Gera1d.C.    Mann             AUSTXN     aa. -l-m    This opinion overrules      in
                                                     part Opinion No.+3318




       Hon. Coke Stevenson              opinion NO. o-4438
       Governor of ,Texas               Be: The power of the State to pro-
       Austin, Texas                    hiblt or regulate the sale of 3.2..
                                        beer by au Army Post Exchange, lo-
                                        cated within a “dry” area, jurisdic-
                                       .tion over such military  area not
                                        having ,been’made by the State to the
                                        Federal Government and where the
                                        sale of such beer has been author-
                                        Szed by the proper military   authorl-
       Dear Sir:                        ties.
                   We have received and considered your request       to us
       for   au opinion.  We quote froti your request:
                     “Major General Richard Donovan, Commander of the
              Eighth Corps Area, United States Army, with headquarters
              at Fort Sam Houston, has.informed      me that the military
              authorities    at Camp Bowle have desired to authorize the
              sale of jo2 beer by the army post exchanges at that sta-
              tion.    General Donovan recognizes    that this contemplated
              action involves    a legal question.     His opinion is that
              the army post exchanges at Camp Bowie are government
              instrumentalities;     that the Legislature   of Texas has
              previously   recognized   them as such for the purpose of
              affording   them exemption from the cigarette       t~axj that,
              while the sale of, or dealllig in intoxlcatlpg         liquors
              at auy post exchange or canteen 1s still       prohibited    by
              Federal statute,     Congress, however, has declared that
              3.2 beer is non-intoxicating,     and the War Department has
              accordingly    authorized its sale by army post exchanges.
                      “The questions at issue appear to be clearly  stated
              in the letter which General Donovan has addressed to me
              on this subject.      I am attaching hereto a copy of his
              letter.
                    “I am submitting the entire matter to you for your
              careful consideration,  .aud~respectfully request your ad-
              vice and guidance on questions involved.”
                 In addition to the facts given in your request,  we de-
       sire to quote pertinent  parts of the letter from Major General
       Richard Donovan addressed to you and enclosed with your request:
Han, Coke Stevenson,     page 2


             “For a long time the military         authorities     at
     Camp Bowie, have desired to authorize the sale of 3.2
     beer by the Army Post Exchanges at that station.
     They are convinced that the supervised              controlled
     sale of beer within the camp is directly             related to
     the maintenance of morale and the general welfare of
     the command. It is also believed that by providing
     places where the soldiers        may lawfully procure and
     drink 3.2 beer within the camp and under the control
     of military     authorities    the temptation to obtain it
     and intoxicating      liquors against the laws of the local
     community would be materially           decreased.     More men
     would remain in camp. The suggested arrangement would
     therefore     be of material assistance        and benefit,      not-
     only to the military        authorities     but also to the state,
     county and city officials         charged with the responslbil-
     ity for the enforcement of the local prohibition                 laws.
     After careful consideration          of the matter I now desire
     to authorize the sale of 3.2 beer at the post exchanges
     at Camp Bowie and, whenever the situation              seems to
     justify    it, at other camps, posts or stations            located
     in drylocalities        in Texas.
          “For your information    I Inclose herewith copy of
     au opinion by The Judge Advocate-General    of the Army,
     which I understand has been approved by the Secretary
     of War, relative  to a.similar   situation In Louisiana.
     ***
           n*+*

            IYIn view of the foregoing     I think it clear that the
     views expressed in the inclosed        opinion of The Judge Ad-
     vocate General and followed by the Governor of Louisiana
     apply, with the result that there should now be no serious
     question about my authority to authorize the sale of beer
     at Camp Bowie.      I am, however, unwilling to do so at the
     risk of disturbing      the pleasant and entirely    satisfactory
     relations    now existing   between the military    and civil au-
     thorities    in this state.     Neither would I unnecessarily
     offend the sensibilities       of a local community.
          “Under these circumstances   I am following    the proced-
     ure which was successfully   pursued in the State of Louisi-
     ana under a similar situation.    I submit to you my views
     on the subject,  supported by the inclosed    opinion of The
     Judge Advocate General of the Army, in the hope that you
     may be able to advise me that you concur in the position
Hon. Coke Stevenson,     Page 3


