Humble Pipe Line Co. v. Waggonner

PETITIONER:Humble Pipe Line Co.
RESPONDENT:Waggonner
LOCATION:Alabama State Capitol

DOCKET NO.: 329
DECIDED BY: Warren Court (1962-1965)
LOWER COURT: State appellate court

CITATION: 376 US 369 (1964)
ARGUED: Mar 04, 1964
DECIDED: Mar 23, 1964

Facts of the case

Question

Audio Transcription for Oral Argument – March 04, 1964 in Humble Pipe Line Co. v. Waggonner

Earl Warren:

Number 329, Humble Pipe Line Company, Petitioner, versus W. E. Waggonner, Sheriff, and Number 354, Natural Gas and Oil Corporation et al., Petitioners, versus W. E. Waggonner, Sheriff.

Mr. O’Quin.

Leon O’Quin:

If the Court please —

Earl Warren:

Oh, I —

Leon O’Quin:

Mr. Yancey will represent (Voice Overlap) —

Earl Warren:

Mr. Yancey is going to (Voice Overlap) — very well.

Mr. Yancey, you may proceed with your argument.

Clarence L. Yancey:

Mr. Chief Justice and may it please the Court.

This, we think is a rather simple case and it deals only with whether or not the United States has exclusive jurisdiction for the military air base, Barksdale Air Force Base, located in Bossier Parish, Louisiana.

And also, whether or not having exclusive jurisdiction, the State of Louisiana has the right to tax, to levy ad valorem taxes covering private property located within that military enclave.

The facts are that in 1930, the 22,000 acres comprising Barksdale Air Force Base were transferred by the City of Shreveport, the State of Louisiana and Bossier Levee Board to the Federal Government with the understanding that the Government would build an air base on this property.

Now, these deeds are simple deeds with no — no reservations of any consequence whatever.

It has no restriction in these deeds as to the use to which the property might be put.

In other words, they are fee simple conveyances.

They are in the form of donations as my opponent will point out later.

They’re in the form of donations but there was a very definite understanding that in pursuance of the transfer of these lands to the Government, the Government would in turn build this air base.

The City of Shreveport actually spent several millions of dollars in acquiring these lands so that it might give these lands to the Government in exchange for the installation of an air base at this point.

Today, Barksdale Air Force Base is one of the great air bases of the nation.

The second air force is headquartered there.

There are 8000 people on duty, either military personnel or government employees.

There are 1500 acres, approximately in the cantonment area, about 1500 acres in the landing street proper and then the remainder of it is what they call the East Base and that includes the land which is involved in this particular case.

The — the air — entire air base is on defense.

There are controlled accesses.

The public can’t come and go as it might wish.

Everyone stopped at the gate.

They must — civilians outside must have business on the base in order to visit on the base.

These matters are brought out on the deposition of Colonel Hanlon, the base commander at page 79 of the record.

In 1951, it was determined by the Government that a portion of the base was being drained by oil and gas wells, drilled by others just outside the base.

So the matter was taken up with the Department of the Interior, which of course is the branch of the Government that deals with oil and gas matters, and limited jurisdiction was transferred by Public Order 701 from the Department of the Air Force to the Department of the Interior for the purpose of leasing for oil and gas so that the Government might — following the practices of a good husbandman — get some revenues out of these oil and gas deposits underlying the Government property.

So that was an advertisement for oil and gas leases.

Clarence L. Yancey:

And the people that we represent here were the successful bidders.

So they went in and they drilled oil and gas wells under the terms of this lease and I might say that the lease itself provides that it is subject to the primary jurisdiction of the Air Force and that — that the — in other words, all through this whole matter from the transfer of limited jurisdiction to the Department of the Interior, to the leasing itself that runs through this whole thing, the idea that the primary use of the property is for military purposes.

Then the tax assessor of Bossier Parish, Louisiana assessed the physical properties located on the base and the Sheriff undertook to collect ad valorem taxes on the pipe and on the engines, on the machines, on the derricks and all other equipment placed on the air base by these oil and gas lessees.

Mr. O’Quin will give the facts of his case but they vary in — in some respects from — from our own.

Our plants paid these taxes, ad valorem taxes under protest and filed a suit under Louisiana law to recover the taxes so paid on the protest.

The trial court held for the Sheriff holding that in line with a — a case that had been decided by the Supreme Court of Louisiana, Murphy Corporation versus Fontenot, which we deal within our brief that the property must be used for governmental purposes in order for us to — in order for the taxpayers to escape taxation.

And that there was no governmental purpose involved in producing of oil and gas wells.

That was one point.

In other words, that there was a section, Section K, in the oil and gas lease which says that the lessee must pay to the State and other taxing authorities, all taxes lawfully assessed in the position which the State took, was that — that was a command that all — that these taxes be paid by contract.

We will require to pay these taxes.

In other words, we say that that was a — a — that the State has to contend that that was a retrocession of — of exclusive jurisdiction by the United States giving up of that and allowing of the State to come in and tax through this contract.

The third point was that the — the leasing of a portion of the base for oil and gas production was not a military purpose and therefore, exclusive jurisdiction in the Federal Government was lost.

And the last point is that the United States is dependent upon the public schools of Bossier Parish for the children of the military personnel so that they might receive their education and that certain utilities are furnished to the base by the State.

And the — the Court somehow concludes that that shows an intent by the Government not to accept exclusive jurisdiction over the area.

We, of course, think these points are not well taken.

Those — that case was affirmed by the Court of Appeals of Louisiana and we applied for writs to the State Supreme Court which were denied, and then we came to this Honorable Court.

The — the law involved is the provision of the United States Constitution Article 1, Section 8, Clause 17 of which the Court I’m sure is quite familiar, that says that, “The Congress shall have the Power to exercise exclusive Legislation in all Cases whatsoever over such district,” of course being the District of Columbia, “and to exercise like authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings.”

So the next question is, did the Legislature of Louisiana consent to the acquisition of this military base by the Government?

That consent comes in Act 12 of 1892 of the State of Louisiana, where this consent is clearly given.

That Act says that the United States shall have power to purchase or condemn in the manner prescribed by law upon making just compensation.

Therefore, any land in the State of Louisiana, not already in use for public purposes required for custom houses, court houses, arsenals, national cemeteries, or for other purposes of the Government of the United States.

Section 2 of the Act, now this is the consent part.

Section 2 is the cession part of the Act which independently, over the constitutional provision I referred to, conveys over to the Federal Government exclusive jurisdiction over area such as this.

This is very broad language and this is very important, if Your Honors please, to our case.

This Section provides that the United States may enter upon and occupy any land which may have been or may be purchased or condemned or otherwise acquired and shall have the right of exclusive jurisdiction over the property so acquired during the time that the United States shall be or remained only thereof, for all purposes except the administration of these criminal laws in the State and except for the service of civil and criminal process.

And we think that Act is very significant.

It was in effect, it was the law of Louisiana in 1930 when these lands were acquired by the Federal Government and when the air field was established at this point.

The Government clearly had, we say, exclusive jurisdiction over the area.

Now, the Legislature of Louisiana in 1942 even went further and says, “The consent of the State of Louisiana is hereby given in accordance with the 17th Clause, 8th Section of the first article of the Constitution of the United States to the acquisition by the United State by purchase condemnation or otherwise of any lands in the State requiring for forts, magazines, arsenals, and so on.”

Then the second section of that Act says that, “The United States may enter upon and occupy any land in the State of Louisiana which it did has heretofore acquired or may hereafter acquire by purchase, condemnation, lease or otherwise required for sites for forts, magazines, arsenals, dock-yards and other needful buildings, or for any other purpose of the Government of the United States, and shall have the right of exclusive jurisdiction over the properties so acquired during the time that the United States shall be or remain the owner or lessee thereof for all purposes except the State reserves the right to serve civil and criminal process.”

Clarence L. Yancey:

Now, in this Act, the State even gave up of the provision in the early Act that is criminal law should prevail over this area.

So that, after 1942, the State had reserved no authority whatever over Barksdale Air Force Base except to serve process, absolutely none.

Now, the cases say clearly that since the United States has exclusive jurisdiction over an area such as Barksdale Air Force Base, the State of Louisiana has lost the right to tax thereon.

The leading case is Surplus Trading Company versus Cook decided by this Honorable Court sometime ago, holding that the tax laws of Arkansas could not apply to private property located on Camp Pike, Arkansas.

This has been followed in Standard Oil Company of California versus — Standard Oil Company versus California where this Court held that California cannot impose a license tax on the sale of gasoline within military reservations.

Many other courts have followed the same holding in Yellowstone Park Transportation Company against Gallatin County.

