No. 38.

ADJUTANT GENERAL'S OFFICE,

Washington, October 25, 1900.

By direction of the Secretary of War, the following opinion of the Honorable the Attorney General regarding the right of a sheriff to enter a military reservation of the United States over which exclusive jurisdiction has been ceded by the State within which the same is located, for the purpose of serving a civil process therein, is published to the Army for the information and guidance of all concerned:

DEPARTMENT OF JUSTICE, WASHINGTON, D. C., September 26, 1990.

The Honorable the SECRETARY OF WAR.

SIR: I have the honor to acknowledge the receipt of your letter of January 27, 1898, in which you ask my opinion as to whether a sheriff in the State of Georgia has the right to enter upon a Government military reservation within the county for which he is sheriff, with a warrant of attachment issued by a State court in Georgia, for the purpose of levying upon personal property then in use by the defendant in the attachment on the reservation in constructing a gun battery for the United States under contracts for your department.

It appears from your letter that the reservation in question is on Tybee Island. about seventeen miles below Savannah, Georgia, and contains about two hundred and ten acres. It was conveyed to the United States by John Screven, et al., by deed dated May 21, 1975. The land was purchased as a site for fortifications from the appropriation made by Congress for purchase of sites proposed to be occupied for permanent seacoast defenses" (act of March 3, 1871, 16 Stat. L..554). It further appears that within the two hundred and ten acre tract is a lighthouse reservation of about six acres which is independent of the military reservation, the former being under control of the Treasury Department and the latter under the control of your department. The lighthouse reservation appears to have been transferred to the United States by an act of the State of Georgia dated December 15, 1791, and this statute does not contain any reservation of the right of the State to serve process of any kind. It further appears that on December 22, 1808, an act of the General Assembly of the State of Georgia was approved by the governor, which reads as follows:

SECTION 1. Be it enacted by the General Assembly of the State of Georgia that from and immediately after the passing of this act, the Congress of the United States shall have and maintain jurisdiction in and over all the lands they have purchased or which have been ceded or otherwise acquired by them, or hereafter may be acquired, for the purpose of erecting forts or fortifications in this State: Provided, the said United States do or shall cause forts or fortifications to be erected

Subsequently, on March 2, 1874, an act of the General Assembly of the State of Georgia was approved, which provides, inter alia, as follows:

An act to provide for the relinquishment to the United States, in certain cases, title to, and jurisdiction over, lands for sites for lighthouses, and for other purposes, on the coast and waters of this State.

Whereas, The Congress of the United States has made appropriations for the construction of a lighthouse and dumb beacons in the Savannah River, and the wants of commerce may hereafter call for the construction of others on the coast and waters of this State; and

Whereas, The laws of the United States require that the said United States shall hold exclusive title to. and jurisdiction over, all lands to be occupied as sites of public works before any such work can be begun; therefore,

SECTION 1. Be it enacted, etc., That whenever a tract of land, containing not more than five acres, shall be selected by an authorized officer or agent of the United States, for the bona fide purpose of erecting thereon a lighthouse, beacon, or buildings connected therewith, and the title to the said land shall be held by the State, then, on application by the said officer or agent to the governor of this State, the said executive is hereby authorized to transfer to the United States the title to, and jurisdiction over, said land: but if the title to the land wanted shall not be held by the State, then, on application of the United States through their officer or agent, after acquiring title thereto by purchase or otherwise, the said executive is hereby authorized to transfer to the United States exclusive jurisdiction over the same: Provided, always, that the said transfer of title and jurisdiction is to be granted and made as aforesaid upon the express condition that this State shall retain a concurrent jurisdiction with the United States in and over the land or lands so to be transferred. and every portion thereof, so far that all process, civil or criminal, issuing under authority of this State, or any of the courts or judicial officer thereof, may be executed by the proper officer thereof, upon any person or persons amenable to the same, within the limits and extent of the land or lands so ceded, in like manner and to like effect as if this act had never passed, saving, however, to the United States security to their property within said limits or extent.

I further understand that the sheriff claims the right to serve the proc ess under the reservation of such right contained in the act of the General Assembly last quoted. The first question, therefore, involved in your request for an opinion is as to whether the act of March 2, 1874, applies to the case in question. It is true that the title of the act discloses a purpose to relinquish to the United States the "title to, and jurisdiction over, lands for sights for lighthouses, and for other purposes, on the coast and waters of this State." Were there nothing in the act to qualify the general language of the title, a military reservation which is situated on the coast in the State of Georgia might be considered as being within the expression "for other purposes." The preamble of the act, however, suggests that the purpose of the act was to cede title to land for the necessary safeguard of commerce. It recites that appropriations had been made "for the construction of a lighthouse and dumb beacon in the Savannah River, and the wants of commerce may hereafter call for the construction of others on the coast and waters of this State." This would seem to qualify the title of the act and restrict its application to the erection of lighthouses, beacons, or other similar buildings which are constructed for the benefit of commerce. It would not include a military reservation which is constructed for the coast defense. Moreover, passing the title and the preamble, the body of the act provides: "That whenever a tract of land, containing not more than five acres, shall be selected by an authorized officer or agent of the United States for the bona fide purpose of erecting thereon a lighthouse, beacon, or building connected therewith," etc.

