they made was to limit the five year period, the right to make further set asides for five years to the properties that the military was already in possession of under informal arrangements, that was the main change.

Now that was the main difference between Mr. Burns’ bill and the committee’s bill H.R.888 and that difference was pointed during the hearings of Mr. Burns pressed the defense department whether they needed that open ended provision and they acknowledged that all they really needed was the authority as to the lands they were occupying already under permit and so that provision is appropriately carved down.

During the hearings which were chaired by Mr. O’Brien, there was never a suggestion that the bill differ in this respect and it was comparative hearing between the two bills, and there was no suggestion to the difference.

The committee reports are virtually identical in the prior Congress and this Congress and there the State says the change occurred.

There is not a word in committee reports to suggest the change and in fact what is in the committee reports, I think quite conclusively shows that the bill was still limited to ceded and territorial properties.

The community report and this is identical in the Senate report and the House report, this is a report on the final bill.

When Hawaii was annexed in 1898 the crown lands of the former monarchy and the government and the government lands became federal lands.

Through the years some of these have been set aside for special purposes.

The territory has administered the public lands except Federal reservations for the United States Annexation.

Section 5 of the bill provides and this is on the specific provision that the state of Hawaii shall succeed to the title now held by the territory to most of the remaining ceded lands and the State points out that that is technically inaccurate, the State didn’t have titles of ceded lands, the United States had technical title, the territory had possession.

We acknowledge that that is right.

That doesn’t detract from the substance of what the committee is saying.

The State shall succeed of the territory — of the territory in the remaining ceded lands saving to the United States title to all the lands set aside for public use under act of Congress, executive orders or Presidential or Governor proclamations.

That’s all it says about Subsection (b) and (c).

Then it says further down, this is in our brief by the way, to the end of the legislative history, it’s on page 55 and 56 of that much.

Then further down the bill also retains in effect President’s authority to restore lands to their previous status after admission, that is how they described (e).

They describe (e) in terms of the old, the original idea of extending that power under the Organic Act for five years.

The power to restore lands to their previous status that was the language of the Organic Act and of the proviso to the bill in the prior Congress and that’s all they thought of (e) as doing and therefore is necessarily be limited to the lands governed by the Organic Act.

I think —

Arthur J. Goldberg:

[Inaudible]

Wayne G. Barnett:

Yes, there is something — again, let me say the — no one has a very clear idea of what title was, everything is little confusing.

In the appendix of the State, page 65 and 66, this is in the house.

In the Senate, there was one simple statement which has no light at all.

This does bear on it.

There is some confusion there, I think it fairly — it’s fairly clear to me what it means.

I’m not sure I can persuade you about it.

There was a question; they were asked about the – Mr. Aspinall — Mr. Gross just asked about, that the President’s power to dispose the property within five years and Mr. Aspinall explained it, and further down Mr. Sailor interrupts at the middle of the page and says, “I should like to call attention of the members of the house to the fact that the federal land in Hawaii comes in two classes,” and first say there are three class.

“First, those to which the federal government has titled and fee.”

I think what he means by that is the purchase of property.

That is the way it spoken up in the military department, property we purchased and no one thinks that the ceded land things we own in (c), we have technical title but only the right of use under the set aside power, those to which the Federal Government has title and fee, those are not affected at all by this bill.

If I’m right about putting in the first sense, he specifically declares those not affected at all by this bill.

Mr. Sailor by the way was the senior republican on the committee introduced the Companion Bill and introduced a Companion – the written bill at the end on it, and so he is relatively authoritative.

Now further down Mr. Gross asked why should they — the grant of the State not come — why shouldn’t the State come to the Congress for the disposal land, rather than letting the President have the authority and Mr. Aspinall who is the chairman of the committee says, “Those territories are in reality properties of the territory of Hawaii and that’s certainly is true only of a ceded in territorial land.

Arthur J. Goldberg:

What [Inaudible]

Wayne G. Barnett:

Page 65.

Arthur J. Goldberg:

[Inaudible]

Wayne G. Barnett:

“Our provision provides that the area is now held by the United States one purpose or another, maybe–”

Arthur J. Goldberg:

That’s another, one purpose or another.

Wayne G. Barnett:

“Maybe held by the federal government for an additional period, but not over five years for determination as to how much of that is needed permanently for the Federal Government.

Arthur J. Goldberg:

[Inaudible]

Wayne G. Barnett:

Well I – I didn’t – because of these ambiguities, I don’t think we can make an awful lot of it.