The Ninth Circuit with certiorari denied by this Court held that Montana had consented to the purchase or acquisition by the Government of Yellowstone Park and therefore, Montana could not tax private property located within Yellowstone Park.

Let’s say there are many — many other cases state and federal that have followed the same principle of law, so we say that that is one principle that is well-settled.

The State of Kentucky, the appellate court of that State in 1963 in a case on all force with the present one held opposite to the Louisiana courts in this matter.

In that case, Camp Breckinridge, Kentucky was involved.

A portion of the reservation was leased — excuse me — by the Department of the Interior.

It was a private property located on the lease portion and there was the contention by the state taxing authorities that on a count of the granting of an oil and gas lease which is foreign to military affairs, the — the State had — was given by the Federal Government the right to tax personal property, exactly the same thing is being contended by the State here.

And the Kentucky Appellate Court held that the exclusive jurisdiction of the United States had been maintained over that area.

In these cases, the — that was dealt with the problem of whether or not exclusive jurisdiction of the Federal Government had been lost by certain uses which were not military, where we’ve got military bases.

For example, in United States against Unzeuta.

In that case, the United States had exclusive jurisdiction.

A crime was committed on a right-of-way, which had been granted to a railroad by the United States Government in that case, and a contention was made that the United States did not have the exclusive right to try this man.

The — the murder was committed or the crime was committed in a boxcar located on this right-of-way which had been granted by the United States to the railroad.

And the contention was made that that had been separated from the exclusive jurisdiction of the United States and that the State have the right to — (Inaudible) had the right to try this man.

But this Court held in that case that — the fact that the rail — railroad right-of-way had been granted to private interest did not deprive the United States of exclusive jurisdictional of the area.

Similarly, in Benson against the United States, a portion of Fort Leavenworth was used — being used as a farm and of — a crime was committed on this farm, and the contention was made that the United States had lost exclusive jurisdiction over the area because it was not using it for military purposes.

And this Court held that that made no difference, that it was still a part of the reservation, and that the United States still had exclusive jurisdiction over the area comprising the farm.

Potter Stewart:

Mr. Yancey, does the respondent make anything that the point that this property was not purchased as — and –and Article 1, Section 8, cl. 17 refers only to property which is purchased.

Clarence L. Yancey:

Yes, Your Honor.

Potter Stewart:

But all this property was donated or given to the Government.

Clarence L. Yancey:

Yes, Your Honor.

That point is made by counsel in his brief.

Now, that point had not been raised earlier in this case and for that reason, it’s not dealt with in our main brief.

But Mr. O’Quin, in the supplemental brief filed with the Court, has dealt with the problem of the — whether it’s a purchase or not.

In Arlington Hotel Company against Fant, a portion of Hot Springs National Park was leased by the Government to private interest and the private commercial hotels built there.

Clarence L. Yancey:

And the question there was whether or not the State of Arkansas had the right to pass laws with reference to this hotel and regulate barbering within it.

And this Court held that even though there was a lease to private interest of this hotel on the Government reservation over which the Government had exclusive jurisdiction, nevertheless, the Government retained such exclusive jurisdiction.

The Government itself is much interested in this case as Your Honors have observed because the Solicitor General has filed in this case of a very able brief indicating the interest of the Government and the views of the Government happen happily to coincide with those of the petitioners.

The Solicitor General points out in his brief that this isn’t an important question because there are approximately 5000 areas or enclaves where the Government has exclusive jurisdiction or it says it has it, throughout the country.

And this involves approximately one million people who reside on these enclaves.

So it’s a question of considerable moment as to whether or not, the States have the right to make in roads on the exclusive jurisdiction of the Federal Government over these areas.

There has — there has been published a very able work entitled jurisdiction over federal areas within the States by the interdepartmental committee for the study of jurisdiction over federal areas here in the Government, and it was compound under the chairmanship of an Assistant Attorney General, a very able and comprehensive work.

In that — in that report, we find part 1, page 29 that it has been the historic policy of the Government to require exclusive jurisdiction over all areas.

This was in effect for some hundred years since the history of our country.

It wasn’t until 1940 that Congress said that there had to be an informal acceptance of exclusive jurisdiction over federal areas.

Prior to that time, exclusive jurisdiction was automatic if it fit in with the scheme of the constitutional provision in Clause 17.

Part 2 of this report, page 177, it has said, “Exclusive federal legislation jurisdiction, it seems well settled, serves to immu — serves to immunize from state taxation privately owned properties located on an area subject to such jurisdiction.”

At this point, I should like to note that in Murphy Corporation versus Fontenot, which is the case on which the courts in Louisiana in this case depend, the Supreme Court of Louisiana held that exclusive jurisdiction was actually acquired over Barksdale Air Force Base.

It actually vested in the Government, but that the Government lost it by the granting of this oil and gas lease.

In page 10 of the Sheriff’s brief in this case, he admits that the — that the Legislature of Louisiana had ceded exclusive jurisdiction to the Federal Government over Barksdale, but had lost it on account of this oil and gas activity and other reasons.

Now, if — if Your Honors please, it seems clear that the question of the jurisdiction of the United States over federal areas is a most important thing.

Now, this — the Louisiana courts have held that if somebody in the Department of the Interior grants an oil and gas lease in the ordinary course of business and there’s a clause in there that says that a lessee must pay — must pay state taxes when lawfully due, then the granting of that lease are some clerical question perhaps in the Bureau of Land Management, binds the United States and releases the exclusive jurisdiction of the United States and gives to the State the right to tax.

Then in that decision of — of the state court in the Murphy, Fontenot case, they talk about offense that separates the oil and gas part from the military part of the area and they say that — that shows an abandonment of that portion of the military area and where the oil and gas wells are located.

So that we are wondering what will happen if exclusive jurisdiction was lost when the last drop of oil is produced and the last cubic feet of gas is produced, then what happens?

Under the State’s theory, would the Government come back and resume exclusive jurisdiction?

Is it going to depend on the existence and validity of an oil and gas lease?

Suppose the fence is moved one way or another, few hundred yards, is — is that going to be controlling on whether or not the United States has exclusive jurisdiction over the area?

We say that those things don’t make sense, that those things are entirely too tenuous to regulate the jurisdiction of the United States.

In the interdepartmental report to which I’ve referred, it says and we agree that only Congress has the right to retrocede to the States the jurisdiction to tax over areas such as this, once exclusive jurisdiction has been acquired by the Federal Government, and that it cannot be done in any other way except by the Congress.

To illustrate, Congress has passed the Buck Act which retrocedes to the States the right to levy income tax and sales and used taxes over exclusive federal areas.

Then came, the Hayden-Cartwright Act where oil and gas products could be taxed by the State.

So obviously, the Congress felt that States had no right to levy these taxes or it wouldn’t have passed those acts giving the States those rights.

And in the Solicitor General’s brief filed here, there’s a note which shows that they found 29 instances where there had been a retrocession by Congress to the States of the right to tax and do other things over these exclusive federal areas.

And we say — and the Government says that it is necessary that there’d be congressional action in order for the State to be granted the right to tax over areas such as this that we have here.

The principal points of the Sheriff in this case seem to be clustered around the idea that although exclusive jurisdiction was admittedly in the Federal Government, it’s been lost by the granting of this lease.

Clarence L. Yancey:

It’s been lost by the erection of this fence that they keep talking in — talking about.

Then they go on to say that there is no military purpose in the use of this portion of the base for the production of oil and gas.

Well, our answer to that is that first of all, the base commander said clearly in his deposition, that even though there — there’s a — a few oil and gas wells around and incidentally, that it has regulation about the derricks and regulation about everything else so that the military use is — is primary but the commander goes onto say that even in this area, it is used for military purposes and he spells them out.

It’s a survival training area, a tip — a — a wingtip tank drop area and he spells out a number of others where they use this very land for military purposes today.

Then we get to the argument about the — about the schools and the — and the public utilities.

I suppose that the theorem of the State must be in order to maintain your exclusive jurisdiction, a federal area must be entirely self sufficient.

You must have your own schools.

You must have your own electric plant and your own water scheme and everything else.

It seems to me that the argument is not very sound that you lose your exclusive jurisdiction if you rely on the State for public utilities and for furnishing the schools for the children of the base.

Now, if Your Honors please, in conclusion at this point, I’m merely going to say that I think we should stick to the fundamentals here.

We should stick to the constitutional provision.

We think that exclusive jurisdiction in the Government was established pursuant to that provision.

Secondly, another avenue of exclusive jurisdiction and entirely independent of the constitutional provision in Clause 17, is the voluntary cession by the State of Louisiana to the Federal Government over areas such as this, of exclusive jurisdiction.

