DeKalb County, Georgia v. Henry C. Beck Company, No. 23256.

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: BROWN, , TUTTLE and GODBOLD, Circuit
• Citation: 382 F.2d 992
• Parties: DeKALB COUNTY, GEORGIA, Appellant, v. HENRY C. BECK COMPANY, Appellee.
• Decision Date: 15 September 1967
• Docket Number: No. 23256.

382 F.2d 992 (1967)

DeKALB COUNTY, GEORGIA, Appellant,
v.
HENRY C. BECK COMPANY, Appellee.

No. 23256.

United States Court of Appeals Fifth Circuit.

September 15, 1967.

382 F.2d 993

George P. Dillard, Decatur, Ga., Herbert O. Edwards, Robert E. Mozley, Asst. DeKalb County Attys., for appellant.

George B. Haley, Jr., Wilbur Branch King, Atlanta, Ga., for appellee; Kilpatrick, Cody, Rogers, McClatchey & Regenstein, Atlanta, Ga., of counsel.

Before BROWN, Chief Judge, TUTTLE and GODBOLD, Circuit Judges.

382 F.2d 994

GODBOLD, Circuit Judge:

This case concerns the power of DeKalb County, Georgia, to assess and collect what is termed a building permit fee from a contractor engaged in construction of a building for the United States on land located within DeKalb County and owned by the United States.

Appellee, the contractor, entered into a contract with the Veterans Administration for construction of a government hospital in DeKalb County at a cost of thirteen million dollars. The construction site was on land acquired by the United States in 1962 by warranty deed from Emory University. The contract placed on appellee responsibility for obtaining necessary permits and licenses and for complying with applicable federal, state and municipal laws, codes and regulations.¹

The county sought to collect from appellee a permit fee under § 4-21 of the DeKalb County Code.² Appellee declined to pay, the county sued in state court, appellee removed. The case was submitted on motion of appellee for summary judgment and stipulated facts. It was stipulated that if the county is entitled to recover it is under § 4-21. The motion was granted without reasons assigned. The county appeals.

The first inquiry is whether the United States has assumed such jurisdiction over the land of the construction site as to exclude the power of the state (and the county as its delegate) to assess and collect the permit fee.

Congress has power to exercise jurisdiction over federal enclaves under Art. I, § 8, cl. 17, of the Constitution.³ The federal government may, without the consent of the state, acquire land within a state by condemnation or purchase. Paul v. United States, 371 U.S. 245, 83 S.Ct. 426, 9 L.Ed.2d 292 (1963). But without state consent the United States does not obtain the benefits of Art. I, § 8, cl. 17, and its possession is that of an ordinary proprietor. By § 15-301 of the Code of Georgia of 1933 the State of Georgia has given consent to federal acquisition of sites for "needful buildings."⁴ Sec. 15-302, as amended,⁵

382 F.2d 995

expressly cedes jurisdiction to the United States over lands so acquired except that the State retains civil and criminal jurisdiction under certain circumstances and jurisdiction over regulation of public utilities. Sec. 15-303 provides, "The jurisdiction hereby ceded shall not vest until the United States shall have acquired the title to the said lands by purchase, condemnation or otherwise * * *."

In 1940 Congress enacted what is now the eighth paragraph of 40 U.S.C.A. § 255.⁶

In this case the United States has taken no affirmative action to accept jurisdiction over the land. It has done no more than take title by deed. The appellee seeks to convince us that the language of § 255, "by filing a notice of such acceptance with the Governor of such State or in such other manner as may be prescribed by the laws of the State where such lands are situated," read together with Secs. 15-301 through 15-303 of the Georgia Code, operated to vest in the United States exclusive jurisdiction forthwith upon its acquisition of title.

Whether the United States has acquired exclusive jurisdiction over a federal enclave is a federal question. Paul v. United States, supra. Adams v. United States, 319 U.S. 312, 63 S.Ct. 1122, 87 L.Ed. 1421 (1943), held that absent the giving of notice now required by § 255 the federal government cannot have either partial or exclusive jurisdiction over land acquired subsequent to the enactment of the notice provision. That case discusses the policies and the history behind the addition of the notice requirement to § 255. The language "or in such other manner as may be prescribed by the laws of the State" does not relate to the decision of the United States whether it shall or shall not acquire jurisdiction, but to the mode by which acceptance is indicated once the appropriate officer has deemed it desirable to acquire jurisdiction.

A state may condition its consent to federal acquisition upon state retention of jurisdiction over the land consistent with the federal use. Paul v. United States, supra. But this case does not involve that principle, nor is this case a matter of the State's undertaking to condition its consent to federal acquisition upon acceptance by the United States of all jurisdiction that the State does not expressly retain. Sec. 15-302 is a partial cession of jurisdiction. Sec. 15-303 describes time of vesting. Neither purports to condition State consent upon federal acceptance.

382 F.2d 996

We hold that the United States had not accepted jurisdiction.⁷ Having reached this conclusion it is unnecessary for us to discuss the contentions that Secs. 15-301, 15-302 and 15-303 are void as in violation of the Georgia Constitution.⁸

We now turn to consideration of the supremacy clause in a situation where there has been no acceptance of federal jurisdiction. Application of the supremacy clause of the Constitution, Art. VI, cl. 2, requires determination of, and balancing of, state and local action against federal policy. In Leslie Miller, Inc. v. State of Arkansas, 352 U.S. 187, 77 S.Ct. 257, 1 L.Ed.2d 231 (1956), it was held that the State could not require a contractor on federal work to obtain a license from the contractors' licensing board because the requirements of the board relating to competency, character, financial responsibility, prior defaults, willingness to preserve public health and safety, and like factors, conflicted with federal requirements established to secure the reliability of the contractor and frustrated the expressed federal policy of selecting the...