“in the United States”

EDITORIAL: The term “in the United States” as applied to work on national government public works is defined in the following case. The case establishes that:

1. That national government does not have general jurisdiction within a constitutional state.
2. When the national government contracts with private individuals, it acts in a private capacity but does not automatically surrender its sovereignty or sovereign immunity by entering into the contract.
3. It can still enact laws which regulate and control its OWN contracts, even within the exclusive jurisdiction of a constitutional state.
4. Those who contract with it are subject to the laws of Congress by virtue of the contract, even though they are not working within the exclusive jurisdiction of Congress at the time.
5. The term “in the United States” within the act therefore includes CONTRACTORS of the national government WHEREVER physically located or working, and is limited in its application only to the context of that contract.
6. This case is similar to the famous tax case Brushaber v. Union Pacific Railroad, 240 U.S. 1 (1916), in which case Frank Brushaber was subject to income taxation as a federal contractor by virtue of investing in a federal corporation, the Union Pacific Railroad. Stockholders of federal corporations are federal contractors. New Orleans Gas Co. v. Louisiana Light Co., 115 U.S. 650 (1885).

You will note that the indicted parties in this case technically were not working on land within the exclusive jurisdiction of the state. In that sense, “extraterritorial jurisdiction” was exercised. Instead, they were operating a dredge in the Boston Harbor, which technically is maritime jurisdiction reserved exclusively to the national and not state government. In that sense, the court admits that they were not “in the United States”. Note also that constitutional states in this case are referred to as lower case foreign “states” and not upper case. Thus, they are legislatively foreign with respect to the national government. We have not found a similar case that relates to working within the exclusive jurisdiction of the state an not within special maritime jurisdiction.

Both of the phrases to be construed admit a broad enough interpretation to cover these cases, but the question is whether that interpretation is reasonable, and, in a penal statute, fair. Certainly they may be read in a narrower sense with at least equal ease. The statute says, “laborers and mechanics . . . employed . . . upon any of the public works.” It does not say, and no one supposes it to mean, “any public work.” The words “upon” and “any of the,” and the plural “works” import that the objects of labor referred to have some kind of permanent existence and structural unity, and are severally capable of being regarded as complete wholes. The fact that the persons mentioned as employed upon them are laborers and 259*259 mechanics, words admitted not to include seamen, points in the direction of structures and away from the sea. The very great difficulty, if not impossibility, of dredging in the ocean, if such a law is to govern it, is a reason for giving the defendants the benefit of a doubt; and the fact that until last year the Government worked dredging crews more than eight hours is a practical construction not without its weight. A change seems to have been made simply for the sake of consistency between the different departments of the Government, as is stated in an order of the Secretary of War. A different conclusion is sought to be drawn from some appropriation acts, but they simply refer to the improvement of harbors in general terms among the public works for which appropriations are made. The improvement of a harbor may consist in the erection of structures as well as in the widening of a channel, or the explosion of a rock. It is unnecessary to lay special stress on the title to the soil in which the channels were dug, but it may be noticed that it was not in the United States. The language of the acts is “public works of the United States.” As the works are things upon which the labor is expended, the most natural meaning of “of the United States” is belonging to the United States.

[Ellis v. United States, 206 U.S. 246, 258-259 (1907); SOURCE: https://scholar.google.com/scholar_case?case=14609257976025296442]

Further, in this case, the contract that the contractor was working on itself is property. Under Article 4, Section 3, Clause 2 of the Constitution, Congress definitely has the power to regulate the use of its property anywhere it is found.

A similar and much earlier case like this one is:

United States v. Worral, 2 U.S. 384 (1798)
https://scholar.google.com/scholar_case?case=3339893669697439168

In Worral, someone bribed a federal officer on state land and was successfully prosecuted for criminal bribery, even though he was not within the exclusive jurisdiction of Congress.

In Milwaukee v. White, 296 U.S. 268 (1935), the U.S. Supreme Court identified the income tax as “quasi-contractual”, meaning FALSELY portrayed as contractual. Because they treat the income tax as a contract, this is how they can reach those who participate through the civil law extraterritorially.

Ellis and Worral are important because “persons” under the income tax at 26 U.S.C. §6671(b) (civil penalties) and 26 U.S.C. §7343 (crimes) are both defined as officers and employees of a corporation or a partnership, which corporation or partnership is FEDERAL and not state. Since corporations are a franchise and franchises are contracts, and since partnerships are also contracts, all those who are “persons” under the I.R.C. would therefore fall within the ambit of this case.