       that the military’ authorities     have the paramount right
       to. control and supervise their post exchanges wherever
     ‘located,    and that if it is deemed necessary or advisa-
       ble for the morale and general welfare of the troops to
       authorize the sale of 3.2 beer by such exchanges, they
       may do so~without~incurring     the risk of criminal prose-
       cution by theme state authorities.      After procuring your
       concurrence in the,matter I propose to consult the lo-
       cal authorities    at Brownwood and then, after assuring
       myself that there is no appreciable         reasonable opposi-
       tion.by the city.and    county officials     there, I propose,
       with the approval of the War Department, to authorize
       the sale of 3.2 beer at Camp Bowie.
            “I anticipate no difficulty  with reference  to the
      payment of the state tax prior to delivery    of the beer
      at the exchanges.   The post exchanges    however, are not
      required to obtain and pay for state i icenses.    The
      beer will be sold under proper con trol and supervision
      and careful precautions   taken to prevent its being
      taken from. the camp.
            “The sale of. or dealing in ~intoticatiug      liquors at
      any pbst exchange or canteen is still       prohibited    by
      Federal Statute.      Congress,. however, ,has declared that
      3.2 beer is non-intoxicating      and the War Department has
      accordinglyauthorized      its sale by Army post exchanges.”
              This department has previously       held in Opinion No. O-
3318 that where a.deed       of cession of jurisdiction,        in compliance
 with A..vtlcles 5242 to .5247, Inclusive,       R.C.S. of Texas, 1925, has
.been made to the Federal Government that the state has no power
 or jurisdiction    to regulate.or     control the sale of beer in such
 ceded areas.     That part of the holding in that opinion is not in-
 volved nor affected ,here.       In the same opinion,     however, it was
 held if a deed’of cession of jurisdiction          had not been made, in
 the statutory manner, by the State of Texas to the Federal Gov-
 ernment, that the sale of beer by au Army canteen on grounds used
 for military    purposes located in .a “dry area” -as contemplated in
 the Texas Liquor Control Act, bye the Federal Government, was sub-
 ject to the Texas laws relating        thereto.    At ~the .time said opin-
 ion was writteu ,(April. 12,, 1941) there was considerable          confusion
 in the court decisions      regarding the legal status of Army post
 exchanges being Federal instrumentalities.            This is evidenced by
 the extended discussion       of ~the authorities    on that point in our
 Opinion No.~ O-2317, in which this department concluded that Amy
 Post Nxchaugeswere      no,t Federal instrumentalities        of Government.
 Itwill   .,be noted that at the time said Opinion No. O-2317 (May
 7, ,194C) was written the latest       case of importance in the Federal
Hon. Coke Stevenson,    page: 4


courts (United States vs. Query 121 F.(2d) 631) had not been
affirmed by the Fourth Circuit 6ourt of Appeals and, of course,
writ of certiorari  had not, at that time, been denied in the
case.   It should be further observed that at the time our Gpin-
ion No. O-3318 was written there were no facts before us show-
ing an expressed intention   of the commanding officer of the
Eighth Corps Area embracing the State of Texas, subject to the
approval of the War Department, to authorize the sale of beer
by au Army post exchange in a dry area such as we are now con-
sidering to the men in the Army under the rules and regulations
for the reasons shown in Major General Donovauls letter   as
quoted above.
          On February 13, 1942, this department again carefully
reviewed the authorities  regarding the legal status of Army post
exchanges and in Opinion No. O-4392 we held that Army post ex-
changes are Federal instrumentalities.   We quote from the opinion:
           "In reaching, our conclusion     we are inclined     to
     follow the recent Federal decisions         rather than the
     older cases and the California      Supreme Court.       We do
     so for two reasons.      In the first    place the question
     discussed herein is essentially       a Federal question and
     the~interpretation    placed on such a question by the
     Federal courts and by the Federal administrative           agen-
     cies should be given more welght,than         the decisions    of
     a state court.     This Is especially     true because the
     case of United States vs.'Query       directly    passed on this
     question and the Supreme Court of the United States de-
     nied an application    for writ of certiorarl~in        November,
     1941 . We adopt this view for the second reason that
     in our opinion a full analysis of the operation of Army
     post exchanges leads to the conclusion          that they are
     Federal instrumentalities     performing a necessary and
     vital governmental function under congressional           authority.
     As such they are exemptfrom the payment of the Texas
     Chain Store Tax.

