DISTRICT OF COLUMBIA HOME RULE BILLS

FRIDAY, AUGUST 7, 1959

HOUSE OF REPRESENTATIVES,
SUBCOMMITTEE No. 3 OF THE

COMMITTEE ON THE DISTRICT OF COLUMBIA,

Washington, D.C.

The committee met at 10 a.m., pursuant to notice, in room 445, House Office Building, Hon. James C. Davis (subcommittee chairman) presiding.

Also present: William N. McLeod, Jr., clerk of the Committee on the District of Columbia, Hayden S. Garber, counsel, Ann L. Puryear, assistant clerk, Leonard O. Hilder, investigator, and Donald Tubridy, minority clerk.

Mr. DAVIS. The committee will come to order, please.

This is a continuation of the hearings on the legislation involving home rule for the District of Columbia. All the bills on this subject are before this subcommittee.

At the conclusion of the last hearing Congressman Byron Johnson was on the witness stand, and I notice Congressman Johnson is with us again this morning.

I believe you had finished your formal statement?

STATEMENT OF HON. BYRON L. JOHNSON, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF COLORADO

Mr. JOHNSON. At the time we finished the hearing the other day time had run out and the committee had asked that I be more specific with respect to the law on the question of constitutionality which was raised in the letter Chairman McMillan wrote to me. In that letter, of July 27, 1959, he said:

I hope that you will make arrangements to appear in person before the House District Committee and give us your opinion and suggestions as to how the Congress can bypass article I, section 8 of the U.S. Constitution by delegating our legislative powers to a local government.

And I said I would complete the research on which I was engaged and bring back in more detail the supporting documentation for the principles I had set forth in my testimony the other day. I am prepared to do so now.

Mr. DAVIS. You may proceed.

Mr. JOHNSON. Before I do so, I would like to add one footnote to my testimony the other day which I found in my notes, but which I had not covered.

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In 1946, when I was employed by the U.S. Government, I was a voluntary ballot clerk in the one election held in the District of Columbia by the Board of Trade.

Mr. DAVIS. What year was that?

Mr. JOHNSON. 1946.

There were 116,559 votes cast for home rule and 49,669 against home rule in that election. Members of the executive agencies were asked if they would care to serve as ballot clerks, and I was myself a ballot clerk in that election and am reasonably familiar with it, and I think that was a fair indication of the opinion of the residents of the District as of that time. I left the city the next year and have not been here until this year to stay, therefore I offer no further comment. However, if the committee is interested in the detail of that election, I have the returns for each voting place in the District as they appear in the Evening Star of Wednesday, November 6, 1946, and you can see by each area of the city how the election went at that time.

I do not know that we should clutter the record with this, but if the chairman so desires I will be glad to have that inserted in the record.

Mr. DAVIS. I do not think it would be worthwhile to put the details in.

Mr. JOHNSON. The facts are as stated, and those interested in the detail can find it in the press report at that time.

That was one footnote I did want to add to my testimony before turning to the purely legal questions.

If I understand the letter which the chairman has sent me, one of the primary concerns of this committee relates to the question as to the interpretation which we should give to clause 17 of section 8 of article I of the Constitution, which provides that Congress shall have power to exercise exclusive legislation in all cases whatsoever over the District, 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, docks, yards, and other needful buildings.

I think the two parts of the clause could be taken together because of the "like authority." A very similar problem arises in respect to forts, magazines, arsenals, docks, yards, and other needful buildings in each of the 50 States.

I would call to the attention of the chairman and members of the committee that the United States Code Annotated contains almost 40 pages of citations of cases detailing-it is surprising the complete detail the cases which have arisen under this clause of the Constitution. They will be found at pages 696 to 730 of volume I, United States Code Annotated.

Obviously we need not take the time today to review those, but any person interested in the law under clause 17 can find a recap of the law at that point.

An even more interesting source for any person interested in examining the law with respect to Federal areas within the States and congressional control generally is to be found in a two-part report of the Interdepartmental Committee for the Study of Jurisdiction Over Federal Areas Within the States. Part I sets forth the facts

and Committee recommendations and part II a text of the law of legislative jurisdiction.

These are very competent works. Counsel of sundry executive departments of the Federal Government constituted this Committee, under the chairmanship of Perry W. Morton, an Assistant Attorney General, with a large staff drawn from the Department of Justice and other departments and agencies. This report was submitted by the Attorney General to the President under date of April 27, 1956. It is a remarkably scholarly document and restates the law, cites the cases, and cites the statutes.

Mr. DAVIS. What light does the report throw on the question before this committee?

Mr. JOHNSON. I cite the source and I will set out what I consider the key points of law, but I call to the attention of the committee and those who may wish to review the law these sources. Further, I find there are many significant observations with respect to Federal property in my own State that this report sheds great light on, and I trust some day another committee of this Congress will undertake to implement the very fine recommendations contained in this report. That is a footnote, Mr. Chairman, to the main theme.

Mr. DAVIS. There has been no controversy about the fact that the Federal Government has complete jurisdiction over yards and docks and Federal installations. I would not think a treatise dealing with that would shed much light on the issue here.

Mr. JOHNSON. The same clause of the Constitution is involved and the words "exclusive legislation" are interpreted under both parts of that clause. I think cases arising under either part of the clause would throw light on the other.

Mr. DAVIS. You do not have any cases that hold that any other Government or any other municipality has jurisdiction over Federal installations?

Mr. JOHNSON. Yes, Mr. Chairman; there is a great deal of law on that point.

Mr. DAVIS. We would be interested to know about that.

Mr. LOSER. Mr. Chairman, I would like to ask Mr. Johnson, with reference to the cases that hold that States have jurisdiction over Federal installations, if in those cases there appeared a provision in the grant by the State that the State would exercise its police power in that area?

