Chapter X


Federal Operations Not
Related to Land


         STATE LAWS AND REGULATIONS RELATING TO MOTOR VEHICLES: Federally owned
and operated vehicles.--In an opinion by Justice Holmes, it was concluded
by the Supreme Court that a State may not constitutionally require a
Federal employee to secure a driver's permit as a perquisite to the operation
of a motor vehicle in the course of his federal employment.  Johnson
v. Maryland, 254 U.S. 51 (1920).  The court said (pp. 56-67):

                 Of course an employee of the United States does not secure a general
immunity from state law while acting in the course of his employment.
 That was decided long ago by Mr. Justice Washington in United States
v. Hart, Pat. C.C. 390.  5 Ops.Atty.Gen. 554.  It very well may be that,
when the United States has not spoken, the subjection to local laws would
extend to general rules that might affect incidentally the mode of carrying
out the employment--as, for instance, a statute or ordinance regulating
the mode of turning at the corners of streets.  Commonwealth v. Closson,
229 Massachusetts, 329.  This might stand on much the same footing as
liability under the common law of a State to a person injured by the
driver's negligence.  But even the most unquestionable and those concerning
murder, will not be allowed to control the conduct of a marshal of the
United States acting under and in pur-

294                      LAW OF LEGISLATIVE JURISDICTION

                 suance of the laws of the United States.  In re Neagle, 135 U.S.
1.

                 It seems to us that the immunity of the instruments of the United
States from state control in the performance of their duties extends
to a requirement that they desist from performance until they satisfy
a state officer upon examination that they are competent for a necessary
part of them and pay a fee for permission to go on.  Such a requirement
does not merely touch the Government servants remotely by a general rule
of conduct; it lays hold of them in their specific attempt to obey orders
and requires qualifications in addition to those hat the Government has
pronounced sufficient.  It is the duty of the department to employ persons
competent for their work and that duty it must be presumed has been performed.
 Keim v. United States, 177 U.S. 290, 293.

Even earlier, but on similar principles, the Gomptrolller of the Treasury
had disallowed payment of a fee for registration of a federally owned
motor vehicle.  115 Comp. Dec. 231 (1908).
         In Ex parte Willman, 277 Fed. 819 (S.D.Ohio, 1921), the driver of a
mail truck, on a street which was a post road, was held not to be subject
to arrest, conviction, and imprisonment because the lights on his truck,
which were those prescribed by the regulations of the Post Office department,
did not conform to the requirements of a State statute.  The court relied
on Johnson v. Maryland, supra, and Ohio v. Thomas, 173 U.S. 276 (1899),
in reaching its conclusion.
         An apparently contrary conclusion was reached in Virginia v. Stiff,
144 F.Supp. 169 (W.D.Va., 1956), in which the question was presented
as to whether State regulations as to the maximum weight of vehicles
using the highways were applicable to a truck owned and operated by the
Federal Government, and engaged on Federal business.  In holding such

                 FEDERAL OPERATIONS NOT RELATED TO LAND                  295

regulations to be applicable so as to subject the Government employee
truck driver to a criminal penalty, the court stated that their purpose
is to protect the safety of travellers and to protect the roads from
unreasonable wear; that the State of Virginia authorizes the use of highways
by overweight vehicles in case of emergency; and that the Department
of Defense seeks permits from the State to authorize the passage of overweight
vehicles.  It appears that in this case no facts were presented to indicate
whether there was any federally imposed requirement upon the driver to
operate the overweight truck, the defense being based merely on federal
ownership of the truck and the fact of its being engaged on Government
business.
         When Federal employees have failed to comply with local traffic regulations,
the courts have generally applied the test of whether noncompliance was
essential to the performance of their duties.  Thus, in Commonwealth
v. Closson, 229 Mass. 329, 118 N.E. 653 (1918), it was held that a mail
carrier is subject to the rules and regulations made by the street and
park commissioners requiring a traveller to drive on the right side of
the road and in turning.  In United States v. Hart, 26 Fed. Cas. 193,
No. 15,316 (C.C.D.Pa., 18107), it was held that an act of Congress prohibiting
the stopping of the mail is not to be so construed as to prevent the
arrest of the driver of a mail carriage when he is driving through a
crowded city at such a rate as to endanger the lives of the inhabitants.
 In Hall v. Commonwealth, 129 Va. 738, 105 S.E. 551 (1921), it was held
that the driver of a postal truck must comply with the State's speed
laws.  The court emphasized that no time schedules had been established
by the Post Office Department which would require excessive speed.
         That a Federal employee is not immune from arrest for noncompliance
with State traffic regulation where performance of his duties did not
necessitate such noncompliance

296                      LAW OF LEGISLATIVE JURISDICTION

is well illustrated by the following excerpt from the opinion of the
court in Oklahoma v. Willingham, 143 F.Supp. 445 (E.D.Okla., 1956, (p.
448):

                 The State of Oklahoma has not only the right hut the responsibility
to regulate travel upon its highways.  The power of the state to regulate
such travel has not been surrendered to the Federal Government.  An employee
of the Federal Government must obey the traffic laws of the state although
he may be traveling in the ordinary course of his employment.  No law
of the United States authorizes a rural mail carrier, while engaged in
delivering mail on his route, to violate the provisions of the state
those who use the highways.

                 Guilt or innocence is not involved, but there is involved a question
of whether or not the prosecution is based on an official act of the
defendant.  There is nothing official about how or when the defendant
re-entered the lane of traffic on the highway.  There is no official
connection between the acts complained of and the official duties of
the mail carrier.  The mere fact that the defendant was on duty and delivering
mail along his route does not present any federal question and administration
of the work of the Post Office Department does not require a carrier,
while delivering mail, to drive his car from a stopped position into
the path of an approaching automobile.  When he is charged with doing
so, his defense is under state law and is not different from that of
any other citizen.