          "Out Opilnion No. O-2317, which was written prior
     to the decisions  in the Query case and the Falls City
     Brewiug Company case     insofar asthe same holds post
     exchanges not to be $ederal instrumentalities,    is here-
     by expressly overruled."
           Since we have held that Army post exchanges are           Federal
instrwnentalities  we next consider the power of the state           to regu-
late and control the sale of beer by Army post exchanges,            in a
"dry area" within the meaning of the Texas Liquor Control            Act,
within an area used by the Federal Government for military            purposes
Hon. Coke Stevenson,    page 5


but over which it has not acquired       a deed of cession    of jurisdic-
tion from the State of Texas.

          The case of Fort Levenworth Railroad Company vs. Lewis,
114 U.'S. 525, 29 L. Ed. 264, by the Supreme Court of the United
States held:
           "Where, therefore,     lands are acquired In any
           other way by the United States within the limits of
           a state than by purchase with her consent, they will
           hold the land subject to this qualification:         that if
          upon them forts,     arsenals,   or other public buildings
           are erected for the uses of, the general government,
           such buildings,    with their appurtenances,     as iustlu-
          mentalities    for the execution of its~powers        will be
           free:from    any such Interference     and juris dz!ctlon of
           the state as would destroy or impair their effective
          use for the purposes desired.        Such is the law with
           reference   to all Instrumentalities     created by the gen-
           eral government.     Their exemption from state, control
           is essential    to the Independence and sovereign au-
          ~thority of the United States within the sphere of their
          delegated powers.       But when not used as such instru-
          mentalities,     the Legislative   power of the state over
          the places acquiredwill        be as full aud complete as
           over any other places within their limits."
           In the case of Ohlo vs. Thomas, 173 U. S. 277, 43 L.Ed.
699, where the Governor  of a Soldiers' Home was convicted  for dis-
regard of a state law concerning the use of oleomargarine,   while
furnishing  it to the Inmates of the home as a part of their ra-
tions, the court said:

            It *** In making provision  for so feeding the inmates,
     the Governor, under the direction      of the Board aT Managers,
      and with the assent and approval of Congress, is engaged
     In the internal     administration of a Federal institution,
     and we thiuk a state legislature      has no constitutional  power
     to interfere    with such management as is provided by Con-
     gress.
            "Whatever jurisdiction     the state may have over the
     place or ground where the Institution         is located,    it can
     have none to interfere      with the provision     made by Congress
     for furnishing     food to the iumates of the home, nor has it
     power to prohibit      or regulate the furnishing      of any article
     of food which isapproved        by the officers     of the home, by
     k,"zt;z;vd~of   Managers,~and by Congress.       Under
                                                       .       such circu-
         n      the uolice   Dower  of state  has  no  mri  sdict~iog.
                                                                        .   _



Jion. Coke Stevenson,   page 6


            “We mean by this statement to say that Federal
     officers   who are discharging    their duties in a state
     and who are engaged, as this appellee was engaged, in
     superintending     the internal government and management
     of a Federal fnstitution,      under the lawful direction
     of its Board of Managers and with the approval of Con-
     gress are not subject to the jurisdiction       of the state
     in regard to those very matters of administration,
     which are thus approved by Federal authorities.”          (Un-
     derscoring   ours)

