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GAMBLERS MAY GET ALEXANDRIA FOR US – The Washington Times, October 16, 1905
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The only Supreme Court ruling on the constitutionality of the retrocession of Alexandria was in Phillips v. Payne. This the first I’ve transcribed that includes R. A. Phillips.


GAMBLERS MAY GET ALEXANDRIA FOR US


Argue That County Belongs to the District


FAMOUS QUESTION REVIVED


Federal Court Will Decide Whether Congress Legally Returned the County to Virginia


Interest in whether Alexandria county is part of the State of Virginia or of the District of Columbia has been revived through the prosecution of poolrooms in Virginia.

The cases are now before Judge Waddill, judge of the United States court of the eastern district of Virginia. His decision tomorrow may mean the opening of this celebrated question.

Ten years ago the jurisdiction of Alexandria county was questioned. The case was taken before the United States Supreme Court by R. A. Phillips, a well-known capitalist and real estate owner of Alexandria county, with offices in Washington.

The court decided that the issue was one wholly between the United States and the State of Virginia and that a private citizen was not qualified to bring it up for disposition.

Since that decision, which failed to settle the status of the county, the case has been at a standstill and is so now. There are residents of Alexandria county who now are inclined to believe that with the agitation attending the poolroom cases the retrocession of the county will again come up for serious discussion.

Return of County

In the proclamation of President Washington, Alexandria county was part of the “ten mile square” allotted as the seat of the Federal Government. In 1846, Congress voted to retrocede to Virginia “that portion of the ten mile square south of the Potomac.”

It has been contented by eminent lawyers that if Congress has that power in 1846, it has that power today to retrocede to Maryland that portion which is known as the District of Columbia. They argue further that it then has the power to change the seat of Government to Bladensburg, Jackson City, of even to Hawaii.

It is not understood that Congress ever had the power to cede away any part of the “ten mile square” defined as the limits of the District of Columbia in President Washington’s proclamation.

The activity of Mr. Phillips and other is ascribed to the lax methods which now obtain in the government of the county and the benefits to be derived from its restoration to the District.

Would Benefit Town.

The county would have the benefit of the good-roads law, the revenues from Government property, such as Arlington, the three Government bridges, and other property would revert to the District and citizens of what is now Alexandria county would have the protection of a police system and the benefits of sanitary laws which are not now in force in the county.

L. E. Phillips, the Washington attorney, a son of R. A. Phillips, said yesterday that there is practically no sanitation in the county, the police facilities are poor, and that the methods of governing the county are much in line for improvement. Should the court decide that Alexandria county is legally within the District line it would mean practically a general revision of affairs there, and one which would not only mean benefits to the people of the county, but to the county itself, and to the District of Columbia.

New Phase Brought Up.

A letter from Mr. Phillips father to Attorney John A. Lamb, counsel for the two poolroom men who now under arrest, is interesting in that it presents a phase of the matter which has not been brought prominently before the public.

The letter reads as follows:


“It is a pleasure to me to observe that you assert in a case before Judge Waddill, of the United States district court, that Alexandria county is a part of the District of Columbia, and that the act of retrocession was wholly ultra vires.

“In my opinion Congress has less right to relinquish or transfer its exclusive jurisdiction over part of the seat of Federal Government than it would have to cede away or relinquish its legislative power over postoffices and postroads.

“Of course, we all know the Constitution has become a mere political football in these modern days. We find our Federal Government in canal-digging business in foreign territory, and in the missionary business in Asiatic islands, and it is refreshing to observe occasionally a recurrence to safe principles of jurisdiction and Federal authority.

“Section 8, paragraph 17, provides for the establishment and jurisdiction of the District, and a few lines later, Section 9, paragraph 2, puts a guarantee about one good old writ- ‘The privilege of the writ of habeas corpus’ shall not be suspended. It is a striking coincidence that the provision of the Constitution violated dismembering the seat of government and the appropriate procedure for the determination of such infractions of the fundamental law are in close proximity. When, in the course of events, it may appear necessary to dismember the seat of government or remove it permanently to a new location, such a proposal must first be submitted to all the States; and with the approval of three-fourths it will become lawful.

“As for the individual citizens respecting whose rights or liberty the writ of habeas corpus is brought in this particular case. I have no interest. It is an ill wind that blows no one good, and so even the rights and liberties of an unfortunate gambler may correct the grevious error of dismembering our seat of government. It was established by our Revolutionary ancestors. I trust Judge Waddill will do his part as a judge and a patriot to restore it.

“If appealed to the Supreme Court of the United States, that august body may meet the question fully and say that under the high privilege of this particular writ, the court is bound to decide whether the District was dismembered lawfully.

“As for inconvenience that will arise respecting titles and acts of de facto government since 1847, changes of governmental control are frequent respecting territories, counties and cities and nobody has has ever been seriously hurt by them.

“R. A. PHILIPS.”


This newspaper article was transcribed from a scan of the original newspaper article on Chronicling America. It is being republished here in order to continue my advocacy for full representation for the American citizens of the District of Columbia.



EARLY SECESSION DAYS – The Washington Times, August 12, 1900
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EARLY SECESSION DAYS - The Washington Times, August 12, 1900


The Sentiment Had No Bearing on the National Union.


Efforts of Alexandria and Georgetown to Be Release From Their Association With the City of Washington- Appeals to the Maryland and Virginia Legislatures.


The exclusive jurisdiction of the United States was extended over the District of Columbia on the 27th of February, 1801, and almost immediately plans were proposed for a change in the District bounds, or for its entire abolition. The act of March 3, 1791, which provided that nothing therein should authorize the erection of public buildings on the Virginia side of the river had created dissatisfaction there before the United States took control, and at the third session which Congress held in Washington Mr. Bacon, of New York [actually Massachusetts], introduced a bill to cede back to Maryland and Virginia the land and jurisdiction which made the District of Columbia. On the 9th of February, 1803, the vote was taken on this proposal, and it was found to have only twenty-two supporters in the House of Representatives. In 1804 the attempt to disestablish the District of Columbia was again made by Mr. Bacon [actually it was made by John Dawson, of Virginia]. This time his proposal to re-cede to Maryland and Virginia all the territory except the city of Washington. These attempts seem, from the records, to have been abandoned after 1806 for many years. On both these occasions Mr. G. W. P. Custis of Arlington was an active opponent of retrocession.