         Where, on the other hand, the Federal employee could not discharge
his duties without violating State or local traffic regulations, it has
been that he is immune from any liability under State or local law for
such noncompliance.  Thus, in Lilly v. West Virginia, 29 F.2d 61 (C.A.
4, 1928), the court

                 FEDERAL OPERATIONS NOT RELATED TO LAND                  297

held that a Federal prohibition agent, who struck and killed a pedestrian
while pursuing a suspected criminal, was excepted from limitations of
speed prescribed by a city ordinance, provided that he acted in good
faith and with the acre that an ordinarily prudent person would have
exercised under the circumstances, the degree of care being commensurate
with the dangers.  The court said (p. 64):

                 The traffic ordinances of a city prescribing who shall have the right
of way at crossings and fixing speed limits for vehicles are ordinarily
binding upon officials of the federal government as upon all other citizens.
 Commonwealth v. Closson, 229 Mass. 329, 118 N.E. 653, L.R.A. 1918C,
939; United States v. Hart, 26 Fed. Cas. No. 15,316, page 193; Johnson
v. Maryland, 254 U.S. 51, 41 S.Ct. 16, 65 L.Ed. 126.  Such ordinances,
however, are not to be construed as applying to public officials engaged
in the performance of a public duty where speed and the right of way
are a necessity.  The ordinance of Huntington makes no exemption in favor
of firemen going to a fire or peace officers pursuing criminals, but
it certainly could not have been intended that pedestrians at street
intersections should have the right of way over such firemen or officers,
or that firemen or officers under such circumstances should be limited
to a speed of 25 miles, or  required to slow down at intersections so
as to have their vehicles under control.  Such a construction would render
the ordinances void for unreasonableness in so far as they applied to
firemen or officers engaged in duties, in the performance of which speed
is necessary; and we think that they should be construed as not applicable
to such officers, either state or federal, under such circumstances.
 State v. Gorham, 110 Wash. 330, 188 P.457, 9 A.L.R. 365; Farley v. Mayor
of New York City, 152 N.Y. 222, 46 N.E.D 506, 57 Am. St. Rep. 511; Hubert
v. Granzow, 131 Minn. 361, 155 N.W. 204, Ann. Cas.

298                      LAW OF LEGISLATIVE JURISDICTION

                 1917D, 563; State v. Burton, 41 R.I. 303, 103 A. 962, L.R.A. 1918F,
559; Edberg v. Johnson, 149 Minn. 395, 184 N.W. 12.

Similarly, in State v. Burton, 41 R.I. 303, 103 Atl. 962 (1918), it was
held that a member of the United States naval reserve, driving a motor
vehicle along a city street in the performance driving a motor vehicle
along a city street in the performance of an urgent duty to deliver a
dispatch under instructions from his superior officer, is not amenable
to local law regulating the speed of motor vehicles.  State laws, the
court held, are subordinate to the exigencies of military operations
by the Federal Government in time of war.
         Closely allied to these cases relating to the applicability of State
and local traffic regulations to Federal employees is the case of Bennett
v. Seattle, 22 Wash.2d 455, 156 P.2d 685 (1945), in which State traffic
regulations were held to have been suspended as a consequence of certain
action taken by the military.  Under the facts of the case, it appears
that the plaintiff in a negligence action was walking on the right, instead
of the left, side of the street, the latter ordinarily being required
by State law.  The court did not regard the State law as applicable in
view of the closing of the particular street to the public by Army officers.
 As to the Army's action, the court said (156 P.2d 687):

                 The highway was closed to general public travel in December, 1941.
 Public authority acquiesced in the action taken by the army officers.
 The appellant does not question the right and power of the officers
of the army to close the part of Sixteenth avenue from east Marginal
way to the bridge to public travel and to admit into the bridge to public
travel and to admit into the closed area only such Buses and automobiles
of employees of the Boeing plant as they deemed advisable; but it contends
that, notwithstanding this, such part of Sixteenth avenue did not cease
to be a public highway and that the statutory rules of the road still
applied.
         *          *          *          *           *

                 FEDERAL OPERATIONS NOT RELATED TO LAND                  299

                 The action taken in closing the highway to public use did not infringe
upon, or interfere with, the exercise of any prerogative of sovereignty
or any governmental function of the state or its legal subdivisions.
 The appellant, in maintaining its streets, acts in a proprietary capacity,
and it acquired no right in a statutory rule of conduct by a pedestrian
on the highway that would prevent its temporary suspension when such
became necessary or convenient by an exercise of a war power of the kind
we are new considering.

         Vehicles operated under Federal contract.--State laws which constitutionally
cannot have any application to motor vehicles owned and operated by the
Federal Government may, in many instances, be applicable to motor vehicles
which are privately owned but which, under contract with the Federal
Government, are used for many of the same purposes for which federally
owned vehicles are used.  A distinction must be made on the basis of
ownership; the ownership may be of decisive significance.
         Thus, it has been held that a State may tax vehicles which are used
in  operating a stage line and make constant use of the highways, notwithstandin
g the fact that they carry mail under a Federal contract; moreover, such
tax may be measured by gross receipts, even though over on-half of the
taxes income is derived from mail contracts.  Alward v. Johnson, 282
U.S. 509 (1931).  The Supreme Court said (p. 514):

                 Nor do we think petitioner's property was entitled to exemption from
state taxation because used in connection with the transportation of
the mails.  There was no tax upon the contract for such carriage; the
burden laid upon the property employed affected operations of the Federal
Government only remotely.  Railroad Co. v. Peniston, 18 Wall. 5, 30;
Metclf & Eddy v. Mitchell,

300                      LAW OF LEGISLATIVE JURISDICTION

                 269 U.S. 514.  The facts in Panhandle Oil Co. v. Mississippi, 277
U.S. 218, and New Jersey Bell Tel. Co. v. State Board, 280 U.S. 338,
were held to establish direct interference with or burden upon the exercise
of a Federal right.  The principles there applied are not controlling
here.