And that exclusive jurisdiction, once having large as it admittedly was here cannot be this large except by act of Congress, and we have not had an act of Congress in this case.

Thank you.

Earl Warren:

Mr. O’Quin.

Sorry Your Honor.

Leon O’Quin:

If the Court please.

The Humble Pipe Line Company is the owner of two interstate oil pipelines that extend to — to a nine-tenths miles within the Barksdale Airport Base limits.

Those lines were assessed for ad valorem taxes in 1853 at — at standard values by the Louisiana Tax Commission and a State in its political subdivisions, levied taxes upon those assessments, ad valorem taxes for the year 1953.

Those taxes were paid under protest in this suit filed to recover the taxes paid on the ground that the — the State and its subdivisions were without territorial jurisdiction to levy the taxes within the governmental enclave or which the United States had exclusive legislative jurisdiction.

The — the difference in the case of Humble Pipe Line Company and the Natural Gas and Oil and Mississippi River Fuel cases is in the fact that the pipelines of Humble do not traverse any portion.

No part of the pipe — pipelines of Humble traverse any portion of the area that was subjected to the oil, gas and mineral leases that were sub — that were left to Natural Gas and Oil Company and Mississippi River Fuel Corporation.

There — there is no relationship between Humble Pipe Line and those persons who are producing oil, none whatever and the Humble Pipe Line Company has transported no oil from the base nor is it related in any manner with the production of oil from the base.

The — in this case, the State concedes that the United States has exclusive legislative authority within Barksdale Air Force Base.

And Mr. Justice Stewart inquired momentarily whether — whether or not the State had raised the question of whether or not this is a case of jurisdiction within the constitutional provision, Article 1, Section 8.

And that point has been raised, we have contended — Humble contends that the source of jurisdiction is two-fold.

First, that it arises under the article of the Constitution and second, that it rises under the cession law which was in effect at the time these lands were transferred to the United States.

We contend first that — that this — these properties were assembled by the City of Shreveport for the purpose as permitted by the Constitution of the State, for the purpose of conveying them to the United States for the erection of an airport or — for military purposes and that that was the — that the acceptance of that donation so-called was authorized by the United States by act of Congress before those transfers were made.

In other words, we submit that this was a negotiated acquisition that it was by contract, the consideration for of which was the erection of the military establishment and it was just as much a purchase as though it had been made — that the conveyance had been made for a monetary consideration.

Leon O’Quin:

That —

Potter Stewart:

Of course in — one meaning of the word purchase is any acquisition other than by inheritance, I suppose.

Leon O’Quin:

1Yes, Your Honor.

And we submit — actually, the — the — they had — there have been some cases which inferentially have attempted to say that that was the broad meaning of the term and that — under the Constitution that they met a purchase in its more limited sense.

But in this case, I submit, that the source of the jurisdiction is unimportant for the reason that particularly, in respect to Humble Pipe Line, because no part of our line traverses any portion of the area which has been leased for the production of oil and gas.

And the matter of the source of the jurisdiction could be relevant only in respect to the matter of abandonment of that area.

If — if jurisdiction is conceded in respect to the post area outside of the 2000 acres that were subject to the oil and gas lease, then Humble Pipe Line is entirely within that area and there is no question of any abandonment of any portion of that area or any discontinuance of any for — part of the use of that area.

The — as I — as I stated this — the — the respondent here has conceded that exclusive jurisdiction of the United States on page 10 of its brief.

It first referred to the fact that they do not agree that — that the exclusive jurisdiction arises under the article of the Constitution of the United States.

But it’s stated, “The conclusion therefore, is inescapable that the United States did not acquire by the weight of said constitutional provision alone, exclusive jurisdiction over the lands in question.”

However, the consent of the State of Louisiana to the donations as contained in Act 12 of 1892 and later amended by Act 31 of 1942, embodied in Louisiana Revised Statutes, ceded pursuant to its provisions exclusive legislative jurisdiction to the Federal Government over the land so required.

And further, the counsel has already pointed out that in the act of cession which was in effect in 1930, that there was no condition imposed upon that jurisdiction.

In other words, it — it is — it is conceded, I’m sure, that a State may consent to the purchase or condemnation of lands for public — for governmental uses and impose any condition upon that consent that it may see fit.

And further, in ceding jurisdiction, it may impose any conditions upon that cession that it sees fit.

But in this case, there has been no condition imposed upon the cession that would require the contingent use of the property as for a military base.

As I say, that is beyond Humble’s case, but I submit that regardless that there is nothing in that cession that requires a continued use as for example, in cases in the past, when there had been such uses, it have said that the — that the jurisdiction of the United States was suspended so long as the military use might be discontinued.

But here, we have a cession that says that its exclusive jurisdiction so long as the lands are owned by the United States.

In this instance, the — the respondent conceding that the United States has exclusive jurisdiction, attempts to avoid the effect of that exclusive jurisdiction by pointing out that for example, stated by counsel, children of the post attend schools of the county or parish, upon payment of a tuition fee.

And by that fact, we submit that the respondent concedes — the State concedes that the exclusive jurisdiction of the United States over the post area and because if the State had concurrent jurisdiction there, they would be obligated to accept those children in the schools of the parish and of the State without the payment of the tuition.

The only thing — the only thing that — that is pointed toward the case of Humble here is the statement by the courts below that the — that the United States either acquired these lands subject to an easement or servitude, a right of way in favor of Humble or it subsequently granted a right of way.

It — of course the contention is answered entirely by the case of United States versus Unzeuta cited by counsel because in that instance, they referred particularly to the fact that there was nothing incompatible, inconsistent with the servitude or easement over the property and the exclusive jurisdiction of the United States.

But actually in this instance, first there is nothing to show that there ever was an easement or servitude.

There’s nothing actually to show in — by what means this pipeline is — is traverse — is the property of the United States.

These things have crept in without their having been any affirmative pleading in the case, and we’ve made no objection because we don’t — we really have no objection in having them referred to them.

I would state simply that insofar as the case of Humble Pipeline Company is concern, there is nothing to differentiate that case from Surplus Trading Company versus Cook, in which this Court held that the — under similar circumstances that the State of Arkansas could not impose ad valorem taxes upon private property within ten pike.

I submit that it’s entirely the same.

The matter has been briefly stated in the memorandum by the United States here and I submit that the judgment of the court below should be reversed.

Earl Warren:

Mr. Cashio.

Ferdinand A. Cashio:

Mr. Chief Justice and may it please the Court.

At the outset, let me say that the Attorney General of Louisiana has asked that I convey to the Court his personal regards as regrets that he could not be here on this occasion.

Ferdinand A. Cashio:

If it please the Court, it suffices to say that we do not share Mr. Yancey’s claim that this is a simple case of whether or not the Federal Government has exclusive jurisdiction over Barksdale Air Force Base.

I’m sure the — the Court will recognize that this is — that these cases are only a few of many in the long struggle through the years of States to have recognized their rights to tax property of private persons located within a federal enclave.

We represent the respondent in this case, we state by way of explanation because he is a constitutional officer of the State of Louisiana, and it is in the performance of his constitutional duties that these cases arose.

The Constitution of Louisiana provides that the sheriff is tax collector.

He collects the taxes of the State, parish and all other taxes imposed in his parish, other than municipal taxes.

Now, if it please the Court, I want to emphasize this that the oil and gas lease involved in this case, insofar as the two petitioners represented by Mr. Yancey and the lands thereby affected are the same as those that were at issue in Murphy Corporation against Fontenot, which was a 1954 case decided by the Louisiana Supreme Court and in which this Court denied certiorari in October of 1954.

Now, in that case, there was imposed by the State of Louisiana a severance tax on the severer of oil and gas from the soil located within Barksdale Air Force Base.

Now, it is also the same oil and gas lease as — and the lands thereby affected were the same as were involved in the case of Mississippi River — River Fuel Corporation against Fontenot which was decided by the Fifth Circuit Court of Appeals and in which this same Court denied certiorari in November of 1956 and thereto was involved a severance tax imposed by the State of Louisiana.

(Inaudible)

Ferdinand A. Cashio:

On the — the severance from the soil of minerals if it —

Hugo L. Black:

In each — each of those two cases.

Ferdinand A. Cashio:

In each of those two cases.

They were like —

Hugo L. Black:

Particular — at this particular place?

Ferdinand A. Cashio:

At this particular place, the same lease, the same lands.

Arthur J. Goldberg:

(Inaudible)

Ferdinand A. Cashio:

The — I was going to get to that if it pleases.

Arthur J. Goldberg:

(Inaudible)

Ferdinand A. Cashio:

Yes, well, I’ll answer that now though.