However, talk on the subject did not cease. It was claimed on the one hand that the constitution of Maryland had been violated by the cession without a vote upon the act having been taken at two successive sessions of the Maryland Legislature. In Virginia some talkers alleged that the prohibition on the Virginia side of the river was a violation of the terms of cession, and made it void. Mr. Bacon and those of his opinion asserted that Congress was authorized to be “the seat of government,” and that, inasmuch as Georgetown, Alexandria, and the other territory outside the city of Washington were not the seat of government, the retention of that territory was unconstitutional.

In 1818 another proposal for the disintegration of the District of Columbia came to the front, and a town meeting in Alexandria was called by the mayor. Dr. E. C. Dick presided and Jacob Hoffman was secretary. At this meeting a protest against retrocession was adopted. It was not, however, until 1834 that a general movement outside of Washington was made for retrocession. It had been proposed in Congress to establish a Legislature for the District of Columbia. The two little cities, Georgetown and Alexandria, feared the overwhelming influence of the continually growing city of Washington, which might deprive them of the home rule which existed in their municipalities. Georgetown this time took the lead, and made a strong appeal to the State of Maryland for help, while Alexandria made an appeal to the Congressional delegation from Virginia.

In the House of Representatives, on the 19th of February [1838], Mr. Wise of Virginia introduced a resolution that the committee on the District of Columbia be instructed to inquire into the expediency of receding, under proper restrictions and reservations, and with the consent of the people this District and the States of Maryland and Virginia, the said District to the said States.

In Georgetown a series of popular movements in favor of a return to Maryland were initiated, and, after some preliminary proceedings, a mass meeting of the voters of Georgetown was called. The meeting was held on the 12th of February at the North Lancasterian school room, and the “Potomac Advocate” states that it was “one of the largest and most respectable ever held within our town.” Mr. John Kuntz occupied the chair and Thomas Turner was the secretary. Mr. S. McKenney introduced a resolution that “without reference to the political advantages to accrue to that portion of the county of Washington which lies west of Rock Creek, including Georgetown, from a retrocession thereof to Maryland, provided that it can be effected on such terms as shall secure from Congress the reimbursement from Congress of the debt created in the improvement of the harbor and the construction of the Chesapeake and Ohio Canal, will, in the opinion of the his meeting, promote the pecuniary interests and general prosperity of the citizens.” The meeting requested the mayor to order a vote of the citizens of the territory affected on the 14th of February, and if such vote was favorable to retrocession to unite with the common council of Georgetown in bringing the subject before the Maryland Legislature.

The Georgetown committee went to Annapolis to seek help from the Legislature of Maryland, and action on the subject was begun in April, just before the time fixed for adjournment. A committee reported a series of resolutions on the subject, the most important being this one:

“Resolved, That the General Assembly of Maryland do assent to the recession of Georgetown and that portion of the county of Washington, in the District of Columbia, lying west of Rock Creek formerly included within the limits of Montgomery County; provided the Congress of the United States do agree to yield its exclusive jurisdiction over the same; and in such event the said territory shall thereupon be held and deemed a portion of the domain of Maryland, and that the citizens thereof be entitled to all the immunities and privileges of citizens of the State, and the corporate powers which may have been granted by the Congress of the United States.”

On that occasion Mr. Cottman, of Somerset, submitted an additional resolution, as follows:

“And whereas the Constitution of the United States has provided that Congress shall have power to exercise exclusive legislation in all cases over such district as may by the cession of particular States and the acceptance of Congress become the seat of the United States; and

“Whereas the territory north of the Potomac, a portion of the domain of Maryland, has been apparently and ostensibly ceded to the United States by an act of the Legislature of Maryland which was not ratified and confirmed by a succeeding Legislature, and this ostensible cession of the domain being such a modification of the Constitution as requires the action of two successive Legislatures in the mode provided by the constitution of Maryland; therefore

“Resolved, That the territory aforesaid was not ceded in conformity with the constitution of this State, and now is, and of right ought to be, part of the territory of Maryland.”

The Legislature of Maryland, however, adjourned too soon for final action on the subject, and the recession of Georgetown never again assumed formidable proportions.

The assistance given by Congress in securing the release of the Holland loan when it was said that the District cities “were sold to the Dutch” quieted for a while the popular unrest at the “want of a vote” that long galled the young men of the District; but the entente cordiale between the District cities was at an end forever when the corporation of Georgetown passed resolutions protesting against Congress giving aid in the construction of the Aqueduct and the Alexandria Canal, which continued to Alexandria the Chesapeake and Ohio Canal. And although Congress gave Alexandria $300,000 for that work, yet the desire to be with Virginia was not allayed, and when a Democratic Congress refused to re-charter the Alexandria banks the moneyed interests fell in with and even led the people, and then began an agitation which finally severed the District which Washington had made. Then, too, the Van Buren Administration was Democratic, or “loco-foco,” as was the Alexandrian term, and the town of Alexandria was intensely Whig. The Harrison banner of 1840 bore on its reverse the picture of the “Sic semper” woman bending over a shackled maiden in tears, and the legend read: “Our Revolutionary fathers intended us to be free. Sons of Virginia, will you see us slaves?”

At first as the retrocession was so vehemently championed by the Whigs, the “loco-focos” opposed it. The partisans of Van Buren were few in town, but very numerous in the county, and during Tyler’s Administration the Democratic leaders began to see that if Alexandria was turned over to Democratic Virginia it would give the Democrats a more extensive influence; and so, when Polk came in, the Congress which completed the annexation of Texas divided the District of Columbia, and Congress passed a law, which President Polk approved, declaring that “all that portion of the District of Columbia ceded to the United States by Virginia, and all right and jurisdiction, be hereby ceded and forever relinquished to the State of Virginia, in full and absolute right and jurisdiction, as well of soil as of persons residing or to reside therein.” So by this act of July 9, 1846, the District of Columbia, which came into being February 27, 1801, ceased to exist south of the river Potomac.


This newspaper article was transcribed from a scan of the original newspaper article on Chronicling America. It is being republished here in order to continue my advocacy for full representation for the American citizens of the District of Columbia.



THE STATE OF COLUMBIA by Frank Sprigg Perry – Georgetown Law Journal, Vol 9, No. 3, April, 1921, p. 13-27
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This article was originally published in the Georgetown Law Journal and outlines the case that the District of Columbia can be made into a state without a constitutional amendment. I find it interesting that nearly 60 years later residents of the District of Columbia chose to add “New” to the name of their future state.

