United States v. McGee

• Decision Date: 24 May 1977
• Docket Number: Civ. No. C-3-77-136.
• Citation: 432 F. Supp. 557
• Parties: UNITED STATES of America, Plaintiff, v. James H. McGEE et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

432 F. Supp. 557

UNITED STATES of America, Plaintiff, v. James H. McGEE et al., Defendants.

Civ. No. C-3-77-136.

United States District Court, S. D. Ohio, W. D.

May 24, 1977.

Robert A. Steinberg, Asst. U. S. Atty., Dayton, Ohio, for plaintiff.

Robert E. Albright, Columbus, Ohio, James W. Drake, Dayton, Ohio, for defendants.

FINDINGS OF FACT, OPINION, AND CONCLUSIONS OF LAW

CARL B. RUBIN, District Judge.

This matter is before the Court pursuant to plaintiff's prayer for an injunction restraining the defendant City of Dayton, the Commissioners of the City of Dayton, the Dayton City Law Director, and all officers, agents, employees, and servants thereof from implementing annexation or exercising any municipal powers over the land occupied by the United States Air Force and known as the Wright-Patterson Air Force Base. A temporary restraining order without notice was issued on May 9, 1977 with a date of hearing set for May 16, 1977. At such hearing counsel for the United States and counsel for the defendants appeared and presented argument to the Court.

On May 16, 1977 this Court did extend the temporary restraining order until Wednesday, May 25, 1977 at midnight.

Rule 65(b) of the Federal Rules of Civil Procedure requires the Court to give reasons for the granting of a restraining order without notice and reasons for the extension thereof.

From May 10, 1977 through May 13, 1977 all district judges in the Sixth Circuit were required to attend a judicial conference of the Sixth Circuit at Louisville, Kentucky. 28 U.S.C. § 333 imposes a mandatory duty of attendance unless excused by the Chief Judge of the Circuit. At the first available court date thereafter this matter was heard and the aforesaid opportunity for argument given. The temporary restraining order has been extended in order that this Court may set forth in detail its reasons for the action it proposes to take.

In the belief that the plaintiff is entitled to a preliminary injunction and the defendants are entitled to a hearing thereon, the Court does submit Findings of Fact and Conclusions of Law. Counsel may request and will receive an opportunity to present evidence on the accuracy of such findings. Should counsel by agreement forego further hearing, the Court will adopt these findings and conclusions as the basis for a permanent injunction.

I FINDINGS OF FACT

1. Wright-Patterson Air Force Base is located in southwestern Ohio in Mad River and Wayne Townships, Montgomery County, Ohio, and in Bath and Beavercreek Townships in Greene County, Ohio. The base contains approximately 8,146 acres of land. It employs in excess of 24,000 military and civilian personnel. In addition to its function of contributing to the general defense of the United States it serves as the base for the Air Force Wright Aeronautical Laboratories, composed of the Air Force Avionics Laboratory, the Air Force Aeropropulsion Laboratory, the Air Force Flight Dynamics Laboratory, and the Air Force Materials Laboratory. These laboratories are intended to perform research and development in the expansion of technology for weapons systems.

The Aeronautical Systems Division manages planning, research, development, testing, contracting and acquisition of all aeronautical weapons used by the Air Force. The base is likewise the headquarters for the Air Force Logistical Command, charged with the obligation of repairing, remodeling and supplying all things necessary to keep the weapons systems of the Air Force in an appropriate state of readiness. The Air Force Logistics Command employs in excess of 90,000 civilians in various locations throughout the world.

The Foreign Technology Division is likewise assigned to Wright-Patterson Air Force Base. It acquires, analyzes, produces and disseminates scientific and technical intelligence information on foreign aerospace weapons systems.

The Air Force Institute of Technology, located at Wright-Patterson Air Force Base is responsible for university level professional education in support of the development and management of the Air Force and approximately 400 military officers are presently pursuing masters degrees programs at its school.

2. The City of Dayton, Ohio is a municipal corporation operating in accordance with the provisions of Title 7 of the Ohio Revised Code. Article XVIII of the Constitution of Ohio grants authority to municipalities and specifically provides in paragraph 3 as follows:

Municipalities shall have authority to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary or other similar regulations as are not in conflict with general laws.