It — the question of whether or not, the Federal Government had exclusive jurisdiction under Article I, Section 8, cl. 17 of the Federal Constitution was raised in the case of Mississippi River Fuel Corporation against Fontenot.

And the United States District Court Judge, Judge Christenberry, in New Orleans, held that the Federal Government did not have exclusive jurisdiction because these lands were not purchased.

The Fifth Circuit Court of Appeal did not mention that question in its decision.

It pinched its decision simply upon the point of the taxability power of the State.

It did not get into the question of territorial jurisdiction of the State, so it’s sequestered that — that issue.

Now, these lands, 22,000 acres of land required not by deeds but by acts of donation from the State of Louisiana, the City of Shreveport and the Bossier Parish Levee Board which is an agency of the State of Louisiana, a political corporation.

They were all recognized and authority given for them by resolutions adopted by the State Legislature insofar as the act of donation by the State, a resolution by the Bossier Levee Board and a resolution by the City of Shreveport City Council.

Now, in these resolutions which are made part of the record and which are — were taxed to and maybe part of the acts of donation, it is therein provided that these lands were to be used for military purposes, for the construction of an air base.

Now, we — as Mr. O’Quin said in our brief on page 10, “We do — we do concede that exclusive jurisdiction was granted to the Federal Government by the acts mentioned but only in accordance with these provisions.”

Now, he — he just — he slighted over those words.

Now, it’s our position that — that these acts of donation were made for a specific purpose, that these lands be used for military purposes.

Ferdinand A. Cashio:

And therefore, when the — when the acts of the Legislature granted the — the cession of exclusive jurisdiction, these — this purpose was incorporated in the act of cession.

Then, it — it forwards itself down to this that — that the Federal Government had — was given exclusive jurisdiction only so long as these lands were used for military purposes as provided in the resolutions which were attached to and made a part of the acts of donation in each case.

Hugo L. Black:

(Inaudible) in connection with your accession that this donated for military purposes only.

Ferdinand A. Cashio:

The — the resolutions which are attached to and made a part of each act of donation.

In — in one instance there — the resolution adopted by the Legislature of the State of Louisiana which — which authorized the donation to the Federal Government of the lands owned by the State, the resolution adopted by the City Council of the City of Shreveport insofar as the lands conveyed by the act donation to the Federal Government by the City and the resolution of the Bossier Parish Levee Board authorizing it to convey these lands to the Federal Government by act of donation.

Hugo L. Black:

Act — Act 12 which is quoted — cited in the brief, one of the brief, does not refer to military purposes.

Ferdinand A. Cashio:

I’m sorry —

Hugo L. Black:

Act 12 —

Ferdinand A. Cashio:

Act 12?

Hugo L. Black:

No question in this case instead of consent of the State Legislature in acquisition.Act 12 of 1892 of the Legislature provides as follows, that says nothing about military purposes as anyone particularly that it does say is they use for military purposes only.

Ferdinand A. Cashio:

Not the act of cessions.

No, Your Honor, but we say that they were incorporated into the acts of cession that — that these resolutions — these acts of donation or impliedly, at least, incorporated into these acts of cession.

Does that mean that Louisiana can repossess these lands?

Ferdinand A. Cashio:

No, Mr. Justice Harlan, we — we don’t take the position that the — that the State of Louisiana could repossess these lands.

These — these acts of donation were binding, enforceable, executed and — or we — we merely — we are merely concerned here with the question of the residual power of the State to tax private property located within this reservation.

That is the sole question involved.

I realize that but I thought your point was that the cession had been a conditional cession in effect.

And therefore, you could tax since the condition had been reached.

Ferdinand A. Cashio:

Well, that is our position insofar as power to tax is concerned but we do not take the position that — that the State of Louisiana could — could reclaim these lands.

The — there’s — there’s no clause in the — in the act of donation providing for retrocession to the — to the State of Louisiana.

Is there any clause saying that Louisiana can tax with those conditions that were not implied with it?

Ferdinand A. Cashio:

No, sir.

There is no provision for that.

Hugo L. Black:

(Inaudible) to transfer these lands to Humble.

How did it transfer, what it did to Humble?

Ferdinand A. Cashio:

Mr. Justice Black, we don’t know, there’s nothing in the record to indicate how the Humble Pipeline Company acquired this right of way.

Hugo L. Black:

Did it acquire a title to it?

Ferdinand A. Cashio:

I — I wouldn’t think so.

Unquestionably, in — in our State, the — the rights of — of a pipeline company to Lake Pipe under certain lands is acquired by right of way.

Hugo L. Black:

And of an easement?

Ferdinand A. Cashio:

An easement?

We call it a servitude, a right of servitude in — in our State.

And under Article 490 of our Civil Code, which I cite in — in our brief, it’s provided that where there is a servitude affecting lands, that the — the owner has only a naked title, a naked title.

So —

Hugo L. Black:

You mean the Government here (Voice Overlap) —

Ferdinand A. Cashio:

The Government here has — has only a naked title insofar as the lands under which these pipe lines are laid.

Hugo L. Black:

But it has not conveyed the land away?

Ferdinand A. Cashio:

No, sir.

The Federal Government has not conveyed the land away.

Hugo L. Black:

Who has the control of the surface of the land now?

Ferdinand A. Cashio:

The Federal Government.

Now, as — as referred to by Mr. Yancey, I’ll just bring this out by way of emphasis again.

The cantonment area of this base comprises a — 1000 to 1500 acres of land and there is a semi-improved part of the base which includes the air field proper, which comprises about 1500 acres and that leaves about 19,000 acres of land of this original acquisition which is a part of what’s known as the “East Reservation.”

Counsel referred to it as East Base, actually it’s — it’s called the — the East Reservation.

Now, this is an unimproved part of the Base.

It’s — it’s grown over with — with trees, brush, except for certain portions, I’m sure that — that have been cleared.

For instance, for the purposes of — of drilling on — on these lands.

But, this is a — a non-improved part of the base and the — the base itself occupies a very small part of this 22,000 acres, only about 3000 acres, leaving about 19,000 unimproved.

Now, it’s a part of these 19,000 acres that was leased for oil and gas purposes, 2060 acres were leased, 2060 acres of these 19,000 acres of the unimproved part of the base was leased.

I don’t know that — I don’t know that we have ever said that or that the Court has ever said that — that the Federal Government has abandoned this — this acreage that was — was leased for oil and gas purposes.

What the Court said was — what the Court said was that these — these lands that were leased were separated from the remainder of the base and so they were because the lease itself provides that they were to be enclosed within fence.

Now, the Court in the Murphy Corporation case, the Louisiana Supreme Court case in which certiorari was denied by this Court held that — that this — this acreage was actually separated for — from the from the remainder of the base, that it was under fence, that there was an autonomous operation of this — this oil and gas field by these private individuals.

That the — that the Government in the lease, recognized their right of ownership to that and — and meet and send use of their tanks, their — their wheel equipment, their pipes and other paraphernalia.

Now, if it please the Court.

Our argument in this case has pursued two approaches.

Counsel refers only to one approach and that is the territorial jurisdiction of the State.

But we — we have approached this problem two ways, both from the standpoint of territorial jurisdiction of a state and also from the standpoint of the taxability power of the State without regard to territorial jurisdiction in the State.

Now, our — our argument — our points of argument of these, first of all, we say that there is no exclusive jurisdiction acquired solely by virtue of Article I, Section 8, cl. 17 of the Federal Constitution because this was not a purchase or condemnation as the word “purchase” has been implemented by court decisions.

It — the — this — this Court in a — in a late case, Paul versus United States referred to a — referred to a purchase or condemnation.

Now, we say, this was not acquired in either of those two ways and when we say purchase, we — we do not mean the common law use of the word “purchase,” which means a — an acquisition in anyway, other than by descent or inheritance but we mean an — an acquisition by — by purchase, by transfer from one to another.

Ferdinand A. Cashio:

Then we — we — our further point is this, that the cession of exclusive jurisdiction by the State to the Federal Government was solely for military purposes and I’ve already — I’ve already covered that.

Would you state again, I don’t get what your position of purchase of the United States (Inaudible)

Ferdinand A. Cashio:

Yes sir, referring — referring to our — our brief —

(Inaudible)

Ferdinand A. Cashio:

In our — our point number one of our argument, the word “purchase,” as used in the clause of the Constitution, does not have the technical meaning of the term at common law of an acquisition of lands, other than by descent or inheritance but has the meaning on an acquisition thereof by an actual purchase.

And we cite —

You mean for a monetary consideration.

Ferdinand A. Cashio:

For a monetary consideration, yes sir.