Map originally published in the Washington Herald on 1/18/1910

THE STATE OF COLUMBIA

Can A State Be Erected Out Of The District Of Columbia Without A Constitutional Amendment?

Frank Sprigg Perry
Associate Justice of Constitutional Laws
Georgetown Law Journal, Vol 9, No. 3, April, 1921, p. 13-27

In the great tide of Statehood which has flowed westward over continental United States there has been left on the Atlantic seaboard a small area which may be called a “back water” of American political life. From Canada to Mexico and from the Atlantic Ocean to the Pacific, all are sovereign States with the single exception of the District of Columbia. The City of Washington bears the proud title of the Capital of the greatest Democracy on earth. And yet how hollow is the sound of political liberty to the disfranchised inhabitants living in the very shadow of the dome of the Capitol!

This article will discuss the power of Congress without a Constitutional Amendment to erect a State out of the District of Colombia—THE STATE OF COLUMBIA.

The permanent seat of the Federal Government was authorized by Article I, Section 8, Clause 17 of the Constitution;

“Congress shall have power:

17. To exercise exclusive legislation in all cases whatsoever, over such district (not exceeding ten miles square) as may, by cession of particular States and the acceptance of Congress, become the seat of the government of the United States, and to exercise like authority over all places purchased by the consent of the legislature of the State in which the same shall be, for the erection of forts, magazines, arsenals, dock-yards, and other needful buildings.”

The land for this purpose was ceded by the States of Maryland and Virginia and the District of Columbia became vested in the United States for this purpose in December, 1800. The land ceded by the State of Virginia comprised the county of Alexandria and was retroceded to that State by an Act of Congress of July 9, 1846. (9 Stats. 35, 1000) The political organization of the District of Columbia embraces the City of Washington and covers at the present time the land ceded by the State of Maryland.

The people of the District of Columbia are totally disfranchised. The government is in the hands of Congress which acts as a national as well as a local legislature. A Board of Commissioners appointed by the President is the executive head. The people have no representative or delegate in the Senate or House of Representatives, nor can they vote for the President or Vice-President of the United States, nor have they a voice or vote in the selection of their Board of Commissioners.

The District of Columbia has a population of 437,571 by the census of 1920, a number in excess of each of the seven States of Vermont, Idaho, New Mexico, Wyoming, Arizona, Delaware, and Nevada, and it possesses all of the other qualifications of Statehood. It is conceded that a Constitutional Amendment could give Statehood or any modified form of government to the District. On the other hand, it has been questioned whether Congress can by a legislative act and without such amendment create the State of Columbia, even with the consent of the State of Maryland. An amendment to the Constitution would require a two-thirds vote of both houses of Congress and a subsequent ratification by the legislatures of three-fourths of the States. An act of Congress creating a State government would require a majority vote of both Houses of Congress and the signature of the President.

REASON FOR EXCLUSIVE AUTHORITY

There were several reasons which induced the framers of the Constitution to provide for the power in Congress to exercise exclusive legislation over the seat of the Federal Government. During the Revolutionary period the Federal authority was feeble and, as there was no standing army, the Continental Congress had been forced to depend for protection upon the militia of certain of the States. On June 21, 1783, some armed and mutinous soldiers appeared before Congress in Philadelphia, Pennsylvania, and insultingly demanded their overdue pay. The authorities of the state were appealed to but they made no sufficient attempt to afford protection. Congress moved its seat to Princeton, New Jersey, a few days after this incident occurred. In addition to the necessity for protection, the “Federalist,” No. 38, also urged in support of this clause, that the establishment of this federal district would free Congress from any imputation of awe or undue influence on the part of the State authorities. (Fort Leavenworth Railroad v. Lowe, 114 U.S. 529)

Needless to say, neither of these reasons has any force at the present time. The Federal government has grown sufficiently strong to protect its property wherever located. There can be no imputation of awe or undue influence on the part of a State today, as the United States through the concentration of federal powers in Congress and in the Executive branches of the government has reached a position of almost supreme authority. The transfer of jurisdiction to the State of Columbia would not prevent the Federal Government from protecting its property, nor could the State of Columbia of such limited area exercise a predominant influence over the affairs of the Nation by reason of its locality.

In Revolutionary days the danger was that the Federal authority would be too weak to coordinate and control the necessary functions of national life. The danger today is that this Federal authority has become so powerful that it threatens to smother the separate existence of the several States. In Story’s Constitutional Law, Section 1220, reference is made to a criticism urged in 1803 against the exclusive control by Congress over the District of Columbia as tending to foster an oligarchy and diffuse important changes through our democratic government. The growth of the Federal authority may be attributed in no small degree to its separate and independent existence in the District of Columbia. The creation of the State of Columbia would check further Federal growth along these lines and would add another Commonwealth to jealously guard State life.

POWER TO CREATE NEW STATES

The admission of new states into the Union is provided by Article IV, Section 3, Clause 1, of the Constitution:

“l. New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the jurisdiction of any other State; nor any State be formed by the junction of two or more States, or parts of States, without the consent of the legislatures of the States concerned as well as of the Congress.”

No limitations are placed upon the powers of Congress to admit new States except as provided in this clause. No other clause of the Constitution limits those powers. Nowhere is it stated that Congress can admit a new State only after it has fulfilled certain requirements. Nowhere is it stated that Congress can admit only States to be carved out of the then existing “Northwest Territory.” New States can be carved out of any territory or other property over which the United States exercises jurisdiction or control. An independent nation can be admitted in the Union as a new State by an Act of Congress alone, as was done in the case of Texas. (Acts of March 1, and December 29, 1845, 5 Stats. 797, 9 Stats. 108.)

There is no clause in the Constitution which expressly authorizes Congress to erect a State out of the land upon which the Federal city is located. There is, however, no clause which prohibits Congress from erecting the State of Columbia out of this area.

It may be considered that the grant of jurisdiction over the District is so absolute and unconditional as to empower Congress to erect out of the District any form of government, even a State government. The insertion of qualifying words in this sweeping clause would destroy the power of exclusive legislation.