In reliance on this case, it was concluded, in Crowder v. Virginia, 197
Va. 96, 87 S.E.2d 745 (1955), app. dism., 250 U.S. 957, that a carrier
is not exempt from a State's gross receipts tax even though, under a
contract with the Post Office Department, it was engaged in the interstate
carriage of mails, under direction from the Government as to routes,
schedules and termini.  A contractor engaged in transporting mail is
not exempt from payment of State motor fuel taxes.  Op.A.G., Ill., p.
219, No. 2583 (Apr. 21, 1930).  Nor is a contractor who is engaged in
work for the Federal Government on a cost-plus-a-fixed-fee basis.  Id.
p. 252, No. 199 (Nov. 19, 1940).  In Baltimore & A.R.R. v. Lichtenberg,
176 Md. 383, 4 A.2d 734 (1939), app. dism., 308 U.S. 525, a contractor
with the federal Government for the transportation of workmen to a Government
project was held subject to State regulation as a common carrier.  In
Ex parte Marshall, 75 Fla. 97, 77 So. 869 (1918), it was held that a
bus company which enters into a contract with the military to transport
troops between a military camp and a city, subject to terms and conditions
specified in the contract, the United States having no other interest
or ownership in or control over the buses, is liable to pay a local license
tax for the operation of the buses.  In reliance on

                 FEDERAL OPERATIONS NOT RELATED TO LAND                  301

the decision in Ex parte Marshall, supra, it was held in State v. Wiles,
116 Wash. 387, 199 P. 749 (1921), that a contractor engaged in carrying
mail for the United States within the State is not exempt from a State
statute making it unlawful to operate motor trucks on the highways without
first securing a license therefor, the fee varying according to the capacity
of the truck.  The court said that such a fee is not a direct tax on
the property of the Federal Government or on instrumentalities used by
it in the discharge of its constitutional functions, but at most an indirect
and immaterial interference with the conduct of government business.
         Even though title to a vehicle is not in the Federal Government, a
State vehicle tax may not be levied on an automobile owned by a Federal
instrumentality has been declared to be immune from State taxes.  See
Roberts v. Federal Land Bank of New Orleans, 189 Miss. 898, 196 So. 763
(1940).  And in an early case, United States v. Barney, 24 Fed. Cas.
1014. No. 14,525 (D.Md., circa 1810), it was held that a Federal statute
prohibiting the stoppage of the mails serves to prevent the enforcement,
under State law, of a lien against privately owned horses used to draw
mail carriages.
         STATE LICENSE, INSPECTION AND RECORDING REQUIREMENTS: Licensing of
Federal activities.--The case of United States v. Murray, 61 F.Supp.
415 (E.D.Mo., 1945), involved a holding that a local subdivision could
not require an inspector employed by the Office of Price Administration

302                      LAW OF LEGISLATIVE JURISDICTION

to conform with local requirements covering food handlers.  The court
said (p. 417):

                 It is fundamental that the officers, agents, and instruments of the
United States are immune from the provisions of a city ordinance in the
performance of their duties.  This principle of law, while having exceptions
not here involved, applies to the ordinance alleged to have been the
basis of the defendants' conduct in this case.  It is the duty of the
Government and its agencies to employ persons qualified and competent
for their work.  That duty it must be presumed to have performed, and
a city cannot by ordinance impose further qualifications upon such officers
and agents as a condition precedent to the performance and execution
of duties prescribed under federal law.

         Applicability of inspection laws to Federal functions.--The United
States Supreme Court has held that a State's inspection laws generally
are inapplicable to activities of the Federal

                 FEDERAL OPERATIONS NOT RELATED TO LAND                  303

Government, even though such laws may be for the protection of the general
public.  Mayo v. United States, 319 U.S. 441 (1943).  In that case a
State was held to be without consti-

304                      LAW OF LEGISLATIVE JURISDICTION

tutional power to exact an inspection fee with respect to fertilizers
which the Federal Government owned and distributed within the State pursuant
to provisions of the Soil Conservation and Domestic Allotment Act.  The
court said (pp. 447-448):

                 These inspection fees are laid directly upon the United States.
They are money exactions the payment of which, if they are enforceable,
would be required before executing a function of government.  Such a
requirement is prohibited by the supremacy clause. * * * These fees are
like a tax upon the right to carry on the business of the post office
or upon the privilege of selling United States bonds through federal
officials.  Admittedly the state inspection service is to protect consumers
from fraud but in carrying out such protection, the federal government
must be left free.  This freedom is inherent in sovereignty.  The silence
of Congress as to the subjection of its instrumentalities, other than
the United States, to local taxation or regulation is to be interpreted
in the setting of the applicable legislation and the particular exaction.
 Shaw v. GibsonZahniser Oil Corp., 276 U.S. 575, 578.  But where, as
here, the governmental action is carried on by the United States itself
and Congress does not affirmatively declare its instrumentalities or
property subject to regulation or taxation, the inherent freedom continues.