Potter Stewart:

He does say held but not owned, Mr. Aspinall —

Wayne G. Barnett:

Well, all right, I’ll accept that.

Mr. Justice Brennan?

William J. Brennan, Jr.:

[Inaudible]

Wayne G. Barnett:

I would, the thing it seems to us — the purpose of this never changed from the original bills through to the final bill.

It was always to give Hawaii the ceded and territorial lands subject only the reservation of the set aside if they were found and felt to be needed and that is the only purpose of the bill and Subsection (e) is so limited.

Arthur J. Goldberg:

[Inaudible]

Wayne G. Barnett:

I would say it’s crystal clear, I — the difficulties of — sir, let me say it’s always difficult when a statute is drafted as an exception from an exception which is what (e) is; (c) is an exception is made in (b) and (b) is an exception from (c), and that always creates ambiguity, but in this case, I think the problems of reading the statute the way that the State reads is insurmountable.

Arthur J. Goldberg:

[Inaudible]

Wayne G. Barnett:

Well, the — I don’t know.

The equities get very hard to trace some sort of thing, there were benefits for the territory, they come in a territory of the United States and many [Inaudible] exerted absolute ownership of the land.

Now we didn’t.

We took them basically trust of the Hawaiian people subject only to the right to appropriate what was specifically needed for military and civil purposes.

Now, over the years the President — the presence of the military in Hawaii has been one of the major industries in Hawaii, and has contributed a great deal to the Hawaiian economy.

It’s not been a one way street and basically the ceded land seemed to be in the category generally of the public domain and other contexts, except that we happen to acquire them in this way rather than by purchase from foreign sovereign as Alaska and I don’t know where one gets with the equity.

I find them too difficult to trace through.

I would add to that argument if this is replaced with the ceded land that we took it’s rather surprising that it wasn’t incorporate into the trust provision of subsection (f), which does apply to ceded land, they are held for specific limited purposes by the State of Hawaii, and if the purpose of this was to replenish the fund that we had diminished by taking away ceded property, presumably we would have paid it back in the same category that the land we took now.

I don’t think that proves an awful lot, but it seems to me that you can answer this case only working through the language of statute and the history and I don’t think equities are really going to help.

Earl Warren:

Mr. Lyons.

Dennis G. Lyons:

May I please the Court.

The state is unable to draw the parallel in treatment which is that — between Alaska and Hawaii that the defendant appears to be drawing here.

The Alaska Statehood Act which was passed by Congress just the year before the Hawaii Statehood Act —

William J. Brennan, Jr.:

Excuse me Mr. Lyons did you say that, that Section 16(b) is a carbon copy from the Alaska Statehood Act?

Dennis G. Lyons:

Yes, the only differences are where the Act, where the Hawaii Act says Hawaii, the Alaska Act says Alaska, and where the Hawaii Act says Republic of Hawaii, the Alaska Act says Russia.

We are unable to say that Congress treated Hawaii as equitably as it did Alaska because the fact remains that Congress gave to the State of Alaska 100 million acres of purchased land.

Now it may have been land that was purchased in great part from the Czar rather than from private parties, but it was land that the United States paid a sum of money so large for at the time that the Secretary of State was denounced.

Earl Warren:

Was any of it paid to private parties?

Dennis G. Lyons:

I believe that provision deals with the land that bought from the other — from the colonial power from Russia.

Earl Warren:

From Russia?

Dennis G. Lyons:

The situation in Hawaii on the other hand, was land that was taken over without the payment of compensation, which Congress and the Attorney General at once recognized was held in a very peculiar relationship toward the people of State of Hawaii, it was held in trust for them.

William J. Brennan, Jr.:

Well what about most of these lands were directly concern with [Inaudible] land, those acquired by the Federal Government by condemnation, purchase or other acquisition.

Were they lands in private ownership at the time of Annexation Act?

Dennis G. Lyons:

Yes they were, but it was to — the only grants of purchased land that the United States could make in Hawaii would be the grants such as we claim are made by Sections 5(c) and 5(e) of the Act, the grants of the surplus after acquired property, and this — at most covered 30,000 acres, most of which would never be declared surplus anyhow.

Now this contrasts with the grant of 100 million acres of purchased land in the State of Alaska.

Potter Stewart:

So that’s — I suppose there is probably not 100 million acres in all of Hawaii.

Dennis G. Lyons:

Right.