It has been held by some that Congress is invested with a peculiar and high authority over the District and that this power is inalienable. This argument was unsuccessfully used before Congress in opposition to the retrocession of Alexandria County to the State of Virginia. If this authority is inalienable, no State can be erected out of the District without an amendment to the Constitution. If, however, Congress exercises political powers over the District similar to those which it exercises over the territory or other property of the United States, then a legislative act can create the State of Columbia.

THE CONSTRUCTION OF THE PARTIES

The construction which the parties place upon a contract by their acts and deeds at the time that they entered into it, is always considered of vital force in determining the meaning of the contract. The territory of the District was ceded to the United States by the States of Maryland and Virginia in accordance with the terms of the Constitution and contemporaneously with its adoption.

The State of Maryland under date of December 23, 1788, offered to cede territory for the seat of the Federal government. In the act of the general assembly of that State of December 19, 1791, ratifying the cession and fixing the boundaries of the ceded area, it was provided in clause 2:

“That all that part of the said territory called Columbia which lies within the limits of this State shall be, and the same is hereby, acknowledged to be forever ceded and relinquished to the Congress and Government of the United States, and full and absolute right and exclusive jurisdiction, as well of soil as of persons residing or to reside thereon, pursuant to the tenor and effect of the eighth section of the first article of the Constitution of Government of the United States.”

The State of Virginia on December 3, 1789, in the act of its general assembly ceding this territory to the United States enacted:

“That a tract of country, not exceeding ten miles square, or any lesser quantity, to be located within the limits of this State, and in any part thereof as Congress may by law direct, shall be, and the same is, forever ceded and relinquished to the Congress and Government of the United States, in full and absolute right and exclusive jurisdiction, as well of soil as of persons residing or to reside thereon, pursuant to the tenor and effect of the eighth section of the first article of the Constitution of the Government of the United States.”

The territory so conveyed was accepted by the United States in the spirit in which it was ceded. (Act of Congress, July 16, 1790, I Stats. 130.) No limitations were attached to the cession, certainly so long as it remained the permanent seat of the Federal Government. These States severally yielded all the political jurisdiction they possessed over this territory to the United States and the United States accepted this unconditional grant of sovereignty without qualification. One of the political powers so yielded and accepted was the right to erect a separate State out of this area.

The representatives of both the States of Maryland and Virginia had been most active in framing the Constitution!and these several grants show the interpretation all parties placed Clause 17, Section 8, Article 1. So far, as the original contemporaneous interpretation of this clause by the parties themselves affords a guide, there is no prohibition upon Congress to erect a State out of this area— particularly if the consent of the State of Maryland be secured.

COMPARISON OF CLAUSES

Comparison has sometimes been made between the clause conferring power on Congress of exclusive legislation over the District, and the clause giving Congress the power to govern the territory and other property of the United States. This latter clause is Article IV, Section 3, Clause 2:

“The Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States.”

The power of Congress to erect a new State out of such territory is unquestioned. It has been argued that if these two clauses were intended to convey similar powers, they would have been framed in similar terms. This argument loses sight of the conditions under which each clause was inserted in the Constitution.

At the time of the adoption of the Constitution Congress had received by cession from all but two of the original thirteen States the unsettled lands which lay beyond their territorial limits. This was termed the “Northwest Territory” and Congress exercised the absolute right to and the exclusive legislative authority over the territory. Hence there was no need to insert in the Constitution a clause conferring such exclusive authority over the territory, as Congress was at the time actually exercising this exclusive authority. In fact the Ordinance for the Government of the Northwest Territory was passed by the Continental Congress in 1787 prior to the adoption of the Constitution. This celebrated ordinance is regarded, after the Declaration of Independence, as the most important act of the Continental Congress and furnished for a long period the model after which other territories were organized under the Constitution. The clause in the Constitution dealing with the territory of the United States simply confirmed in Congress the power “to dispose of and make all needful rules and regulations” respecting this and other territory.

In the case of the territory to be occupied as the seat of the Federal Government, just as in the case of the forts, magazines, arsenals and dock yards, it was necessary for the Constitution to go further than in the case of lands actually under the exclusive authority of Congress. The seat of the Federal Government was to be formed out of land limited to 10 miles square to be ceded in the future by the States and which at the time was actually a part of those States and under their exclusive authority. It was necessary to provide that this exclusive authority should be taken out of the States ceding such lands and that it should become vested in the United States. A like necessity existed with reference to the land upon which should be erected forts, magazines, arsenals, and dock yards. The sweeping provisions of Art. I, Sec. 8, Cl. 17, were adopted for these purposes.

In each of these two clauses apt and appropriate words were used to carry into effect the intention of the framers of the Constitution. In the one case it was deemed proper to confirm in Congress the right to make needful rules and regulations over territory and other property owned by Congress. In the case of the district for the seat of the Federal Government, it was necessary to provide for exclusive legislative authority over land which would be ceded by certain States and which had, up to that time, been exclusively under State jurisdiction. In each case the effect is the same and Congress exercises exclusive jurisdiction over all such areas.

NO DELEGATION OF AUTHORITY

The case of Stoutenburgh v. Hennick; (1888) 129 U. S. 141, is sometimes cited as an authority which would prevent the delegation of legislative authority over the District by Congress. The erection of the State of Columbia would involve a surrender of jurisdiction and would not be a delegation of legislative authority. Moreover an examination of the opinion shows that the court went no further than to hold that Congress could not delegate the power to regulate interstate commerce of the Legislative Assembly of the District (10 Fed. Stats. Ann. 2d. ed. 469.)

Even if this transfer of jurisdiction to the State of Columbia could be considered a delegation of authority, the United States Supreme Court in 1878, in Welch v. Cook, 97 U. S., 542, decided that Congress could invest the District Legislature with that power. This case was decided only ten years before the case of Stoutenberg v. Hennick and was not overruled in this later case. The court said:

“It is not open to reasonable doubt that Congress had power to invest and did invest, the District (of Columbia) government with legislative authority, or that the act of the legislative assembly of June 26, 1873, was within that authority.”

JURISDICTION OVER FORTS

The clause empowering Congress to exercise exclusive legislative authority over the seat of the Federal Government, also confers a like authority over forts, magazines, arsenals, dock-yards and other needful buildings. The jurisdiction which the United States must exercise over its military and naval reservations is of necessity an exclusive one. The fact that the same clause confers a like authority in Congress over the District is strong evidence that no limitation upon this power was intended.