         Recording requirements.--It has also been held that the Federal Government
is not required to comply with State recording requirements in order
to protect its rights.  In the Matter of American Boiler Works, Inc.,
Bankrupt, 220 F.2d 319 (C.A. 3, 1955); see also Norman Lumber Co. v.
United States, 223 F.2d 868 (C.A. 4 1955).  In In re Read-York, Inc.,
152 F.2d 313 (C.A. 7, 1945), it was held that the failure

                 FEDERAL OPERATIONS NOT RELATED TO LAND                  305

of the Federal Government to record a contract for the manufacture and
delivery of gliders to the Army, in compliance with Wisconsin's public
policy and statutes, did not prevent title from passing to the Federal
Government, upon the making of partial payments, as against the manufacturer's
trustee in bankruptcy.  These results are in accord with an earlier decision
by the United States Supreme Court, in United States v. Snyder, 149 U.S.
210 (1893), in which it was held that the lien imposed by Federal statute
to secure the payment of a Federal tax is not subject to the requirement
of a State statute that liens shall be effective only if recorded in
the manner specified by the State statute.  In United States v. Allegheny
County, 322 U.S. 174 (1944), the court said (p. 183):

                 * * * Federal statutes may declare liens in favor of the Government
and establish their priority over subsequent purchasers or lienors irrespective
of state recording acts. * * * Or the Government may avail itself, as
any other lienor, of state recording facilities, in which case, while
it has never been denied that it must pay nondiscriminatory fees for
their use, the recording may not be made the occasion for taxing the
Government's property.* * *

         The courts of the State of Virginia have also recognized that State
registration requirements can have no application to the Federal Government.
 In United States v. William R. Trigg Co., 115 Va. 272, 78 S.E. 542 (1912),
the question was presented as to whether the Federal Government is required
to comply with the State registry laws and have its contracts recorded
in order to make effective the liens reserved in such contracts, as against
those who have no prior liens.  The court said (78 S.E. 544):

                 This power to contract, which is an incident of the sovereignty of
the United States, and is, as stated by Judge Marshall, coextensive with
the duties and powers of government, carries with it complete exemption
of the

306                      LAW OF LEGISLATIVE JURISDICTION

                 government from all obligation to comply with State registry laws,
for the reason that it would grievously retard, impede, and burden the
sovereign right of the government to subject it to the operation of such
laws. * * *

                 If the states had the power to interfere with the operations of the
federal government by compelling compliance on its part with state laws,
such as the registry statutes, then, in the language of the Supreme Court,
the potential existence of the government would be at the mercy of state
legislation. * * *

         While State recording requirements cannot in any way be applicable
to the Federal Government, and while noncompliance therewith will not
serve to dilute the right of the Federal Government, it is clear that
should the Federal Government decide to avail itself of State recording
facilities it must pay to the State a reasonable fee therefor, but it
cannot be subjected, without its consent, to State taxes which may be
imposed upon such recordation.  Federal Land Bank of New Orleans v. Crosland,
261 U.S. 374 (1923).  In Pittman v.  Home Owners' Loan Corp., 308 U.S.
21 (1939), it was held that the Maryland tax on mortgages, graded according
to the amount of the loan secured and imposed in addition to the ordinary
registration fee as a condition to the recordation of the instrument,
cannot be applied to a mortgage tendered for record by the Home Owners'
Loan Corporation, in view of the provisions of the Home Owners' Loan
act which declares the corporation to be an instrumentality of the Federal
Government and which provides for its exemption from all State and municipal
taxes.  In the course of its opinion, the court said (pp. 32-33):

                 FEDERAL OPERATIONS NOT RELATED TO LAND                  307

                 We assume here, as we assumed in Graves v. New York ex rel. O'Keefe,
306 U.S. 466, that the creation of the Home Owners' Loan Corporation
was a constitutional exercise of the Corporation through which the national
government lawfully acts must be regarded as governmental functions and
as entitled to whatever immunity attaches to those functions when performed
by the government itself through its departments.  McCulloch v. Maryland,
4 Wheat. 316, 421, 422; Smith v. Kansas City Title Co., 255 U.S. 180,
208, 209; Graves v. New York ex rel. O'Keefe, supra.  Congress has not
only the power to create a corporation to facilitate the performance
of governmental functions, but has the power to protect the operations
thus validly authorized.  "A power to create implies a power to preserve."
 McCulloch v. Maryland, supra, p. 426.  This power to preserve necessarily
comes within the range of the express power conferred upon Congress to
make all laws which shall be necessary and proper for carrying into execution
all powers vested by the Constitution in the Government of the United
States.  Const. Art. I, 8, par. 18.  In the exercise of this power to
protect the lawful activities of its agencies, Congress has the dominant
authority which necessarily inheres in its action within the national
field.  The Shreveport Case, 234 U.S. 342, 351, 352.  The exercise of
this protective power in relation to state taxation has many illustrations.
 See, e.g., Bank v. Supervisors, 7 Wall. 26, 31; Choate v. Trapp, 224
U.S. 665, 668, 669; Smith v. Kansas City Trapp Co., supra, p. 207; Trotter
v. Tennessee, 290 U.S. 354, 356; Lawrence v. Shaw, 300 U.S. 245, 249.
 In this instance, Congress has undertaken to safeguard the operations
of the Home Owners' Loan Corporation by providing the described immunity.
 As we have said, we construe this provision as embracing

308                      LAW OF LEGISLATIVE JURISDICTION

                 and prohibiting the tax in question.  Since Congress had the constitutional
authority to enact this provision, it is binding upon this Court as the
supreme law of the land.  Const. Art. VI.