3. Wright-Patterson Air Force Base has been the subject of other attempts at annexation. During 1976 the City of Dayton, the City of Fairborn, and the Township of Beavercreek have each attempted to annex all or a part of the Wright-Patterson Air Force Base.¹

4. On or about May 5, 1977, the legislative authority of the City of Dayton, Ohio approved a petition seeking to annex Wright-Patterson Air Force Base to the City of Dayton. Although Ohio Revised Code § 709.01 became effective October 1, 1976,² neither the Secretary of Defense, nor any other person provided in such statute, gave approval for the annexation petition.³

II

OPINION

We approach the question of annexation of a military installation by a municipal corporation without the benefit of controlling precedent. The Court has been cited to United States of America v. City of Bellevue, Nebraska, 474 F.2d 473 (8th Cir. 1973), where the annexation of Offutt Air Base by a municipality was enjoined and to Howard v. Commissioners of the Sinking Fund of the City of Louisville, 344 U.S. 624, 73 S.Ct. 465, 97 L.Ed. 617, where the annexation of a Naval Ordnance Plant was not.

In the Bellevue case the United States Court of Appeals for the Eighth Circuit found that the City of Bellevue sought annexation in order to increase its population and thereby receive a larger share of state tax receipts distributed to municipalities on a per capita basis. This, the Court held, was contrary to Nebraska law. While this Court takes judicial notice of a municipal income tax in the City of Dayton and that in 1974 the Congress of the United States authorized withholding from federal employees' salaries for the payment of municipal income tax (5 U.S.C. § 5520), this case should not be decided on the basis of motive by the City of Dayton.

In the same fashion, Howard v. Commissioners is not totally applicable since in that case the annexation was not challenged by the United States. There is dicta in each case that bears upon the situation herein, but issues far more fundamental than the annexation of a plant or a greater slice of state tax receipts should control its disposition.

A military base is unlike any other federal installation other than another military base. Ingress and egress may be restricted; city ordinances regarding discharge of firearms, storage of combustible and explosive materials, and supremacy of civilian police may be routinely violated; zoning restrictions, occupancy standards, and maintenance of streets, sewers, and dwelling structures may not conform to those of any municipality.

The mere existence of a military air base adjacent to the City of Dayton may subject the inhabitants thereof to excessive dangers. In the event of war the base would be a target for enemy action and retaliatory strikes might devastate the entire area. It is not suggested that these are likely occurrences. It is suggested that this points up the essential and unique quality of any military installation. The power to maintain such an installation is constitutional in nature⁴ and above and beyond the power of any municipal corporation to change.

This basic principle was well stated in Stewart v. Sadrakula, 309 U.S. 94 at 103-104, 60 S.Ct. 431 at 436, 84 L.Ed. 596 (1940) as follows:

The authority of state laws or their administration may not interfere with the carrying out of a national purpose. Where enforcement of the state law would handicap efforts to carry out the plans of the United States, the state enactment must, of course, give way.

The Court does not doubt that the City of Dayton would willingly agree at this time to noninterference with the function of the Air Force base. But what one board of city commissioners can agree to, another board of city commissioners can reverse. It is this aspect of annexation that it is most troubling. Whether or not the city could enforce its municipal ordinances is of far less significance than the time, effort, and resources it might require for the appropriate administrative and legal officers of the United States Air Force to resist an effort to do so. Justice Minton in delivering the opinion of the Supreme Court of the United States in Howard v. Commissioners, supra, made the following observation 344 U.S. at page 627, 73 S.Ct. at page 467:

The fiction of a state within a state can have no validity to prevent the state from exercising its power over the federal area within its boundaries so long as there is no interference with the jurisdiction asserted by the federal government. The sovereign rights in this dual relationship are not antagonistic. Accommodation and cooperation are their aim. It is friction and not fiction to which we must give heed. (emphasis added)

While it is dictum only, the observation of the United States Court of Appeals for the Eighth Circuit in the Bellevue case bears repetition:

In view of the nature of the property here sought to be annexed, being the headquarters of the Strategic Air Command, the Court district court felt a `potential for friction' with the City of Bellevue pressing upon the court, indeed that the interests of the United States in its national security outweighed any interests of the City of Bellevue in acquiring the property . . . In view of the abundance of litigation as to

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