Where a State cedes certain land to the United States and reserves a reversionary interest in the property in case it is not used as a fort, the exclusive authority of the United States ceases when the property is leased for other purposes. The cession of such territory has been held to be of necessity temporary and to be exercised only so long as the place continues to be used for public purposes. When it ceases to be used the jurisdiction reverts to the State. The right reserved by a State to tax certain property in the reservation or to serve civil or criminal process has not been considered in violation of the exclusive jurisdiction of Congress.

These illustrations make it clear that this power of “exclusive legislation” is not of such a peculiar character nor of such high authority as to create separate and independent political areas forever under the jurisdiction of the Federal government. Territory or other property acquired by the United States, whether by conquest, purchase, or by cession of the legislature of a State, is subject to the exclusive legislative authority of Congress. This exclusive legislative authority can be surrendered and the property returned to the state which ceded it, or a new State can be erected out of such territory. The creation of a new State is subject to this limitation, that if erected out of land within the jurisdiction of any other State, it must be with the consent of the legislature of that State.

Story Constitution Law, Sec. 1127; Palmer v. Barrett, 162 U. S. 399; Fort Leavenworth Railroad Company, v. Lowe, 114 U. S. 525; 10 Federal Statutes, Ann. (ad. ed.) 841 – 845.

TERRITORIAL AUTHORITY

The power granted Congress to “exercise exclusive legislation in all cases whatsoever” over the District, does not confer any greater political authority than Congress can exercise over “the territory or other property belonging to the United States” or over places purchased with the consent of the State legislatures for the erection of forts, magazines, arsenals and dock-yards. In each case there exists under the Constitution that jurisdiction, absolute, exclusive, unqualified, which is the sovereign authority to make, decide on and execute laws. (*1) Wedding v. Meyler, (192 U. S. 573).

There is no express provision of the Constitution which authorizes Congress to enlarge the national domain or acquire new territory by annexation, cession, conquest, or in any other manner. This power, has, however, always been considered as one of the attributes of sovereignty and as such has been continuously exercised by Congress. As an inevitable consequence of the right to acquire territory, there follows the power to govern the territory. (*2) Rassmussen v. U.S. (197 U.S. 516). The power to pass laws for the government so acquired has sometimes been asserted on the strength of Article IV, Section 3, Clause 2, (supra.) On whatever ground this authority to govern rests, there can be no doubt of its existence and of the fact that under it Congress has the right of exclusive legislation over such territory and can dispose of and make all needful rules and regulations respecting it. This sovereign right of exclusive legislation is similar to that exercised by Congress over the District.

As has been said, if the title to property be absolute, the mode of its acquisition is unimportant. (*3.) Petition to Congress from Committee from town of Alexandria, Va., accompanying House Report 325, 29th Congress, 1st. Session. Whether it be by gift, purchase, conquest, or cession from a State, Congress possesses but a complete title to the area.

It might have been argued that because the Constitution authorized Congress to make “all needful rules and regulations” respecting the territory of the United States, Congress could never divest itself of that power. In other words, that Congress could never carve States out of such territory because by so doing it would surrender the power to make the “needful rules and regulations.” It is a sufficient answer to say that the Constitution has not been so construed. The admission of thirty-four States in the Union from such territory is ample proof of this fact.

The fact that the Constitution expressly confers upon Congress powers of exclusive legislation over the District does not thereby carry with it the implication that all other powers are denied, if there are any such other powers. A striking example of this rule of construction of the Constitution is found in the Legal Tender Cases, 12 Wall. 457. In this case the constitutionality of an act of Congress making paper money legal tender for the payment of debts was attacked because there was no express authority for such law.

It was contended that the clause of the Constitution which conferred upon Congress power “to coin money, regulates the value thereof and of foreign coin,” contained an implication that nothing but that which is the subject of coinage, namely, precious metals, could ever be declared by law to be money or legal tender. This argument was specious and persuasive. The fallacy of the contention, as the court observed, was that the Constitution has never been construed that way. The court held that the enumeration of certain governmental powers, did not thereby exclude the existence of other governmental powers not enumerated. The Court said:,

“XXXX[544]. It is not claimed that any express prohibition exists, but it is insisted that the spirit of the Constitution was violated by the enactment. Here those who assert the unconstitutionality of the acts mainly rest their argument. They claim that the clause which conferred upon Congress power “to coin money; regulate the value thereof, and of foreign coin,” contains an implication that nothing but that which is the subject of coinage, nothing but the precious metals can ever be declared by law to be money, or to have the uses of money. If by this is meant that because certain powers over the currency are expressly given to Congress, all other powers relating to the same subject are impliedly forbidden, we need only remark that such is not the manner in which the Constitution has always been construed.”

“XXXX[546]. In most cases, if not in all, when it was intended that governmental powers, commonly acknowledged as such, should cease to exist, both in the States and in the Federal Government, it was expressly denied to both, as well to the United States as to the individual states. And generally when one of such powers was expressly denied to the States only, it was for the purpose of rendering the Federal power more complete and exclusive.”

In like manner, the enumeration in the Constitution of certain powers conferred on Congress with reference to the District of Columbia, does not by implication take away other governmental powers. One of the governmental powers which Congress exercises over all territory or land of the United States is the right to admit such area in the Union as a State. This power not having been expressly or by implication taken away with reference to the District of Columbia still exists in Congress.

In the case of the First National Bank v. Yankton County, 101 U.S. 129, the Court discussed the power of Congress to legislate for the territories. It was said:

“In other words it (i. e. Congress) has full and complete legislative authority over the people of the territories and all the departments of the territorial governments.

In discussing the relationship which Congress bears to the Territory of Alaska and to the District of Columbia, the Court of Appeals of the District in U. S. ex. rel. Humboldt S. S. Co. v. Interstate Commerce Commission 37 App. D. C. 274, held:

“Congress in the government of the territories, has plenary power, except as limited by the Constitution. The particular form of government it shall establish is not prescribed. It has for example, prescribed one form of government for New Mexico, another for the District of Columbia, and still another for Alaska. * * * While Congress in the government of the District of Columbia is limited by the provisions of the Constitution not applicable to other territory of the United States, the same power exists of establishing local government.”

In the case of the Corporation of Latter Day Saints v. U. S. 136 U. S. 32, 42, it was held:

“The power of Congress over the territories of the United States is general and plenary.”