         APPLICABILITY OF STATE CRIMINAL LAWS TO FEDERAL EMPLOYEES AND FUNCTIONS:
Immunity of Federal employees.--It is well established that an employee
of the Federal Government is not answerable to State authorities for
acts which he was authorized by Federal laws to perform.  In In re Neagle,
135 U.S. 1 (1890), it was held that the State of California had no criminal
jurisdiction over an acting deputy United States marshal who committed
a homicide in the course of defending a United States Supreme Court justice
while the latter was in that State in the performance of his judicial
functions; that a wit of habeas corpus is an appropriate remedy for freeing
such employee from the custody of State authorities; and that the Federal
courts may determine the propriety of the employee's conduct under Federal
law.  The court said (p. 75):

                 * * * To the objection made in argument, that the prisoner is discharged
by this writ from the power of the state court to try him for the whole
offence, the reply is, that if the prisoner is held in the state court
to answer for an act which he was authorized to do by the law of the
United States, which it was his duty to do as marshal of the United States,
and if in doing that act he did no more than what was necessary and proper
for him to do, he cannot be guilty of a crime under the law of the State
of California.  When these thins are shown, it is established that he
is innocent of any crime against the laws of the State, or of any authority
whatever.  There is no occasion for any further trial in the state court,
or in any court.  The Circuit Court of the

                 FEDERAL OPERATIONS NOT RELATED TO LAND                  309

                 United States was as competent to ascertain these facts as may other
tribunal, and it was not at all necessary that a jury should be impanelled
to render a verdict on them. * * *

         The underlying constitutional considerations prompting the conclusion
that a State may not prosecute a Federal employee for acts authorized
by Federal law were set forth in some detail in Tennessee v. Davis, 100
U.S. 257 (1880).  In that case it was held that a State indictment of
a Federal revenue agent for a homicide committed by him in the course
of his duties is removable to a Federal court.  In its opinion, the court
said (pp. 262-263):

                 Has the Constitution conferred upon Congress the power to authorize
the removal, from a State court to a Federal court, of an indictment
against a revenue officer for an alleged crime against the State, and
to order its removal before trial, when it appears that a Federal question
or a claim to a Federal right is raised in the case, and must be decided
therein?  A more important question can hardly be imagined.  Upon its
answer may depend the possibility of the general government's preserving
its own existence.  As was said in Martin v. Hunter (1 Wheat. 363), "the
general government must cease to exist whenever it loses the power of
protecting itself in the exercise of its constitutional powers."  It
can act only through its officers and agents, and they must act within
the States.  If, when thus acting, and within the scope of their authority,
those officers can be arrested and brought to trial in a State, yet warranted
by the Federal authority they possess, and if the general government
is powerless to interfere at once for their protection,--if their protection
must be left to the action of the State court,--the operation of the
general government may at any time be arrested at the will of one of
its members.  The legis-

310                      LAW OF LEGISLATIVE JURISDICTION

                 lation of a State may be unfriendly.  It may affix penalties to acts
done under the immediate direction of the national government, and in
obedience to its laws.  It may deny the authority conferred by those
laws.  The State court may administer not only the laws of the State,
but equally Federal law, in such a manner as to paralyze the operations
of the government.  And even if, after trial and final judgment in the
State court, the case can be brought into the United States court for
review, the officer is withdrawn from the discharge of his duty during
the pendency of the prosecution, and the exercise of acknowledge Federal
power arrested.

                 We do not think such an element of weakness is to be found in the
Constitution.  The United States is a government with authority extending
over the whole territory of the Union, acting upon the States and upon
the people of the States.  While it is limited in the number of its powers,
so far as its sovereignty extends it is supreme.  No State government
can exclude it from the exercise of any authority conferred upon it by
the Constitution, obstruct its authorized officers against its will,
or withhold from it, for a moment, the cognizance of any subject which
that instrument has committed to it.

         The principle that a Federal official or employee is not liable under
State law for act done pursuant to Federal authorization has been applied
in many instances.  Thus, it has been held that a State's laws relating
to homicide or assault cannot be enforced against a Federal employee
who, while carrying out his duties, committed a homicide or assault in
the course of making an arrest, maintaining the peace, or pursuing a
fugitive.  Brown v. Cain, 56 F.Supp. 56 (E.D.Pa., 1944); Castle v. Lewis,
254 Fed. 917 (C.A. 8, 1918); Ex parte Dickson, 14 F.2d 609 (N.D.N.Y.,
1926); Ex parte Warner, 21 F.2d 542 (N.D.Okla., 1927); In re Fair, 100
Fed. 149 (C.C.