We — we cite the case of State Ex Rel. Board of County Commissioners of Valley County against Bruce, County Assessor, which is a case of the Supreme Court of Montana in 1937 and it was — affirmed by — by this Court, but a divided court and cited in 305 U.S. 577, 83 Law Edition 363 of 1959 Supreme Court 465.

Arthur J. Goldberg:

(Inaudible)

Ferdinand A. Cashio:

Mr. Justice Goldberg, I would answer that by saying that I think there has to be a monetary consideration.

As a matter of fact, I do not have that available now but — but there was — there was a — an opinion by the United States Attorney General holding that — to that effect, that there has to be a monetary consideration.

They even held, I think, in one opinion that — that — the — the consideration recited of $1 was not sufficient to constitute that a — a purchase.

Arthur J. Goldberg:

(Inaudible)

Ferdinand A. Cashio:

Yes, sir.

Arthur J. Goldberg:

(Inaudible)

Ferdinand A. Cashio:

Yes, sir.

Arthur J. Goldberg:

(Inaudible)

Ferdinand A. Cashio:

Yes, sir.

Arthur J. Goldberg:

(Inaudible)

Ferdinand A. Cashio:

Yes, sir.

Arthur J. Goldberg:

(Inaudible)

Ferdinand A. Cashio:

Yes, sir.

Arthur J. Goldberg:

(Inaudible)

Ferdinand A. Cashio:

Yes, sir.

Arthur J. Goldberg:

(Inaudible)

Ferdinand A. Cashio:

Yes, sir.

Arthur J. Goldberg:

(Inaudible)

Ferdinand A. Cashio:

I — I —

Arthur J. Goldberg:

(Inaudible)

Ferdinand A. Cashio:

Yes — yes, sir.

I — I would think so that that would be our position, yes, sir.

Now, to proceed, our — our next point is this, our point of — of argument is this that the — if — if exclusive jurisdiction did this by virtue of Article I, Section 8, cl. 17 of the Federal Constitution and if the act of cession was sufficient to — to vest that exclusive jurisdiction in the Federal Government, then we say that the — that that is not the controlling factor, that the cession by the State is not the controlling factor.

That the Federal Government here has evidence to its intention not to — to accept the grant of exclusive jurisdiction and we say that by virtue of the holding in the IBM against (Inaudible) which was decided by our Louisiana Supreme Court in which the court held just that that the decision by the State was not in itself controlling.

That you had the look to the circumstances of — of each case to determine whether or not it was the intent of the Federal Government to accept exclusive jurisdiction.

And following the — the Dravo case, James versus Dravo case, decided by this — this Court and the Silas Mason Company case also decided by this Court, both at the same cession.

They — they held that by virtue of the fact in the IBM case that the Federal Government was receiving and accepting police protection, the — different utilities such as water, sewerage, gas, telephone services from — from the State and from the City of New Orleans in that case and also school — school facilities.

I believe school facilities were involved there.

That those factors evidenced and intent on the part of the Federal Government not to accept exclusive jurisdiction

Then our — our further point was —

Hugo L. Black:

If they — if they had obtained it by authority of law, could the agents operating in the land waive it?

Ferdinand A. Cashio:

I don’t believe I understand Mr. Justice Black.

Hugo L. Black:

Saying that — that the Government had accept — accepted exclusive jurisdiction as a matter of law, a reason of the contract, can — its — it’s — can it be a stop by the fact (Inaudible) and declined to exercise completely exclusive jurisdiction?

Ferdinand A. Cashio:

Mr. Justice Black, I would answer that by saying that — that obviously, the Federal Government must act through its agents and — and whether they accepted exclusive jurisdiction, assuming that it did, they necessarily acted through its — its agents, whoever they might have been in that — in that case.

Presumably, the Secretary of War.

Hugo L. Black:

Under authority of Congress.

Ferdinand A. Cashio:

Under authority of Congress, yes sir.

Hugo L. Black:

And how would you have to have authority of Congress to surrender?

Ferdinand A. Cashio:

We — we will bring that out later in our argument but we — we hold — we — we say not.

We — we say that the S.R.A. against State of Minnesota case decided by this Court has authority to the fact that that does not have to be in the act of retrocession by Congress.

Hugo L. Black:

Page 27.

Ferdinand A. Cashio:

Now, our further point is that — that the uses of the land leased and that traversed by the pipelines do not meet the prescribed purposes of Article I, Section 8, cl. 17, that they were not to be used for the erection of “Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings.”

This was also held in the Murphy Corporation case.

The — the Court held there, our Supreme Court — our Louisiana Supreme Court held that these leased lands were not to be used for those purposes as — as defined in the constitutional provision.

Arthur J. Goldberg:

(Inaudible)

Ferdinand A. Cashio:

Yes, sir.

Arthur J. Goldberg:

(Inaudible)

Ferdinand A. Cashio:

I’m sure it has not been, Mr. Justice Goldberg, because they — they would necessarily have to leave that land open for purposes of repair of these lines and for accessibility.

I — I don t — don’t believe that — that the Government is actually occupying any of the surface portion of this land traversed by the pipelines.

Arthur J. Goldberg:

(Inaudible)

Ferdinand A. Cashio:

Could — could I describe — well, I cannot describe.

There is a — a plaque which is in the — in the record which — which shows the — the location of those lines.

One is an eight-inch line, an eight-inch in diameter line and the other is a 10-inch diameter line.

But by reason of the fact that generally, in these cases where — where there is a servitude for — where there is a servitude for laying and running up pipelines, the — the owner who has only a naked title cannot or — or should not use the surface of that land because it would be — it — it would infringe upon the rights of — of the owner of the servitude.

It would interfere with the rights of the owner of the servitude.

Now, we further say in this case as did the Murphy Corporation case, that the lease between the Federal Government and the petitioners represented by Mr. Yancey in this case is the law of this case and the — in that — in that particular instance, the lease provides that the lessee must pay when due, all taxes lawfully assessed and levied on the laws of the State or the United States, upon improvements, oil and gas produced from the lands hereunder or other rights, property or assets of the lessee.

And the — the Louisiana Supreme Court interpreting that clause of the lease, held that that — that clause was the — was the law of the case insofar as these particular lessees were concerned.

As to — as to Humble Pipeline Company, it only owns a — a right of way which is a servitude under Louisiana and the Federal Government, never could have exercised exclusive jurisdiction over these lands traversed by these pipelines, because either the Government took those lands subject to those pipelines at the time of acquisition or else, the Government itself granted this — this right of way for these pipelines.

And in either instance, the Federal Government could not exercise exclusive jurisdiction over these lands.

We further say that these petitioners cannot cloth themselves with the medal of governmental immunity.

All these petitioners, represented by Mr. Yancey, come into this Court and say that they are not relying upon any relationship that they have with the — with the Federal Government as lessees under an oil and gas lease.

(Inaudible)

Ferdinand A. Cashio:

Well, if Your Honor please, we — we say that — that it’s — as I said before, we approach this in two ways.

First, we use the approach of territorial jurisdiction.

We say that the State has territorial jurisdiction to levy a tax against private individuals on property of those individuals situated within the reservation.

(Inaudible)

Ferdinand A. Cashio:

No sir, this is not an alternative argument.

We — this is — this is our argument throughout this case.

We have not spelled it out as such but — but the affect of it is — is that we have assumed this — this double-pronged approach that there was territorial jurisdiction or there was taxability power vested in the State without reference to territorial jurisdiction.

If I may, the — diverge from — from my argument just a moment, I — I would like to refer to the S.R.A. versus State of Minnesota case decided by this Court in 1946.

And Mr. Justice — former Justice — Mr. Justice Reed was the organ of the — of the Court and he’s — he said there — if I can find the — the proper — proper place here.

He said — he said there — he says, “The impact of state taxation on federal operations may be so closed and threatening as to compel judicial intervention to declare the state tax invalid as in McCulloch case,” or course, he was referring to McCulloch against Maryland, very old case, decided by this Court, “or so remote or incidental as to justify a federal court in refusing to relieve a taxpayer from a state tax.”

And it — as he — the Court cited Alabama against King & Boozer, also decided by this Court.

And then he said this, he says, “The line of taxability is somewhat irregular and has varied through the years.”

Now, in this particular case, what had happened was this, that the Federal Government made a transfer of property over which it had exclusive jurisdiction under Article I, Section 8, cl. 17 of the Federal Constitution.

It made a transfer of this property by an executory contract to a private individual.

Then the State sought to tax the interest of this individual and the individual then brought this suit, seeking to be relieved from state tax.

The title to the property remained in the Federal Government but the — the transferee had the right of possession and had made certain improvements upon the property.

The title which had remained in the Federal Government was for purposes of security until the — the final installment payment had been made on the contract.

It was having been made — the sale, having been made under a credit contract, a credit sale, an installment contract.