While there may be some fundamental guarantees of life, liberty and property under the Constitution which are applicable to the District of Columbia and not to the territories nevertheless in political matters Congress exercises “plenary” power over both. (Employers, Liability Cases 207; U. S. 500.)

In the case of Callan v. Wilson, 127 U.S. 540, the Court held with reference to a trial by jury:

“We cannot think that the people of this District (of Columbia) have in that regard, less rights than those accorded to the people of the territories of the United States.”

The extent of the authority which Congress exercises of the District and over the Territories was clearly discussed in the case of Binns v. U.S., 194 U. S. 486. The Court held that Congress exercised plenary power, and Mr. Justice Brewer, in writing the opinion of the court, said:

“XXXX[491] It must be remembered that Congress, in the government of the territories as well as of the District of Columbia, has plenary power, save as controlled by the provisions of the Constitution; that the form of government it shall establish is not prescribed and may not necessarily be the same in all the territories. We are accustomed to that generally adopted for the territories, of a quasi state government, with executive, legislative, and judicial officers, and a legislative endowed with the power of local taxation and local expenditures; but Congress is not limited to this form. In the District of Columbia it has adopted a different mode of government, and in Alaska still another. It may legislate directly in respect to the local affairs of a territory, or transfer the power of such legislation to a legislature elected by the citizens of the territory. It has provided in the District of Columbia for a board of three Commissioners, who are the controlling officers of the District. It may entrust to them a large volume of legislative power, or it may, by direct legislation create the whole statutory law applicable thereto. For Alaska, Congress has established a government of a different form. It has provided no legislative body, but only executive and judicial officers.”

In the Insular Tariff Cases after the Spanish War, Mr. Justice Brown, in writing the opinion of the Court in the case of De Lima v. Bidwell, 182 U.S. 196, said:

“Under this power (to govern and control the Territories) Congress may deal with territory acquired by treaty; may administer its government as it does that of the District of Columbia; it may organize a local territorial government; it may admit it as a State upon an equality with other States; it may sell its public lands to individual citizens or may donate them as homesteads to actual settlers. In short, when once acquired by treaty, it belongs to the United States, and is subject to the disposition of Congress.”

Compare also Downes v. Bidwell, 182 U. S. 244.

In the great case of Cohens v. Virginia, 6 Wheat, 265, there was involved the validity of a lottery law enacted by Congress with reference to the District. Daniel Webster was one of the counsel and argued, page 435, that the clause of the Constitution relative to the District conveyed powers so peculiar and specific that no other city in the Union could be given such a charter by Congress and if every Federal power granted in the Constitution were destroyed, this power over the District of Columbia would remain. But Chief Justice Marshall held that the power of exclusive legislation over the District was conferred on Congress as the legislature of the Union and that such powers could be exercised in no other way:

“In the enumeration of the powers of Congress which is made in the eighth section of the first article, we find that of exercising exclusive legislation over such district as shall become the seat of government. This power, like all others which are specified, is conferred on Congress as the legislature of the Union; for, strip them of that character, and they would not possess it. In no other character can it be exercised in legislating for the district, they necessarily preserve the character of the legislature of the Union; for it is in that character alone that the constitution confers on them this power of exclusive legislation.”

These decisions of our highest Court plainly show that the political power which Congress exercises over the District is plenary, that it is full and absolute, and is similar to that exercised over the territory or other property of the United States. Congress may in each case create a State out of such area.

RETROCESSION OF ALEXANDRIA COUNTY, VIRGINIA

The land secured from the State of Virginia was retroceded to that State by the Act of Congress of July 9, 1846. If Congress had the right to divest itself of the power of exclusive legislation over a portion of the District by this retrocession, Congress can erect the State of Columbia out of the remaining area. It was argued that this act was unconstitutional and that the exclusive jurisdiction over the seat of the Federal government could not be surrendered. The act was passed in spite of this objection and the retrocession has stood without successful challenge for a period of seventy-five years. As this is essentially a political question, it is very doubtful whether this act of retrocession can ever be considered by the courts. In the case of Phillips v. Payne, (1875) 92 S. U. 130, an attempt to raise this question was refused. (Wilson v. Shaw, 204 U.S. 24; Luther v. Borden, 7 How 1, 42).

In like manner the erection by Congress, with the consent of the State of Maryland, of the State of Columbia, would be a purely political question and the courts would have no jurisdiction to consider it.

From a study of the wording of the Constitution and of the original grants of this territory from the States of Maryland and Virginia; from an examination of the decisions of the Supreme Court of the United States; and from the action of the political branch of the Government in retroceding a portion of this area to the State of Virginia; it must be conceded that the weight of precedent and authority is in favor of the proposition that Congress has authority, with the consent of the State of Maryland, and without a Constitutional Amendment to erect out of the District of Columbia a Sovereign State—THE STATE OF COLUMBIA.

FRANK SPRIGGS PERRY
Associate Professor of Constitutional Law



Act of Cession from the State of Virginia – December 3, 1789
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In this act, passed December 3rd, 1789, the State of Virginia “forever ceded and relinquished to the Congress and Government of the United States,” a tract of land no larger than 10 miles square to be used for the seat of government of the United States. However, 57 years after the passage of this act, the Legislature of State of Virginia would pass a subsequent act requesting the land back with the assent of Congress and the people of Alexandria.

One constitutional question I have, and the reason why I am posting the legislation below, is, if in the spring of 1846, did the State of Virginia violate Article I, Section 10, Clause 1 of the United States Constitution? This section says it is illegal for States to pass laws impairing the obligation of contracts. Therefore, if the State of Virginia entered into a Contract with the Federal Government with the passage of the act below (and others), was the passage of the 1846 act requesting the land back a form contractual impairment?

Act of Cession from the State of Virginia - December 3, 1789

ACT OF CESSION FROM THE STATE OF VIRGINIA.

AN ACT for the cession of ten miles square, or any lesser quantity of territory within this State, to the United States, in Congress assembled, for the permanent seat of the General Government. [Passed the 3d December. 1789.]