                 FEDERAL OPERATIONS NOT RELATED TO LAND                  311

D. Neb., 1900); In re Laing, 127 Fed. 213 (C.C.S.D.W.Va., 1903); Kelly
v. Georgia, 68 Fed. 652 (S.D.Ga., 1895); North Carolina v. Kirkpatrick,
42 Fed. 689 (C.C.W.D.N.C., 1890); United States v. Fullhart, 47 Fed.
802 (C.C.W.D.Pa., 1891); United States v. Lewis, 129 Fed. 823 (C.C.W.D.Pa.,
1904), aff'd., 200 U.S. 1 (1906); United States v. Lipssett, 156 Fed.
65 (W.D. Mich., 1907).
         It has likewise been held that a United States marshal cannot be subjected
to arrest and imprisonment by a State for acts done pursuant to the commands
of a writ issued by a Federal court.  Anderson v. Elliott, 101 Fed. 609
(C.A. 4, 1900), app. dism., 22 S.Ct. 930, 46 L.Ed. 1262 (1902); Ex parte
Jenkins, 13 Fed. Cas. 445, No. 7,259 (C.C.E.D.Pa., 1953).  A State militia
officer who, under the orders of a governor of a State, employs force
to resist and prevent a United States marshal from executing process
issued under a Federal decree is subject to punishment for violating
the laws of the United States.  United States v. Bright, 24 Fed. Cas.
1232, No. 14,647 (C.C.D.Pa., No. 15,320 (C.C.D.Md., 1845), Justice Taney
held that on an indictment for obstructing the mails it is no defense
that a warrant had been issued under State law in a civil suit against
the mail carrier.
         Obstruction of Federal functions.--It has been held in a number of
cases that State laws will not be applied to Federal employees or their
activities where the application of such laws would serve to obstruct
the accomplishment of legitimate Federal objectives.  Thus, a State law
prohibiting the carrying of arms may not be applied to a deputy United
States marshal seeking to make an arrest.  In re Lee, 46 Fed. 59 (D.Miss.,
1891), (but this case was reversed--47 Fed. 645--on the basis of a Federal
statute which limited the authority of marshals to the State for which
they were appointed.  Marshals now may carry firearms, nevertheless-
see U.S.C. 3053).  A State statute providing for the punishment of one
who maliciously threatens to accuse a person of a crime in or-

312                      LAW OF LEGISLATIVE JURISDICTION

der to compel him to do an act has no application to a United States
pension examiner who is charged with the duty of investigating fraudulent
pension claims.  In re Waite, 81 Fed. 359 (N.D.Iowa, 1897), app. dism.,
180 U.S. 635.  Nor may a State proceed against a Federal military officer
for allegedly disturbing the peace in clearing a roadway of civilians
to enable a military company to proceed to a place where a National Guard
recruitment program was being conducted, it has been held.  In re Wulzen,
235 Fed. 362 (S.D. Ohio, 1916).
         Nearly all the case cited immediately above involved the release, by
a Federal court, on a writ of habeas corpus, of a prisoner from State
custody.  On the other hand, a prisoner held pursuant to Federal authority
is beyond the reach of the pursuant to State for release by writ of habeas
corpus.  See Adbeman v. Booth, 21 How. 506 (1859); Tarble's Case, 13
Wall. 397 (1871).  Similarly, property obtained by a United States marshal
by virtue of a levy of execution under a judgment of a Federal court
may not be recovered by an action for replevin in a State court.  See
Covell v. Heyman, 111 U.S. 176 (1884).  In Ex parte Robinson, 20 Fed.
Cas. 965, No. 11934 (C.C.S.D.Ohio, 1856), it was held that a Federal
court may order the discharge of a Federal marshal who was held in State
custody for contempt because of his refusal to produce certain persons
named in a writ of habeas corpus issued by a State judge.

         Liability of employees acting beyond scope of employment.-Federal officials
and employees are not, of course, above the laws of the State.  Whatever
their exemption from State law while engaged in performing their Federal
functions, this exemption does not provide an immunity from arrest for
the commission of a felony not related to the carrying out of the functions.
 United States v. Kirby, 7 Wall. 482(1868).  In In re lewis, 83 Fed.
159 (D.Wash., 1897), it was stated that a Federal officer who, in the
performance of what he conceives to be his official duty, transcends
his au-

                 FEDERAL OPERATIONS NOT RELATED TO LAND                  313

thority and invades private rights, is liable to the individuals injured
by his actions (however, it has been held that absent criminal intent
he is not liable under the criminal laws of the State).  Employment as
a mail carrier does not provide the basis for an exemption from the penalty
under a State statute prohibiting the carrying of concealed weapons,
in the absence of a showing of "authority from federal government empowering
him as a mail carrier to carry weapons in a manner prohibited by state
laws."  Hathcote v. State, 55 Ark. 183, 17 S.W. 721 (1891).  However,
even when a soldier is subject to punishment by a State, for an act not
connected with his duties as a soldier, when the punishment will serve
to interfere with the performance of duties owned by him to the Federal
Government a Federal court will require utmost good faith on the part
of the State authorities, and any unfair or unjust discrimination against
the offender because he is a soldier, or departure from the strict requirements
of the law, or any cruel or unusual punishment, may be inquired into
by the federal courts in proceedings instituted by the soldier's commanding
officer.  The imposition of a sentence of sixty days for an offense which
did not result in injury to person or property was held unwarranted,
and the court discharged the soldier on a writ of habeas corpus.  Ex
parts Schlaffer, 154 Fed. 921 (S.D.Fla., 1907).

         LIABILITY OF FEDERAL CONTRACTORS TO STATE TAXATION: Original immunity
of Federal contractors.--In Panhandle Oil Company v. Knox, 277 U.S. 218
(1928), it was held that a State tax imposed on dealers in gasoline for
the privilege of selling, and measured at so many cents per gallon of
gasoline sold, is void under the Federal Constitution as applied to sales
to instrumentalities of the Federal Government, such as the Coast Guard
Fleet and a veterans' hospital.  In Graves v. Texas Company, 298 U.S.
393 (1939), the court struck down as violative of the Constitution, when
applied to sales to the Federal Government, a State tax providing that,
"every distributor, refiner, retail dealer or storer of gaso-

314                      LAW OF LEGISLATIVE JURISDICTION

line * * * shall pay an excise tax of six cents ($0.06) per gallon upon
the selling, distributing, storing or withdrawing from storage in this
State for any use, gasoline * * *".  The court held that a tax on storage,
or withdrawal from storage, essential to sales of gasoline to the Federal
Government, is as objectionable, constitutionally, as a tax upon the
sales themselves.  However, even in that day it was held that a tax was
not objectionable merely because the person upon whom it was imposed
happened to be a contractor of a government Metcalf & Eddy v. Mitchell,
269 U.S. 514 (1926).