           It was held in the case of Johnson vs. Maryland, 254
U.S. 5‘1, 65 L.%d. 128, that the State of Maryland had no author-
ity to arrest an employee of the Post Office Department of-the
United States while such employee was driving a Government motor
truck in the transportation   of .malls over a post road from a
point in Maryland to Washington, DX.,     because the driver.had  not
obtained a driver’s   license as required by state law.    The court
said:

            “It seems to us that the immunity of the intru-
     ments of the United States from state control in the
     performance of their duties extends to a requirement
     that they desist from performance until they satisfy
     a state officer,   upon examination, that they are com-
     petent for a~necessary part of them, and pay a fee for
     permission to go on. Such a requirement does not mere-
     ly touch the government severance remotely by a general
     rule of conduct; it lays hold of them in their specific
     attempt to obey orders, and requires qualifications    in
     addition to those that the government has pronounced
     sufficient  . It is the duty of the department to employ
     persons competent for their work, and that duty it must
     be presumed has been performed.”
            Article  2, Section 8, of the United States Constitution,
provides:
 ..
            “The Congress shall have power *** to raise and
      support armies *** to make rules for the government
      and regulation    of the land and naval forces *** and
      to exercise   exclusive  legislation  in all cases whatso-
      ever *** 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 build-
      1%; - to make all laws which shall be necessary and
      proper for carrying into execution the foregoing       powers,
      and all other powers vested by this Constitution       in the
Hon. Coke Stevenson,    page 7


      Government of the.Unlted    States   ,or in any depart-
      ment or officer thereof."
           ~Pursuant ,to the .foregoing ,constitutional   authority    the
Congress has enacted certain Acts relating        to the creation,   main-
tenance and support of the Army of the United.States.           The stat-
utes which we think are pertinent      to this discussion    will be con-
sidered.  .~
           The duties of the Chief~of,Staff of the Army have been
defined by Congress and are contained in 10 U.S.C.A.,  Section 33.
Said section reads as follows:
             "The,Chlef of Staff shall preside over the War
      Department G~eneral'Staff and, uuder the dire.ction         of
      the ~Pres$.dent, or of the Secretary of War, uuderthe
      direction    of the President,    shall cause to be made,
      by the War Department Geae~ral Staff,       the necessary
      plans for recrditing,.orga&ziug,         supplying,  equipping,
      mobilizing,    training,   and demobilizing    the Army of the
      United States, aud.:for the use of the.milltary         forces
      for national defense.       .He shall transmit to the Secre-
      tary tif,War the .plans and,recomendatlons        prepared ~for
      that purpose by the War ~Department General Staff and
      advise h&z in regard thereto;        upon the apprqval of such
      plans or recommendation by the Secretary of War, he
      shall,act    as the agent of the Secretary of War In carry-
      ing the same into.effect."
           Section~l6   of,~lC U.S.C.A.    reads as follows:
            "The.Preside&    is authorized &make and'publish
      regulations   for the government of ,the Army in accord-
      ance with existing   laws, which shall be in force and
     ,obeyed until altered or revoked by the same authority;
      provided,   that said regulation   shall not be inconsist-
      ent with the laws of the United States."
             In accordance with the.above authority granted by Con-
 gress, Army Reg~ulations~No.~210-65 were issued on July 1, 1941.
 Said Regulations were promulgated by General G. C. Marshall        Chief
.of Staff,   by order of .the Secretary of War and they.superse$e    all
 previous letters    and instructions     pertaining~to exchanges. Said
‘Regulations   read in.part   as follows:
            "1.   Puruoses - ae Exchanges are established      for
      the following,purposes:      (1)   To supply the persons to
      whom sales are authorized     (par. 131, at the lowest
      possible   price, with articles    of ordinary use, wear,
      and consumption not supplied by the Government.
Hon. Coke Stevenson,   page 8.