Mr. JOHNSON. There are a series of ways by which this jurisdiction is derived, but some, including that mentioned by the gentleman, have been upheld by the Court.

Mr. LOSER. Is it not true wherever a State has jurisdiction over a Federal installation it is by reason of the grant by the State and the acceptance of the Congress that the State would exercise its police power in that area?

Mr. JOHNSON. That is one of perhaps four ways that I will identify in a moment.

The power of exclusive legislation has been interpreted, I think from the beginning, to mean exclusive jurisdiction, and the Chair, I think, has stated that correctly.

In the Federalist, No. XXXII, Alexander Hamilton noted:

But as the plan of the Convention aims only at a partial union or consolidation, the State governments would clearly retain all the rights of sovereignty which they before had, and which were not, by that act, exclusively delegated to the United States. This exclusive delegation, or rather this alienation of State sovereignty, would only exist in three cases: where the Constitution in express terms granted an exclusive authority to the Union; where it granted, in one instance, an authority to the Union, and in another, prohibited the States from exercising the like authority; and where it granted an authority to the Union to which a similar authority in the States would be absolutely and totally contradictory and repugnant. * * * These three cases of exclusive jurisdiction of the Federal Government may be exemplified by the following instances: and he then refers to the clause we are here discussing, clause 17, section 8, in the first article of the Constitution, which provides expressly that Congress shall exercise "exclusive legislation" over the district to be appropriated as the seat of Government.

The position taken by Hamilton is, of course, supported also by the cases which have arisen under this.

In Arledge v. Mabry (52 N. Mex. 303) decided in 1948, the court held that the term "exclusive legislation," used in this clause, is synonymous with "exclusive jurisdiction," and that ordinarily exclusive jurisdiction for all purposes over the acquired lands attaches in favor of the Federal Government with the single exception of the right in the State to serve criminal process through its officers on such lands relating to acts and offenses outside such lands.

I am digressing for the moment.

How does the Federal Government obtain this power?

One way is by the enactment of State statutes, general or specific, under clause 17, consenting to the acquisition by the Federal Government of land within the State, or the District of Columbia in the case of Maryland or Virginia.

Or, in the case of the admission of certain States into the Union, the Federal Government has on occasions made reservations of jurisdiction over lands which it owns, retaining jurisdiction over those lands in the act of admission of the State into the Union; so the Federal Government, at the time of admission of the States other than the first 13, acquired jurisdiction.

Or the State, through general or special statutes, may have ceded authority for more purposes than are spelled out in clause 17.

Mr. DAVIS. The two instances you have just mentioned do not concern us here.

Mr. JOHNSON. Except as cases under them may define the language relating to the District of Columbia.

Mr. DAVIS. When you have definite language relating to a subject matter you do not have to go around and hunt up indefinite language that refers to other matters.

Mr. JOHNSON. The point is that the Federal Government's exclusive jurisdiction clearly relates to the District of Columbia, to other properties it has by its own reservations, or in respect to Territories under article IV.

Congress has the same legislative authority under all three cases, and therefore its right to delegate to any of the three should be of the same significance to the other two. The power to delegate or to make other arrangements and there are many other arrangements— it seems to me does shed light.

Let us turn first of all to the District of Columbia.

An early case, Washington v. Eaton (4 Cranch 352, 29 Fed. Cas. No. 17,228), decided in 1833, held that

An act of Congress granting legislative power to the corporation of Washington is not unconstitutional as a delegation of that power of exclusive legislation over the District of Columbia which, by the Constitution, is vested in Congress. This case is cited at 1 U.S.C.A. 697.

The power of Congress to create the District of Columbia, a body corporate for municipal purposes, to exercise municipal powers, was approved in Stoutenburgh v. Hennick (9 Sup. Ct. 256, 129 U.S. 147, 32 L. Ed. 637).

Congress has the power to invest the District government with legislative authority, and the act of legislative assembly providing that all property, real and personal, employed for manufacturing purposes shall be exempt from any taxes for 10 years was held to be in that authority (Welch v. Cook, D.C. 1879, 97 U.S. 542; cited at 1 U.S.C.A. 703).

Mr. LOSER. If the gentleman will yield, I am very much interested in this question. I am wondering if you distinguish between municipal powers and regulations, bylaws and health regulations, on the one side, as against substantive law on the other? Are you insisting that the Congress can delegate its power to a local government to pass substantive laws?

Mr. JOHNSON. My next paragraph says:

Clearly, if Congress could delegate taxing powers to the corporate body, it could delegate other legislative functions, for the taxing function is the primary legislative function, not only in the Constitution but in any other analysis of governmental power. It is the essential test of an independent government.

Since the case just cited was a tax case (Welch v. Cook), clearly the power, it seems to me, is substantive, and other cases I will cite show that Congress in fact has delegated very broad authority, not only to the District of Columbia in times past but to the States.

A more recent case testing the powers of the Congress over the Territories and the District arose in District of Columbia v. John R. Thompson Company (346 U.S. 100). The court was required, in order to come to its conclusion, to determine that the Congress had the authority to establish the District of Columbia Territorial government of 1871 and that the legislature created by that government had the power to pass the law under attack, that the Congress itself could have passed the law, and that the delegation to the local legislature was sufficiently broad to pass that law.

That law related to this very troublesome problem of racial discrimination, clearly a substantive law.

Mr. LOSER. Was that not a police power?

Mr. JOHNSON. It did reaffirm that this power was properly exercised by the old District of Columbia government.

In my own view, I view the taxing problem as the acid test of strength of the local government. We create local governments, but give them no monetary powers. If they have the power to raise the money they spend by taxing power, I view that as the essence, and the Congress did grant those powers to the District of Columbia and that was affirmed by the Court.

Mr. LOSER. When was that decision?