The military reservation in question is in extent in excess of five acres and therefore could not have been ceded under the act of March 2, 1874. Moreover, it was not acquired by the Government for the purpose of erecting thereon a lighthouse, beacon, or building connected therewith. Its purposes are wholly different and belong to a different department of the Government.

Even the lighthouse reservation, which is within but not a part of the military reservation, was not ceded under the act of March 2, 1874, for the reason that it had been ceded under a prior act of December 15, 1791, and the Government at that time acquired its title to an exclusive jurisdiction over the six acres in question. Moreover, as the last-mentioned tract is more than five acres it can not fall within the act of March 2, 1874. It is, however, unnecessary to decide whether the attachment could be served within the six-acre tract which is used for the lighthouse, for I understand that the attachment which the sheriff seeks to serve was to be executed by the seizure of certain personal effects of the contractor who was then constructing a gun battery on a military reservation as distinguished from the lighthouse reservation. There can be no question in my mind that as to the military reservation the act of March 2, 1874, has no application.

The two hundred and ten acre tract, therefore, purchased for permanent seacoast defenses, must be regarded as having been ceded under the act of December 22, 1808, already quoted, by which the State of Georgia provides that "after the passing of this act, the Congress of the United States shall have and maintain jurisdiction in and over all the lands they have purchased or which have been ceded or otherwise acquired by them, or hereafter may be acquired, for the purpose of erecting forts or fortifications in this State," thus conferring exclusive jurisdiction as to the tract in question in the United States Government. There was no reservation of any right to serve either the criminal or civil process of the State. It is clear that without such reservation there can be no right in the State authorities to serve process in the tract in question, for it is an elementary principle of law that a judicial officer can not serve process beyond his jurisdiction. In this connection it is enough to call attention to the case of Fort Leavenworth Railroad Company v. Lowe, 114 United States, 525 et seq., where it is said: "When the title is acquired by purchase by consent of the legislatures of the States, the Federal jurisdiction is exclusive of all State authority. This follows from the declaration of the Constitution that Congress shall have 'like authority' over such places as it has over the district which is the seat of Government; that is, the power of 'exclusive legislation in all cases whatsoever.' Broader or clearer language could not be used to exclude all other authority than that of Congress, and that no other authority can be exercised over them has been the uniform opinion of Federal and State tribunals and of the Attorneys General."

Of course it is competent for the State in relinquishing its sovereignty and ceding it to the United States to reserve the right to serve civil and criminal process. But in this case no such reservation has been made by the State of Georgia, and the granting of power to the United States is absolute and exclusive of all State authority whatsoever. (United States

It is needless to suggest that the case is not unimportant, as the work of the Government, especially in the important and often urgent matter of national defense, would be seriously embarrassed if the necessary machinery of the contractors, who are engaged in the construction of such means of national defense, could be seized under the process of the State courts. As was said by Mr. Justice Field in the first case cited, "their exemption from State control is essential for the independence and sovereign authority of the United States within the sphere of their delegated powers."

No. 39.

ADJUTANT GENERAL'S OFFICE,

Washington, October 25, 1900.

By direction of the Secretary of War, the following decisions of the Comptroller of the Treasury are published to the Army for the information and guidance of all concerned:

TREASURY DEPARTMENT,

OFFICE OF COMPTROLLER OF THE TREASURY,

Washington, D. C., October 4, 1900.

The Honorable the SECRETARY OF WAR.

SIR: By your direction I have received a letter dated September 13, 1900, addressed to the Chief of Engineers by Captain Robert McGregor, with which the latter submits two vouchers, one for $10 for medical services rendered Walter Dow, a civilian employee, and the other for $26 for his burial expenses. You request my decision as to whether the same may be paid from the appropriation for "Improving Upper White River, Arkansas."

On the vouchers in question, Captain McGregor certifiesthat the above account is correct and just; that the services were rendered as stated and were necessary in the interests of the public service to preserve the health of the other employees engaged and quartered on the work; that the deceased had no estate so far as can be learned, except 35 salary due him at the time of his death, and no relatives or other legal representatives could be found to pay the bills.

Under date of September 24, 1900, Captain McGregor says

that Dow was quartered on the work, and that when his sickness was reported he was in a high fever, and was out of his head and in a semiunconscious state; that it became necessary to prevent possible infection that he should have medical attendance; and when three days later his sickness terminated fatally without his having regained consciousness, it was, for like reasons, necessary to dispose of the body.

It has been repeatedly held that in the absence of statutory law or specific contract no obligation rests on the United States to provide medical attendance to civil employees or for their burial expenses. The Government does not owe this duty to the employee, and the only ground upon which payment of such expenses can be justified or authorized is that the public necessities require it for sanitary reasons, and then only when that duty does not devolve upon the local authorities, or their services can not be obtained (see 2 Comp. Dec., 347; 6 id., 447). When such expenses are incurred and paid they must be confined to the bare necessities of the case, bearing in mind the customs of the country in caring for and burying the remains of paupers.

Assuming the facts stated by Captain McGregor to be correct--for the accuracy of which he is responsible-payment of the just and reasonable expenses in this case may be made from the appropriation above named. No opinion is expressed on the question of the reasonableness of the expenses.

The unpaid salary due this employee should be witheld as a proper offset against those expenses and a proper record made to prevent future payment of said unpaid salary.

Respectfully,

L. P. MITCHELL,