         Later view of contractors' liability.--In the decisions rendered by
the Supreme Court, beginning in 1937 to date, the earlier decisions have
not been followed.  New tests for measuring the validity of State taxes
on federal contractors were devised in James v. Dravo Contracting Co.,
302 U.S. 134 (1937).  One of the issues involved in that case was whether
a gross sales and income tax imposed by a State on a Federal contractor
doing work on a Federal dam is invalid on the ground that it lays a direct
burden upon the Federal Government.  In sustaining the validity of the
tax, the court observed (1) that the tax is not laid upon the Federal
Government, its property or officers; (2) that it is not laid upon an
instrumentality of the Federal Government; and (3) that it is not laid
upon the contract of the Federal Government.  The decision in the Panhandle
case, supra, was limited to the facts involved in that case.  The fact
that the State the State tax might increase the price to the Federal
Government did not, the court indicated, render it constitutionally objectionabl
e.  In answer to the argument that a State might, conceivably, increase
the tax from 2% to 50%, the court said (302 U.S. 161):

                 * * * The argument ignores the power of Congress to protect the performance
of the functions of the National Government and to prevent interference
there with through any attempted state action. * * *

                 FEDERAL OPERATIONS NOT RELATED TO LAND                  315

         In Alabama v. King & Boozer, 314 U.S. 1 (1941), the court not only
made a further departure from the doctrine of the Panhandle case, but
it expressly overruled the decision in that case.  Involved was a sale
of lumber by King & Boozer to "cost-plus-afixed-fee" contractors for
use by the latter in constructing an army camp for the Federal Government.
 The question presented for the Federal Government.  The question presented
for decision was whether the Alabama sales tax with which the seller
was chargeable, but which he was required to collect from the buyer,
infringes any constitutional immunity of the Federal Government from
State taxation.  In sustaining the tax, the court said (pp. 8-9):

                 * * * The Government, rightly we think, disclaims any contention
that the Constitution, unaided by Congressional legislation, prohibits
a tax exacted from the Congressional legislation, prohibits a tax exacted
from the contractors merely because it is passed on economically, by
the terms of the contract or otherwise, as a part of the construction
cost to the Government.  So far as such a non-discriminatory state tax
upon the contractor enters into the cost of the materials to the Government,
that is but a normal incident of the organization within the same territory
of two independent taxing sovereignties.  The asserted right of the one
to be free of taxation by the other does not spell immunity from paying
the added costs, attributable to the taxation of those who furnish supplies
to the Government and who have been granted no tax immunity.  So far
as a different view has prevailed, see Panandle Oil Co. v. Knox, supra;
Graves v. Texas Co., supra, we think it no longer tenable. * * *

The court rejected the Government's contention that the legal incidence
of the tax was on the Federal Government (p. 14):

                 We cannot say that the contractors were not, or that the Government
was, bound to pay the purchase price, or that the contractors were not
the purchasers on whom the statute lays the tax.  The added circum-

316                      LAW OF LEGISLATIVE JURISDICTION

                 stance that they were bound by their contract to furnish the purchased
material to the Government and entitled to be reimbursed by it for the
cost, including the tax, no more results in an infringement of the Government
immunity than did the tax laid upon the contractor's gross receipts from
the Government in James v. Dravo Contracting Co., supra. * * *

         Immunity of Federal property in possession of a contractor.-Where,
however, the tax is on machinery owned by the Federal Government, or
where the tax imposed by a State on a contractor of the Federal Government
is based, in part, upon the value of the machinery which is owned by
the Federal Government but which is installed in the contractor's plant,
the tax is objectionable on constitutional grounds.  Thus, in United
States v. Allegheny County, 322 U.S. 174 (1944), the court, in holding
such a tax to be invalid, said (pp. 182-183):

                 Every acquisition, holding, or disposition of property by the Federal
Government depends upon proper exercise of a constitutional grant of
power.  In this case no contention is made that the contract with Mesta
is not fully authorized by the congressional power to raise and sport
armies and by adequate congressional authorization to the contracting
officers of the War Department.  It must be accepted as an act of the
Federal Government warranted by the Constitution and regular under statute.

                 Procurement policies so settled under federal authority may not be
defeated or limited by state law.  The purpose of the supremacy clause
was to avoid the intro-

                 FEDERAL OPERATIONS NOT RELATED TO LAND                  317

                 duction of disparities, confusions and conflicts which would follow
if the Government's general authority were subject to local controls.
 The validity and construction of contracts through which the United
States is exercising its constitutional functions, their consequences
on the rights and obligations of the parties, the titles or liens which
they create or permit, all present questions of federal law not controlled
by the law of any State.  * * *

The court added (pp. 188-189):

                 A State may tax personal property and might well tax it to one in
whose possession it was found, but it could hardly tax one of its citizens
because of moneys of the United States which were in his possession as
Collector of Internal Revenue, Postmaster, Clerk of the United States
Court, or other federal officer, agent, or contractor.   We hold that
Government-owned property, to the full extent of the Government's interest
therein,s immune from taxation, either as against the Government itself
or as against one who holds it as a bailee.