I. Whereas the equal and common benefits resulting from the administration of the General Government will be best diffused, and its operations become more prompt and certain, by establishing such a situation for the seat of the said Government as will be most central and convenient to the citizens of the United States at large ; having regard as well to population, extent of territory, and a free navigation to the Atlantic Ocean, through the Chesapeake Bay, as to the most direct and ready communication with our fellow-citizens on the western frontier; and whereas it appears to this assembly that a situation combining all the considerations and advantages before recited may be had on the banks of the river Potomac, above tidewater, in a country rich and fertile in soil, healthy and salubrious in climate, and abounding in all the necessaries and conveniences of life, where, in a location of ten miles square, if the wisdom of Congress shall so direet, the States of Pennsylvania, Maryland, and Virginia, may participate in such location :

II. Be it therefore enacted by the general assembly, That a tract of country, not exceeding ten miles square, or any lesser quantity, to be located within the limits of the State, and in any part thereof, as Congress may by law direct, shall be, and the same is hereby forever ceded and relinquished to the Congress and Government of the United States, in full and absolute right, and exclusive jurisdiction, as well of soil as of persons residing or to reside thereon, pursuant to the tenor and effect of the eighth section of the first article of the Constitution of the Government of the United States.

III. Provided, That nothing herein contained shall be construed to vest in the United States any right of property in the soil, or to affect the rights of individuals therein, otherwise than the same shall or may be transferred by such individuals to the United States.

IV. And provided also, That the jurisdiction of the laws of this commonwealth over the persons and property of individuals residing within the limits of the cession aforesaid, shall not cease or determine until Congress, having accepted the said cession, shall, by law, provide for the government thereof, under their jurisdiction, in manner provided by the article of the Constitution before recited.


SOURCE: Page 651. The Compiled Statutes in Force in the District of Columbia, Including the Acts of the Second Session of the Fiftieth Congress, 1887-’89


Related Retrocession of Alexandria Entries:

+ MORE



ALEXANDRIA AND THE DISTRICT OF COLUMBIA – The Alexandria Gazette, June 9, 1909
|| 12/25/2009 || 2:06 pm || + Render A Comment || ||

This editorial is the third in a series of editorials published by the Alexandria Gazette in first week of June 1909. As the editors hinted to at the end of the previous editorial, they reprint a previous opinion that was rendered by Senator George Frisbie Hoar of the judiciary committee shortly before his death.

Printed in full, for the first then, as it is the first time now, are the committee’s findings that the matter between Congress and Alexandria County, the former portion of the District of Columbia, have been resolved by political, not judicial means, and there is nothing stopping the negotiations for the reacquisition from taking place. The Hoar opinion was written 7 years prior in 1902 and concluded that the Federal government can purchase those lands back with the consent of the State of Virginia.


Click to view the newspaper clipping

ALEXANDRIA AND THE DISTRICT OF COLUMBIA – The Alexandria Gazette, June 9, 1909

As heretofore stated Mr. Hayes, of California, on May 27 introduced a bill in the House of Representatives to extend the limits of the District of Columbia so as to take in all of Alexandria county, but not Alexandria city or that part of Falls Church which lies within the county. The bill was published in full in the Gazette of June 1. Commenting upon this the Gazette of June 1st suggested that Mr. Hayes should read the report made to the Senate on this subject by the late Senator Hoar. This report reads as follows and has never before been published in full:



Constitutionality of the retrocession of a certain portion of the District of Columbia ceded to the United States by Virginia.
April 11, 1902, — Ordered to be printed.
MR. HOAR, from the committee on the judiciary, submitted the folowing

ADVERSE REPORT.

The committee on the judiciary, to whom was referred the joint resolution (S. R. 50) directing the attorney-general to bring suit to determine the constitutionality of the retrocession of that portion of the original District of Columbia which was ceded to the United States by the state of Virginia, submit the following report:

The territory on the other side of the Potomac river, including the city of Alexandria, which was originally a part of the 10 miles square, was ceded by Virginia for the seat of government. It was retroceded to Virginia by act of Congress in 1846, accepted by Virginia, and thereafter Congress exercised no jurisdiction over it, except so far as it controls the Arlington national cemetery, the experimental farm of the Department of Agriculture, the military school for cavalry, and the signal corps, with the land and building occupied by them.

It seems to the committee that it is not expedient that this act of retrocession should be set aside by Congress, even if Congress have the power so to do, without the consent of Virginia. Virginia accepted the transaction, it being understood that it was at the desire and for the benefit of the national government. She has established in Alexandria the important and intimate relations which every state forms for its own citizens dwelling on her own soil; and the people, on the other hand, we presume, feel the loyal and deep attachment which such a relation excites. Such a tie ought not to be broken at all without the consent of the parties, except in case of some paramount and overwhelming public interest.

As to the suggestion that the retrocession was unconstitutional, it seems to as the answer is that from the nature of the case it is a political question and not a judicial question, and that it has been settled by the political authorities alone competent to decide it. It is like the question, What is the true state government, the true and lawful government of a state?– like the question, What is the true frontier? where any dispute exists as to whether territory belongs to us or so a neighboring foreign country, and many like questions.

These are partly questions of law and partly of fact. The questions of law may be settled by the highest court to whom, in the course of judicial proceedings, they may be taken, unless, and until that court choose to reverse its previous opinions. But the fact must be determined in each case, when it arises, by the jury or other tribunal authorized to find the fact. It would be utterly intolerable that territory should be held in one case to be a part of Virginia, and in another case to be a part of the District of Columbia, according as might be held, in the individual case.

So it seems to the case must be deemed settled by the acquiescence in the act by Virginia and of the United States, as manifested by the conduct of the departments of government for more that half a century. The consequences of holding that this retrocession has been void from the beginning would be very serious.

If it be desirable that Alexandria become a part of the District of Columbia again, the only way to accomplish it will be to open negotiations with Virginia and get her consent (See Luther v. Borden, 7 How., 1.)

The committee, therefore, report adversely, and recommend that the resolution be indefinitely postponed.


This newspaper article was transcribed from a scan of the original newspaper article. The document was obtained from the Chronicling America newspaper collection and is in the public domain. It is being republished here in order to continue my advocacy for full representation for the American citizens of the District of Columbia.



STILL AFTER ALEXANDRIA – The Alexandria Gazette, June 5th, 1909
|| 12/24/2009 || 10:25 am || 1 Comment Rendered || ||

This editorial is a follow-up to a previous editorial that included the full text of a bill that Representative Hayes, of California, had introduced in Congress the previous week to expand the size of the District of Columbia. Representative Hayes goes on record in this article saying that his bill is imperfect and that in the next session he would like to also include Alexandria City, which was left out. The editor of the Alexandria Gazette concludes with a hint at what the next editorial will be….