Ferdinand A. Cashio:

Now, Mr. Chief Justice Stone and Mr. Justice Frankfurter concurred in — in that decision but they thought that the decision should have limit — been limited to the question of taxability by the State and should have not been premised upon territorial jurisdiction of the State.

The majority opinion as I said rendered by Mr. Stone and Mr. Justice Reed, premised the decision upon the — the fact that the State had territorial jurisdiction over this property.

And as I said, the — the concurring opinion expressed itself that — that they thought that the decision should have been premised rather not upon territorial jurisdiction of the State but upon the taxability power of the State irregardless of territorial jurisdiction.

So, we think, —

Hugo L. Black:

(Inaudible) nothing more than — that when the Government at your land, sold it but retained title of security for his debt, the state could tax the purchasers right in that property, that’s all it held, wasn’t it?

That was the question of the state that was presented in the beginning.

Ferdinand A. Cashio:

Well, Mr. Justice Black, that — that was discussed in the case and —

Hugo L. Black:

That was the only question in the — according to the question presented.

Ferdinand A. Cashio:

That was — that was presented and that was discussed but — but the decision did not — was not premised simply upon that because as I said, the — the Court held that there was territorial jurisdiction.

Hugo L. Black:

But you said it was within the territory of the State.

It was then the boundaries.

Ferdinand A. Cashio:

Yes, they — they held it was within the territorial boundaries of the State.

It was within a territorial jurisdiction of the State irregardless of a fact that title was yet vested in the Federal Government.

Now, we make the still further point that — that state tax laws existing at the time of acquisition of this property yet remain enforceable as against private individuals owning properties situated within the confines of Barksdale Air Force Base.

In our brief, we — we show that the constitutional provision of our State which gives to the Legislature the power to tax, has been in our Constitution since its adoption in 1921.

Now, this argument is — is made by virtue of a recent case decided by this Court, Paul against United States, in which Mr. Justice Douglas rendered the — the opinion of the Court.

It’s a 1962 decision and is cited in our brief.

And quoting from this case, I would — I would like to — I would like to — to quote at length with the indulgence of the Court, “The main question in this case is whether California can enforce for a minimum wholesale, price regulations as respects milk sold to the United States at three military installations, Travis Air Force Base, Castle Air Force Base and Oakland Army Terminal, located within California and used for strictly, military consumption or resale at federal commissaries and for consumption or resale at various military clubs and post exchanges.

Milk used for the first two categories of use is paid full with appropriated funds while that used in the clubs and exchanges is purchased with non-appropriated funds.”

After holding that — that with reference to the — the milk used for the first two categories, came with — within the Supremacy Clause of the Federal Constitution and that therefore, the — the regulations of the State of California were not binding or effective as to the milk used in those two — first categories.

Then —

(Inaudible)

Ferdinand A. Cashio:

They will pay full with — with appropriated funds.

Yes, sir.

So then the Court said, “This brings us to the question whether Congress has power to exercise exclusive legislation over these enclaves within the meaning of Article I, Section 8, cl. 17 of the Constitution.

The power of Cong — Congress over federal enclaves that come within the scope of Article I, Section 8, cl. 17, is obviously the same as the power of Congress over the District of Columbia.

The cases made clear that the grant of exclusive legislative power to Congress over enclaves that meet the requirements of Article I, Section 8, cl. 17 by its own weight bars state regulation without specific congressional action.”

Thus, the first question here is whether the three enclaves in question, were purchased by the consent of the Legislature of California within the meaning of Article I, Section 8, cl. 17.

Thus, that the United States acquires with the consent of the Legislature, land within the borders of that State by purchase or condemnation for any of the purposes mentioned in Article I, Section 8, cl. 17 or if the land is acquired without such consent and later, the State gives its consent, the jurisdiction of the Federal Government becomes exclusive.

In either event, whether the lands acquired by purchase or condemnation, on the one hand or by cession on the other, a State may condition its consent upon the intention — upon the — the retention of jurisdiction over the lands consistent with the federal use, citing James against Dravo Contracting Company, supra, 302 U.S. 146-149.

Ferdinand A. Cashio:

Moreover, as stated in James Stewart & Company against Sadrakula, 309 U.S. 94, 99, 100, 84, Law Edition 596, 600, 60 Supreme Court 431, 127 UALRE 21.

The Constitution does not commend, and this is the important part.

The Constitution does not commend that every vestige of the laws of the power — of the former sovereignty must vanish.

On the contrary, its language has long been interpreted so as to permit the continued — the continuance until abrogated by — of those rules existing at the time of the surrender of sovereignty which govern the rights of the occupants of the territory transferred.

This assumes that no area, however, small will be left without a developed legal system for private rights.

The conditions expressed in the California acts by which California considered to the purchase or condemnation of land by the United States for the prescribed purposes, do not undertake to make applicable to the federal enclaves or future laws of California.

Now, I — I’d like to stop at that moment.

The case indicates that the California statutes in this case which ceded exclusive jurisdiction to the Federal Government only retained, reserved to the State civil and criminal process and the power to — of taxation.

Now, here we’re not dealing with the power of taxation, we’re dealing with the power of a State to regulate the wholesale price of milk within these three military bases owned by the Federal Government.

Since a — now, to go on, since a State may not legislate with respect to a federal enclave unless — unless it reserved the right to do so when it gave its consent to the purchase by the United States, only state law existing at the time of the acquisition remains enforceable, not subsequent laws.

See, James Stewart & Company against Sadrakula and the citation is there, and also Arlington Hotel versus Fant.

Now, my opponents have taken some comfort in the — in — in the case of Arlington Hotel versus Fant, they say that it means something entirely different from what this Court has interpreted, that case has meaning.

Arlington Hotel versus Fant has merely held as — as said in Sadrakula says, conversely in Arlington Hotel Company versus Fant with the citation and Arkansas statute for leaving innkeepers, passed after the cession of Hot Springs Reservation was held unavailing as a defense to a reservation innkeepers common law liability in accordance with Arkansas law before the cession.

In other words, Arkansas had passed this law after the cession and this Court said that what was meant in Arlington Hotel Company against Fant was merely that if the laws were in effect at the time of the acquisition of this property, then they yet continue to remain in effect but that if the law was passed after the cession by the State of exclusive jurisdiction to the Federal Government, then they do not apply.

Now, we say there’s no difference between the regulation of — of the wholesale price of milk on military reservations or a taxation of private property of private individuals located on a base.

We have shown in this case more than abundantly that this taxation of private property is entirely consonant and compatible with the primary purpose of the operation of this air base.

There has never been any interference with the — with the rights or the intent of the Federal Government.

The Federal Government has never complained about this taxation of private property.

Now, the Federal Government has, through the justice department, filed an amicus — amicus curiae brief in this case but simply upon the question of territorial jurisdiction, not upon the right, the taxability power of a State to levy a tax in a case of this kind, but simply they raise the question — they say that is important because they have got hundreds of bases throughout the country and it’s important to know the demarcation of the jurisdiction of the Federal Government and the State Government.

Hugo L. Black:

You just say that has been — am — am I correct in say — pointing that you said that unless the State reserves a right to tax and a lead to the Government of — by a Government acquired property for the exclusive right — exclusive rights unless the State reserves that it has not.

Ferdinand A. Cashio:

It has them —

Hugo L. Black:

Has not.

Ferdinand A. Cashio:

It has not?

Hugo L. Black:

I understood you to say that, unless the State has reserved the right to tax of the condition, as I understood you are reading from Mr. Justice Douglas’ opinion in the original case.

Ferdinand A. Cashio:

I don’t understand that from the opinion, Mr. Justice Black.

If I may go back —

Hugo L. Black:

Would you think if the State has a right to tax even though the Government has exclusive jurisdiction in the absence of some showing if the State re — reserved it with a knowledge of the Government?

Ferdinand A. Cashio:

We think so in this case.

Of course we go back, I’m not going to burden the Court with further argument on these points but we go back to the original argument that this was not a purchase under Article 1 —

Hugo L. Black:

Well, I understand that you —

Ferdinand A. Cashio:

Section 8, cl. 17 — yes, sir.

Hugo L. Black:

And you — you said it wasn’t a purchase cost of donations.

Ferdinand A. Cashio:

Yes, sir.

Hugo L. Black:

That’s that argument.

Ferdinand A. Cashio:

Right, sir.

Hugo L. Black:

But assuming that it was a purchase, do you claim that the State can tax if it didn’t reserve that right either expressly or impliedly?

Ferdinand A. Cashio:

Yes, sir, we think so in this case.

Because as I have heretofore pointed out and as stated in our brief, the Federal Government in — in leasing this land, has expressed an intent.