Potter Stewart:

You are comparing absolute figures between the state bigger even the Texas —

Dennis G. Lyons:

Yes, but we still have an enormous grants of purchased land in the case of Alaska and if the defendant is correct there is no grant of purchased land whatsoever in the State of Hawaii, if we are correct there is grants at the very most of 30,000 acres, very likely not —

Potter Stewart:

I think I understood you to say you are talking about two different things, in Alaska there was a grant to the new state of land which the United States purchased from Russia years ago under Secretary of State Seward.

Here we are talking about whether or not the United States has ceded to the new State of Hawaii land which it acquired by purchase or condemnation or otherwise from private individual land owners.

Dennis G. Lyons:

Yes, but the equities in both cases are whether the United States paid money for the land and this is opposed to the situation in which the United States took Hawaii’s land without paying compensation and immediately recognizing that equitably it belonged to the people of Hawaii.

Now I was —

Potter Stewart:

The government’s point is, as I understand it, that the truth comparison between the two states is that the purchased land in Alaska is the equivalent roughly of the ceded land in Hawaii.

Dennis G. Lyons:

Yes and I think the reason where that falls is that the land that was purchased in Alaska was – a valuable consideration was paid for it by the government and there was never any acknowledgment or any principle that land was held in trust for the people of Alaska, quite the contrary in the case of Hawaii, it was always understood that this land was held in a very special way for the people of Hawaii.

Now the defendant professes not to be able to understand the uses of the language in Section 5(c) as comfortably covering the situation in which the land is condemned, I would like as an example of usage to invite the Court’s attention to page 112 of our appendix, letter by Secretary Forrestal to the Attorney General in connection with the condemnation of the lands in question here.

You will see scattered throughout that letter language, the very same sort of colloquial language that is used in Section 5(c).

Pursuant to the authority an appropriation contained in an act of Congress begins, and a little later under, it is necessary the lands be acquired by the United States of America under judicial process for the use of aforesaid.

Again these are words that the defendant professes not to find comfortable in a condemnation situation.

Under the authority above mentioned that brings in both in pursuant to and the under an Act of Congress.

We contend that the language used in Section 5(c) certainly is broad enough up to cover cases of condemnation and purchase.

The defendant referred to the bill as emerging under the sponsorship of Mr. O’ Brien and a similar bill under that of Mr. Aspinall.

I should like to refer to the hearings before the Senate at the time of 1960 Hawaii Omnibus Act where a witness from the Bureau of the Budget was testifying and the Senate Committee was starting to talk about the statement in the House Report which endorsed the State’s view.

Senator Jackson says, this is on page 35 of the mimeographed transcript of the hearings on S3054 in the Senate.

Senator Jackson says, “What is the affect of the house language?”

And the witness from the Bureau of the Budget says, “They say it includes everything and I spoke to Mr. O’ Brien and Mr. Aspinall and it was their recollection.

Now there was an alternative Bill before —

William J. Brennan, Jr.:

That is not in your brief Mr. Lyons.

Dennis G. Lyons:

It is not Your Honor.

It’s a newly discovered law I’m afraid to say.

The defendant says that the Act as passed simply evolved from HR50.

Now there was an alternative form which the committee rejected before it.

HR1918, which expressly set out and did concisely and accurately what the defendant claims the final bill did.

What the draftsmen did was to reject that form and to use the form that refers to any lands and other property.

In the final analysis though, this Act is one that was ratified by the Electorate of the State of Hawaii after being submitted to them expressly for ratification on the land grant provisions.

On that basis we contend that it is entirely inappropriate to go into the Act in trying to construct upon it implicit references of the most opaque sort to Section 91 of the Statehood — of the Organic Act, which the Act never cites, to Section 73(q) of the Act, which the Act never cites and which never uses the language anyhow.

We think that the approach, the mode that should be followed in reading this Act is the one that Mr. Justice Holmes once said that this is an Act which has been adopted by the people, just as — he was — the constitutional provision about which he was speaking was, and he said there the a popular enactment, this is [Inaudible], must be read and I quote “In a sense most obvious to the common understanding at the time of its adoption, for it was for public adoption that it was proposed.”

In this case Your Honors the state stands on the fair literal meaning of the Act which we believe the most potent words of the legislative history in support.

Earl Warren:

Gentlemen there has been some discussion of the legislative history that is not included in your briefs.

Earl Warren:

Would you mind sending us a memorandum on that subject both of you, thank you.