STILL AFTER ALEXANDRIA – The Alexandria Gazette, June 5th, 1909

Representative Hayes, of California, says he will push his bill, recently introduced in the House, for the return to the District of Columbia of the land once part of the District and later ceded to the State of Virginia. The action of the Twenty-third Congress in making the return of this land to Virginia has been criticised as unconstitutional, and President Taft at the dinner given him by the business men of Washington expressed a wish for the enlargement of the District.

Mr. Hayes said yesterday: “I am convinced that the land first ceded by Virginia is still legally a part of the District of Columbia. The constitution plainly states that an area not more than 10 miles square shall be the capital of the United States, under the jurisdiction of Congress. This Virginia land was ceded to the government for the District of Columbia, and there was and is no authority for its transfer back to Virginia. Since my bill was introduced I have become convinced that if the land is reclaimed by the government the town of Alexandria must be included in the transfer. I intend to push my measure at the next session, and I believe that the land will come back to the District. Certainly, no lawyer will contend for a moment that it rightfully belongs to the Dominion State, and I do not see how Congress can act otherwise than to restore the land to the jurisdiction of Congress.”

The president said in his speech that the city of Alexandria should be allowed to remain in Virginia, but members of Congress are of the opinion that if it is unconstitutional for the tract to remain in Virginia it is also unconstitutional for part of of the tract to remain in the State.

Mr. Hayes should read the report on this subject made to the Senate by Senator Hoar shortly before his death.


This newspaper article was transcribed from a scan of the original newspaper article. The document was obtained from the Chronicling America newspaper collection and is in the public domain. It is being republished here in order to continue my advocacy for full representation for the American citizens of the District of Columbia.



A Bill To Extend The Limits of the District of Columbia – The Alexandria Gazette, June 1, 1909
|| 12/23/2009 || 11:54 am || + Render A Comment || ||

It appears that some of my recent work uncovering the history of the District of Columbia has been somewhat popular as of late. I could not be happier. History brings joy only to those willing to learn it.

This entry was transcribed from the June 1st, 1909 edition of the Alexandria Gazette. The newspaper printed the entire text of a bill introduced by Representative Everis A. Hayes of California.

In this bill he outlines the expansion of the District of Columbia back to it’s original boundary, with the exceptions of Alexandria City and Falls Church, and gives the President authority to negotiate with the governor of the State of Virginia a price of no more than $100,000 for the land. [that is between 2 million and 40 million 2009 dollars depending on how you calculate it]

There is a portion of the text that is illegible due to the use of tape when the newspaper was archived. However, I was able to adjust the contrast to be able to make out about 90% of the missing text.

I have a couple more subsequent articles to be transcribed that follow up on what exactly happened to this bill.



A BILL TO EXTEND DISTRICT OF COLUMBIA LIMITS.

The following is the full text of the bill introduced in the House of Representatives on May 27, 1909 by Mr. Hayes, of California, which was referred to the committee on the District of Columbia:

A bill extending the limits of the District of Columbia.

Whereas more territory ought to be held under the exclusive legislation given Congress over the District which is the seat of the general government for purposes of such a seat; and

Whereas that portion of Alexandria county, in the State of Virginia, which was originally ceded to the United States by the State if Virginia and receded to the State of Virginia by the twenty-ninth Congress by an act approved July ninth, eighteen hundred and forty-six, is now necessary for the public uses of the District of Columbia; Therefore,

Be it enacted by the [lost] House of Representatives of the United States in Congress assembled, [lost] that portion of the original District of Columbia ceded to the United States of America by the State of Virginia and which was receded to the State of Virginia by the twenty-ninth Congress by an act approved July ninth, eighteen hundred and forty-six, except that portion lying within the boundary lines or corporate limits of the towns of Alexandria and Falls Church, be held under the exclusive legislation given Congress over the District of Columbia, which is the seat of the general government, for the purposes os such a seat, and all the rights and jurisdiction therewith be, and the same are hereby, forever bound unto the District in full and absolute right and jurisdiction as well as of soil as of persons residing or to reside therein.

Sec. 2. That the right of jurisdiction and sovereignty shall be exercised by the United States government for the purposes of the District of Columbia over that portion of said Alexandria county, State of Virginia, except that portion lying within the corporate limits of the towns of Alexandria and Falls Church on and after the first day of July, nineteen hundred and ten.

Sec. 3. That the President is hereby authorized and empowered to open negotiations with the State of Virginia, through the Secretary of War or such other officer or commissioner as he may deem necessary and proper, to comply with the provisions of this act; and, further, the President is authorized to pay over into the treasury of the State of Virginia such sum of money as may be mutually agreed upon by the President of the United States and the governor of the State of Virginia for relinquishing her sovereignty or jurisdictions over the said portion of Alexandria county to the District of Columbia.

Sec. 4. That if it be not possible to conclude negotiations with the State of Virginia prior to July first, nineteen hundred and ten, the sovereignty of the District of Columbia and the exclusive legislation by Congress, together with all the rights and jurisdiction of the same, as well as of persons as of soil, shall extend over Alexandria county as aforesaid, except that portion included within the corporate limits of the town of Alexandria and the town of Falls Church, on and after the first day of July, nineteen hundred and ten, and the negotiations fixing the amount of the award to be awarded to the State of Virginia may be completed and the money paid over into the treasury of the State of Virginia at some future time as may be agreed upon by the President of the United States and the governor of the State of Virginia.

Sec. 5. That in addition to any sum of money which may be paid into the treasury of the State of Virginia by the President of the United States as provided by this act Congress will assume and pay all the debts or any part thereof now due or outstanding against that portion of Alexandria county no included within the corporate limits of the towns of Alexandria and Falls Church at the time of the passage of this act.

Sec. 6. That so much money as may be needed to pay in full said outstanding debts or obligations against that portion of Alexandria county, Virginia, as aforesaid, is hereby appropriated our the United States treasury, out of any money not otherwise appropriated, to be paid when and as the same may become due and payable.

Sec. 7. That so much money as may be needed is hereby appropriated out of the United States treasury no otherwise appropriated, to carry out the provisions of this act, not exceeding one hundred thousand dollars.


This newspaper article was transcribed from a scan of the original newspaper article. The document was obtained from the Chronicling America newspaper collection and is in the public domain. It is being republished here in order to continue my advocacy for full representation for the American citizens of the District of Columbia.





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