I —

Hugo L. Black:

You’re putting it — you’re putting it then on something that happened afterwards.

You’re putting after — you — you take the position that the lease is likely a conditional sale and that — and the case to which Justice — Mr. Justice Reed wrote?

Ferdinand A. Cashio:

Right, sir.

Hugo L. Black:

That’s your argument there but —

Ferdinand A. Cashio:

Now, getting back to the other argument, I’d like to refer back to the language of Mr. Justice Douglas because I don’t understand that that is what he said.

As I said heretofore, the — the acts of cession involving California in — in that case only reserved unto the State civil and criminal process and the power to tax.

But here, the — in that case, there was no power — there was no tax problem involved.

There was no tax problem involved.

There was the regulation of milk prices, regulation of milk prices.

Now, that is not a tax.

Hugo L. Black:

In that case, am I right in thinking that the Government took exclusive right to control except for those two reservations that you mentioned?

Ferdinand A. Cashio:

That’s right, sir.

That’s exactly right.

Going back to the language of Mr. Justice Douglas, he says, “The conditions expressed in the California Acts by which California consider into the purchase or condemnation of land by the United States for the prescribed purposes, do not undertake to make applicable to the federal enclaves all future laws of California” or (Voice Overlap)

William O. Douglas:

Which delivers concerned with there, it was a series of state laws because they hadn’t then argued at the brief here, they were various types.

And whether the State had reserved in the — in the cession any power to regulate, there’s a question that we didn’t know.

Ferdinand A. Cashio:

Well —

William O. Douglas:

That we weren’t aware of, how that should be answered.

So we sent it back for trial, didn’t we?

Ferdinand A. Cashio:

Well, if — if I may say this, I — I don’t want — don’t want to dispute the — Your Honor.

William O. Douglas:

We sent — we — and we didn’t resolve any issues, we just sent that issue back to trial, didn’t we?

Ferdinand A. Cashio:

You sent the case back to the trial — I’m just —

William O. Douglas:

But I wasn’t aware of here that Louisiana had made any reservation of their power?

Ferdinand A. Cashio:

Louisiana did not make any reservation of their power in this case but neither did California in that case.

William O. Douglas:

Well, that is something in which we weren’t sure, is that right?

Because of the various acts, there were various types of acts.

Ferdinand A. Cashio:

Well Mr. —

William O. Douglas:

One —

Ferdinand A. Cashio:

— Justice Douglas, I didn’t understand that from the opinion.

But here’s what — here’s what was said.

What — what this Court did was to remand the case to —

William O. Douglas:

Right.

Ferdinand A. Cashio:

— to determine if these milk regulations were in existence at the time that the acquisition was made because there was nothing in the record to indicate whether or not these regulations, that is whether or not these particular regulations or some regulations of that particular pattern, were in existence at the time of the acquisition of the property.

Now, we have the same — same situation here, we say.

There’s no reservation here, nor was there any reservation in the Calif — California case.

Your Honor said this, “Since a State may not legislate with respect to a federal enclave unless it reserved the right to do so when it gave its consent to the purchase by the United States, only state law existing at the time of the acquisition remains enforceable, not subsequent laws.”

So that excluded any reservation.

William O. Douglas:

Am I right of — I’d have to refresh my recollection.

Ferdinand A. Cashio:

Yes, sir.

William O. Douglas:

But my memory was that we were talking there on the assumption that — at that point.

Ferdinand A. Cashio:

Yes, sir.

William O. Douglas:

But there has been reserved a right to regulate and then we come down to what kind of regulation and therefore, the —

Ferdinand A. Cashio:

Yes, sir.

William O. Douglas:

— if the — that kind of regulation in question was in existence at the time of the cession —

Ferdinand A. Cashio:

Yes, sir.

William O. Douglas:

— and they preserved regulation that would be — a continuation of that kind of regulation would be presumed — I as I remember it.

Ferdinand A. Cashio:

Well —

William O. Douglas:

And if you’re right, I don’t — suppose you —

Ferdinand A. Cashio:

As I — as I say, my recollection of the case and my impression of it was merely that this Court remanded the case to determine if there were regulations in existence at the time when the acquisition was made.

William O. Douglas:

Maybe you’re right, I —

Ferdinand A. Cashio:

Yes, sir.

Ferdinand A. Cashio:

I’d like to point this, if it please the Court.

There is another case which gives us comfort, which we did not cite in our brief inadvertently, but it is cited in the Government’s amicus curiae brief.

And if I — if I may, the — the case is Offutt Housing Company against Sarpy County, a 1956 decision, and the citation is 351 U.S. 253.

Now, involved in that case, was an interpretation of Section 6 of the Military Leasing Act.

And that Section provided, “The lessee’s interest made or created, pursuant to the provisions of this Act shall be made subject to state or local taxation.”

Former — Mr. Justice Frankfurter said this.

He said, “We could regard Article 1, Section 8, cl. 17 as of such overwriting and comprehensive school that consent by Congress to state taxation of obviously valuable private interest located in an area, subject to the power exclusive legislation, is to be found only inexplicit and unambiguous legislative enactment.”

We have not heretofore so regarded it because — now, this answers — this answers our opponents’ claim that there has to be an act of Congress retroceding jurisdiction to the State.

He said, “We have not heretofore so regarded it.”

CSRA Incorporated against State of Minnesota, 327 U.S. 558, 66 Supreme Court 749, 98 Law Edition 851, Baltimore Shipbuilding & Dry Dock Company versus City of Baltimore, 195 U.S. 375, 255 Supreme Court 50, 49 Law Edition 242.

Nor all we constrain by reason to treat this exercise by Congress of the exclusive legislation power and the manner of construing it any differently from any other exercise by Congress of that power.

This is one of those cases in which Congress has seen fit not to express itself unequivocally.

We do not hold that Congress has relinquished this power over these areas.

We hold only that Congress, in the exercise of this power, has permitted such state taxation as is involved in the present case.

And we say the same thing here.

We had — we had the — the Murphy Corporation case against Fontenot.

We have the Mississippi River Fuel Corporation against Fontenot.

Certiorari was denied in both of those cases by this Court once in 1954, the other time in 1956.

There has been 10 years expired since the Murphy Corporation case, there has been eight years expired since the Mississippi River Fuel Corporation case, and Congress has not taken any steps whatsoever to act to immunize these private corporations or to — to say that the States should not tax them.

We say that — that Congress has assented to the taxation of these private individuals in — in these cases.

Sir?

Hugo L. Black:

(Inaudible)

Ferdinand A. Cashio:

Makes no difference.

Hugo L. Black:

What is this tax?

Ferdinand A. Cashio:

These taxes in — in the instances of the —

Hugo L. Black:

What — what is assent?

Ferdinand A. Cashio:

In the instances of the petitioners represented by Mr. Yancey, they are the oil wells and the oil well equipment owned by these private individuals, maintained and used by them in their private commercial pursuits and located on this base.

Hugo L. Black:

That’s one.

What’s the other?

Ferdinand A. Cashio:

The other is an 8-inch pipeline and a — a 10-inch pipeline owned by the Humble Pipe Line Company.

Hugo L. Black:

That’s the pipeline itself?

Ferdinand A. Cashio:

The pipeline themselves.

Yes, sir.

Hugo L. Black:

Ad valorem.

Ferdinand A. Cashio:

These are ad valorem taxes, taxed on value.

Yes, sir.

Thank you very much, sir.

Clarence L. Yancey:

I should like to use the —

Earl Warren:

Mr. Yancey, you may proceed.

Clarence L. Yancey:

Thank you, Your Honor.

I should like to use the time remaining between now and recess time to discuss a — few of the points counsel has made.

Earl Warren:

Very well.

Clarence L. Yancey:

Beginning with the — the idea that the argument, that there must be a purchase — of course we realize that time is used in the — in Clause 17 of the Constitution we’ve been talking about.

And the counsel has said that because these transfers were donations, the constitutional provision does not apply.

At the outset, I would remind the Court that we have said that there are two avenues to exclusive jurisdiction.

One is this way and the other is by this voluntary cession by the State to the Federal Government which took place here also.

So that even if the Court agrees with counsel that there was no purchase here, and therefore that the congressional — that the constitutional provision is not operative here, he still is not attacked by this argument the other avenue to exclusive jurisdiction.

But we think that this is a purchase as contemplated by the constitutional provision.

I should like to, at this time, refer to the stipulation, counsel in this case, which of course is overwriting and governing here.

Now, on page 17 of the record, it says, “The conveyances evidenced by the instruments referred to were donations of the properties described therein, made pursuant to the provisions of the Constitution of the State of Louisiana upon the condition and with the understanding that the United States would establish, operate and maintain a military air force base upon the lands conveyed.”