For activities within the exclusive jurisdiction of a constitutional state, the Supreme Court has addressed similar issues of PRIVATE contracting through cases involving the Commerce Clause and state sovereignty. One notable case is Gibbons v. Ogden, 22 U.S. 1 (1824), where the Supreme Court held that Congress could regulate intrastate activities if they were part of a larger interstate commercial scheme. This case established the broad interpretation of the Commerce Clause, allowing federal regulation of activities within states when they affect interstate commerce.

Another relevant case that applies to federal regulation of private activities is Wickard v. Filburn, 311 U.S. 111 (1942), where the Court ruled that even personal cultivation of wheat intended for private consumption could be regulated by Congress because it had a substantial effect on interstate commerce. These cases illustrate the Supreme Court’s approach to balancing federal authority and state sovereignty, particularly in regulating activities within constitutional states.

But when public works, public contracts, and public property are not involved, any regulation is unconstitutional as held by United States v. Lopez, 514 U.S. 549 (1995).

Federal jurisdiction if further described in 40 U.S.C. 3111 and 3112

Federal property within the states is addressed by the Federal Property and Administrative Service Act of 1949 available at:

https://uscode.house.gov/view.xhtml?path=/prelim@title40/subtitle1&edition=prelim

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These are an indictment and informations under the Act of August 1, 1892, c. 352, 27 Stat. 340, “Relating to the Limitation of the Hours of Daily Service of Laborers and Mechanics Employed upon the Public Works of the United States and of the District of Columbia.” They all bring up the question of the constitutionality of the act, and they severally present some subordinate matters, which will be considered under the respective cases.

The act limits the service and employment of all laborers and mechanics employed by the United States, by the District 255*255 of Columbia, or by any contractor or subcontractor upon any of the public works of the United States or the District, to eight hours in any one calendar day, and makes it unlawful “to require or permit any such laborer or mechanic to work more than eight hours in any calendar day except in case of extraordinary emergency.” By § 2 “any officer or agent of the Government of the United States or of the District of Columbia, or any contractor or subcontractor whose duty it shall be to employ, direct, or control any laborer or mechanic employed upon any of the public works of the United States or of the District of Columbia who shall intentionally violate any provision of this act, shall be deemed guilty of a misdemeanor, and for each and every such offense shall upon conviction be punished by a fine not to exceed one thousand dollars or by imprisonment for not more than six months, or by both such fine and imprisonment, in the discretion of the court having jurisdiction thereof.” The plaintiffs in error were contractors within the scope of the act, were found guilty and were fined. They all requested rulings that the act was unconstitutional, excepted to the refusal so to rule, and on that ground brought their cases to this court.

The contention that the act is unconstitutional is not frivolous, since it may be argued that there are relevant distinctions between the power of the United States and that of a State. But the arguments naturally urged against such a statute apply equally for the most part to the two jurisdictions, and are answered, so far as a State is concerned, by Atkin v. Kansas, 191 U.S. 207. In that case a contractor for work upon a municipal boulevard was sentenced to a fine under a similar law of Kansas, and the statute was upheld. We see no reason to deny to the United States the power thus established for the States. Like the States, it may sanction the requirements made of contractors employed upon its public works by penalties in case those requirements are not fulfilled. It would be a strong thing to say that a legislature that had power to forbid or to authorize and enforce a contract had not also the power to 256*256 make a breach of it criminal, but however that may be, Congress, as incident to its power to authorize and enforce contracts for public works, may require that they shall be carried out only in a way consistent with its views of public policy, and may punish a departure from that way. It is true that it has not the general power of legislation possessed by the legislatures of the States, and it may be true that the object of this law is of a kind not subject to its general control. But the power that it has over the mode in which contracts with the United States shall be performed cannot be limited by a speculation as to motives. If the motive be conceded, however, the fact that Congress has not general control over the conditions of labor does not make unconstitutional a law otherwise valid, because the purpose of the law is to secure to it certain advantages, so far as the law goes.

One other argument is put forward, but it hardly needs an answer. A ruling was asked in Ellis’s case, and is attempted to be sustained, to the effect that the Government waived its sovereignty by making a contract, and that even if the Act of 1892 were read into the contract, a breach of its requirements would be only a breach of contract and could not be made a crime. This is a mere confusion of ideas. The Government purely as contractor, in the absence of special laws, may stand like a private person, but by making a contract it does not give up its power to make a law, and it may make a law like the present for the reasons that we have stated. We are of opinion that the act is not contrary to the Constitution of the United States.

[Ellis v. United States, 206 U.S. 246, 254-256 (1907); SOURCE: https://scholar.google.com/scholar_case?case=14609257976025296442]