         The facts in the Allegheny case were distinguished from those involved
in Esso Standard Oil Co. v. Evans, 345 U.S. 496 (1953), in which the
Supreme Court sustained a State tax upon the storage of gasoline; the
fact that the gasoline was owned by the Federal Government did not, the
court held, relieve the storage company of the obligation to pay the
tax.  The court said (pp. 499-500):

                 This tax was imposed because Esso stored gasoline.  It is not, as
the Allegheny County tax was, based on the worth of the government property.
 Instead, the worth of the government property.  Instead, the amount
collected is graduated in accordance with the exercise of Esso's privilege
to engage in such operations;

318                      LAW OF LEGISLATIVE JURISDICTION

                 so it is not "on" the federal property as was Pennsylvania's.  Federal
ownership of the fuel will not immunize such a private contractor from
the tax on storage.  It may generally, as it did here, burden the United
States financially.  But since James v. Dravo Contracting Co., 302 U.S.
134, 151, this has been no fatal flaw.  We must look further, and find
either a stated immunity created by Congress in the exercise of a constitutional
 power, or one arising by implication from our constitutional system
of dual government.
                 Neither condition applies to the kind of governmental operations
here involved.   There is no claim of a stated immunity.  And we find
none implied.  The United States, today, is engaged in vast and complicated
operations in business fields, and important purchasing, financial, and
contract transactions with private enterprise.  The Constitution does
not extend sovereign exemption from state taxation to corporations or
individuals, contracting with the United States, merely because their
activities are useful to the Government.  We hold, therefore, that sovereign
immunity dies n prohibit this tax.

         Economic burden of State taxation on the United States.--The Supreme
Courts' emphasis of the legal incidence, test, as distinguished from
the rejected test of the economic consequences, is best illustrated in
Kern-Limerick, Inc. v. Scurlock, 347 U.S. 110 (1954).  In that case,
the court held that a State tax of 2% of the gross receipts from all
sales in the State could not be applied to transactions whereby private
contractors procured two tractors for use in constructing a naval ammunition
depot under a cost-plusa-fixed-fee contract which provided that the contractor
should act as a purchasing agent for the Federal Government and that
title to the purchased articles should pass directly from the vendor
to the Federal Government, with the latter being solely obligated to

                 FEDERAL OPERATIONS NOT RELATED TO LAND                  319

pay for the articles.  The Supreme Court said (pp. 122-123):

                 We find that the purchaser under this contract was the United States.
 Thus, King & Boozer is not controlling for, thought the Government also
bore the economic burden of the state tax in that case, the legal incidence
of that tax was held to fall on the independent contractor and not upon
the United States.  The doctrine of sovereign immunity is so embedded
in constitutional history and practice that this Court cannot subject
the Government or its official agencies to state taxation without a clear
congressional mandate.  No instance of such submission is shown.

                 Nor do we think that the drafting of the contract by the Navy Department
to conserve Government funds, if that was the purpose, changes the character
of the transaction.  As we have indicated, the intergovernmental submission
to taxation is primarily a problem of finance and legislation.  But since
purchases by independent contractors of supplies for Government construction
or other activities do not have federal immunity from taxation, the form
of contracts, when governmental immunity is not waived by Congress, may
determine the effect of state taxation on federal agencies, for decisions
consistently prohibit taxes levied on the property or purchases of the
Government itself.

         Legislative exemption of Federal instrumentalities.--The Supreme Court,
in the first of the two excerpts quoted above from its opinion in King
& Boozer, made reference to legislative exemption.  Such legislative
exemption of instrumentalities of the Federal Government has been sustained
in two relatively recent cases.  In federal Land Bank of St. Paul v.
Bismarck Lumber Co., 314 U.S. 95 (1941), the Supreme Court held that
statutory exemption from State taxation was a good defense to a State's
attempt to collect a sales tax on lumber purchased by the Federal Land
Bank for repairs to a farm

320                      LAW OF LEGISLATIVE JURISDICTION

which it had acquired by foreclosure.  The Supreme Court said (pp. 102
103):

                 Congress has constitutionally created.  This conclusion follows naturally
from the express grant of power to Congress "to make all laws which shall
be necessary and proper for carrying into execution all powers vested
by the Constitution in the Government of the United States.  Const. Art.
I, 8, par. 18."  Pittman v. Home Owners' Loan Corp., 308 U.S. 21, 33,
and cases cited.  We have held on three occasions that Congress has authority
to prescribe tax immunity for activities connected with, or in furtherance
of, the lending functions of federal credit agencies.  Smith v. Kansas
City Title & Trust Co., supra; Federal Land Bank v. Crosland, 261 U.S.
374; Pittman v. Home Owners' Loan Corp., surpra. * * *

Similarly, in Carson v. Roane-Anderson Company, 342 U.S. 232 (1952),
the Supreme Court held that, under the provisions of the Atomic Energy
Act, Tennessee could not enforce its sales tax on sales by third persons
to contractors of the Atomic Energy Commission.  In sustaining the immunity
provided by the Atomic Energy Act, the Supreme court said (pp.233-234):

                 * * * The constitution power of Congress to protect any of its agencies
from state taxation (Pittman v. Home Owners' Loan Corporation, 308 U.S.
21; Federal Land Bank v. Bismarck Co., 314 U.S. 95) has long been recognized
as applying to those with whom it has made authorized contracts.  See
Thomson v. Pacific R. Co., 9 Wall. 579, 588-589; James v. Dravo Contracting
Co., 302 U.S. 134, 160-161.  Certainly the policy behind the power of
Congress to create tax immunities does not turn on the nature of the
agency doing the work of the Government.  The power stems from the power

                 FEDERAL OPERATIONS NOT RELATED TO LAND                  321

                 to preserve and protect functions validly authorized (Pittman v.
Home Owners' Corp., supra, p. 33)--the power to make all laws necessary
and proper for carrying into execution the powers vested in the Congress.
 U.S. Const., Art. I, 8, cl. 18. * * *