Now, under the law of Louisiana, we have what’s known as “commutative contracts” and Article 1768 of the revised Civil Code says this.”

Commutative contracts are those in which what is done, given or premised by one party is considered as equivalent to or a consideration for what is done, given or premised by the other.”

Article 1770 says, “A contract containing mutual covenants shall be presumed to be commutative unless the contrary be expressed.”

We say this is no more than a commutative contract under the law of Louisiana.

Further, we think that the — the general definition in the legal dictionaries and in many cases is that the term “purchase” in law covers all contractual conveyances.

It — the time would exclude only title acquired by descent and inheritance.

In the case of Kohl, K-O-H-L, against the United States, 91 U.S. 367 cited by Mr. O’Quin in his brief, the word “purchase” there, he said to mean acquisition by contract between the parties, any acquisition by contract, so that — we think the position that there was a purchase in this case as contemplated by the Constitution.

I was somewhat shocked when counsel said that in the conveyances of the land to the Government in this case, there was a restriction to military use.

I was shocked because that’s been brought up for the very first time in this case today.

But if Your Honors will look at the record beginning at page 59 and going onto page 70, therein are the conveyances themselves.

Clarence L. Yancey:

And it’s true that there is some language in some of the resolutions saying that whereas the Government wishes to acquire these lands was military purposes of its own.

Your Honors know I am sure that the Attorney General of the United States will not accept title to land by the Government of the United States unless it is in fee simple.

And in all three of the deeds, the title is very clearly conveyed in fee simple.

There is only one minor exception in the case of the deed by the City of Shreveport.

There is a reservation of — for two years until 1932 of the right to produce some gas wells which were producing at the time of the conveyance in 1930.

That’s the only reservation in those deeds, if the Court please.

Earl Warren:

The section of Appropriation Act that is quoted in — on page 3 of the Government’s brief, lend any force to that.

I noticed that it — it says here that “Secretary of War is hereby authorized when directed by the president to accept in behalf of United States free from encumbrances and without cost to the United States, the title in fee simple to such land is he maybe necessary or desirable of the City of Shreveport approximately 25,000 acres, more or less as a site for an aviation fee.”

Clarence L. Yancey:

Yes, Your Honor that was — he was the officer of the Government designated to accept title in fee simple on behalf of the Government.

Earl Warren:

So with that, I suppose that would limit the Government to accepting title in fee simple.

Clarence L. Yancey:

I — I would think so.

He was instructed to — to do that thing which was in fact done and the title is in fee simple.

Earl Warren:

Yes.

Clarence L. Yancey:

Meaning that requirement of the Government.

Hugo L. Black:

Suppose — suppose instead of taking the lease, the convener had bought this unconditional sale be paid yearly over a certain number of years.

What would you say about that?

Clarence L. Yancey:

I think Your — I think Your Honor perhaps has in mind S.R.A. versus Minnesota —

Hugo L. Black:

(Voice Overlap)

Clarence L. Yancey:

— which has been discussed here.

Hugo L. Black:

As we have —

Clarence L. Yancey:

But we have — we have no quarrel with that case whatever.

In that case, there was a — a transfer of the possession of that property.

It was a — in effect, the transfer of title and all the Government was doing there was to reserve a security device so that the deferred part of the consideration might be secured.

Actually for all intents and purposes, that was a conveyance because the Government had seized the use the property for any governmental purposes whatever.

It had been turned over to the private owners and they were using it for private purposes, and it was merely a reservation of a security device (Voice Overlap) —

Hugo L. Black:

You wouldn’t think the Government had given a lease that Louisiana could tax?

Our Government given a title, conditional title (Voice Overlap) —

Clarence L. Yancey:

Had — had the Government — had the Government departed with title, yes Your Honor, I would say that.

Hugo L. Black:

Suppose that it had departed with title said that in the period — after it spent 50 years, the title shall revert to the Government.

Clarence L. Yancey:

I — I don’t’ quite understand.

Hugo L. Black:

Suppose it had conveyed the land —

Clarence L. Yancey:

The — the — is the Government conveying?

Hugo L. Black:

The Government conveys the land to the company saying that conveying, with all the rights of pertinency thereto and so forth, but said that it’s conveyed for the understanding that within 50 years, title will revert to the Government.

Clarence L. Yancey:

I would think that when the title does revert, then the situation would be governed by the statutes of Louisiana which says that the Government is granted exclusive jurisdiction if it acquires land in the State for — for any purpose whatever.

Hugo L. Black:

Would it not the Government giving a deed?

Clarence L. Yancey:

The — you — you said the Government —

Hugo L. Black:

They have leased to (Voice Overlap) —

Clarence L. Yancey:

You said the Government —

Hugo L. Black:

— deed, in all respect, is like a deed except that the deed provided at the end of 50 years, the title should revert to the Government.

Would — could Louisiana then have taxed it?

Clarence L. Yancey:

You mean until — until the Government gets title back.

Hugo L. Black:

That’s’ right.

Clarence L. Yancey:

I — I’m not — yes, we believe that — that it could tax because the State has departed absolutely within it vested your title, it seem to me during that time.

Hugo L. Black:

It points to some of the difficulties of the numerous cases we’ve had.

Do you pay a similar tax to Louisiana on your wells?

Clarence L. Yancey:

That was contested in the — in the cases that the counsel has referred to and those — the State of Louisiana held in that case that we had to pay those taxes because there’s the — the Federal Government has given up exclusive jurisdiction and we think it’s an erroneous holding, if Your Honor please.

I’d like to comment just a minute about the case of Paul versus United States and the other cases in line with that decision.

We have — we have no complaint whatever about the holding in the James Stewart & Company versus Sadrakula or the old Chicago Rock Island and Pacific Railway Company against McGlynn.

In that line of cases, what the Court was saying as I appreciate it is this.

That when sovereignty is transferred by one sovereignty to another, the law abhors a void so that as to the laws regulating matters as between individuals in that enclave, the law of the whole sovereign will remain.

That is municipal law.

It will remain but it will be adopted as the law of the new sovereign unless and until there are legislative acts by the new sovereign to regulate those matters as between private individuals on the domain.

That’s what I appreciate that those holdings to be and we have no complaint about them.

We just simply don’t think they have any application whatever in — in a situation like this.

We conclude as the Solicitor General concluded in his brief that like the authority to sell or transfer Government lands, citing Alabama versus Texas, the authority to retrocede jurisdiction must be bound in some act of Congress and citing Offutt Housing Company versus Sappy County.

So we conclude that in the absence of a congressional act retroceding to the State of Louisiana the right to tax, it does not and cannot have such right in this case.

Thank you.

Hugo L. Black:

Your argument (Inaudible) the invalidation of Louisiana’s rights to severance tax?

Clarence L. Yancey:

Would you repeat your question, Your Honor?

Hugo L. Black:

Would it — your — if your argument were accepted on this tax — ad valorem tax, would it require an acceptance going further and saying that Louisiana could not tax — (Voice Overlap) —

Clarence L. Yancey:

We — we say Louisiana have — does not have the right to levy any tax on this enclave.

It does not have the right to regulate or tax.

It abandoned that when it ceded to the Government exclusive jurisdiction.

Hugo L. Black:

I’m talking about severance tax and —

Clarence L. Yancey:

And that — that would —

Hugo L. Black:

(Voice Overlap) on fugitive oil.

Clarence L. Yancey:

That — that would apply if the fugitive oil is captured on the air base.

Potter Stewart:

As I understood Judge Hutcheson in that Fifth Circuit case, distinguishes severance tax and he said it would — that tax as a matter of state law or as a matter of fact was not — was not imposed on the property within the enclave but in any event we don’t have that —

Clarence L. Yancey:

We don’t have it before us today and —

Potter Stewart:

— severance tax here that may or may not be distinguishable.

Clarence L. Yancey:

It is —

Potter Stewart:

This is — this is clearly a tax on personal property.

Clarence L. Yancey:

That’s correct.

Potter Stewart:

Ad valorem tax on personal property —

Clarence L. Yancey:

That’s correct, Your Honor.

Potter Stewart:

— within the enclave, is it not?

Clarence L. Yancey:

That is correct.

Potter Stewart:

So, whether or not the Fifth Circuit was right in this in describing that other kind of a tax, that question is not before us now.

Clarence L. Yancey:

That is correct.

Potter Stewart:

Isn’t that right?

Clarence L. Yancey:

Because this — the property talked about here is definitely located within the confines of the enclave.

Potter Stewart:

But the tax is directly on that personal property.

Clarence L. Yancey:

That is correct, Your Honor.

Thank you very much.