           "(2)  To afford to military    personnel facilities
     for comfort, recreation,     and amusement to include,     as
     may be desirable,    the financial support and mainten-
     ance of recreational    atheltics, entertainments,     service
     clubs, libraries,    and community cooperation within the
     limits prescribed    in AR 210-50.
          “(3) To provide,   when necessary,  the means for
     improving organization  messes.   :a. Exchanges should be
     conducted in such a mauner as to be of real assistance
     and convenience to enlisted  men and not as large profit
     maklug institutions.
           "2.   Establishment - a. Whenever conditions      make
     it desirable   and practicable     the commanding officer   of
     a post, camp, or station wlli establish      and maintain au
     exchange to include such number of branches, departments,
     and subordinate activities      thereof as may be necessary
     to serve the military     personnel."
           It is apparent therefore    that Congress has delegated
the authority to make rules and regulations     far the goverment
and operation of the Army. It has placed on the Chief of Staff,
as agent of the Secretary of War, the duty of supplying the, Army
of the United States,    Army Post Exchanges have been established
pursuant to such authority    for the purpose of supplyfng Army
personnel certain commodities not supplied by the Am&yitself.
Likewise, the purpose of a post exchange is shown to be to afford
to military personnel the facilities     for comfort     recreation   and
amusement. We believe9    therefore,   that the reg lli ations issued
concevn&&g$rmy post exchanges were promulgated under the author-
ity of Congress.   United States VS. Query, 21 Fed. Supp. 784,
121 Fed. (2d) 6313 Ex parte Reed 100 U. S. 135 Denby VS. Berry,
263 U.S. 29; Smith vs. Whitney, 16   1 &.S. 167; United States VS.
Cordy, 58 Fed. (2d) 1013; Falls City Brewing Company VS. Reeves,
&I Fed. Supp. 35, and our Opinion No. O-4392.
           It is a well settled rule of law that rules and regula-
tions authorized and promulgated by the proper authority  and with-'
in the rule making power delegated to such authority and made in
accordance with existing  laws have the force and effect of law.
United States vs. Freeman, 3 Howard 556 566, 11 L. Ed. 724; Gra-
tiot vs. United States,  4 Howard 80, 118 11 L. Ed. 884; Ex parte
Reed, supra; Denby VS. Berry, supra; SmiCh V. Whitney, supra;
United States vs. Query, supra; and our Opinion No. O-4392.
          It was said by the court     in the Falls   City Brewing Com-
pany VS. Reeves, supra, case:
. .-._



     Hon. Coke Stevenson,        page 9                   .:



                      “The general welfare and moraleof         the personnel
            ~’in a military    traipihg    camp.3.s a.very.important.part
               of any military    progpau.look$ng    to a.welltrained.aud:
               efficient   army. The view is now well established          that
               adequate recreational     facilities   ,fov~ soldiers   in train-
            ,-irig are. as:important    as adequate drill     fields~. **+‘I
                  Under the holding ~ofthe authorities              referred to above,
     we~thiuk thatitmust           Abe said without.question-that         when the War
     Department finds the ,neces~sity for and promulgatesrules                   and regu-
     lations,forthe.benefit;         of..the general welfarej        morale.aud.safety
     of the armed forces that state officials               do not have.:the power’
     nor authority to question the action of the military                   authorities.
               .~ .~
                  ~Under”the~doctP&         laid dowg..&. the ;c&sof’~Fort:Leven-
     worth Railway &&p&y vs.‘Lewls,‘Ohio                vt Thomas% aud~Johnsou v.
    ,Maryland; supra; we thiukthat             the.State    has uo~<gowev bor:.juPis-
     dlction.tovegulate~$n          auymahuer nor.prohibit,.under            &ts.law.s;
     the’sale    of 3.2.beerin’a        dry,area,:-such     as Camp~:Bowi.e)~.where,:the
     sale of same has been authorized,             in such area, by the proper
    .authorlties     of the.WaF Department .in.,the ,lnterest~~of.promotlng
     the~.general~.welfa~e,:morale,aud          safety.of-$ts     armedforces.        It
     seemb”to~ds’th~t       Congress has delegated to the War Department ‘very
     broad powers for those purposes to be used by it, in its dlscre-
     tion, whenever its-highlytrained              military   eqerts,.find     it advis-
     able and proper, the’only          limitation     on’such discretionary       powers
     being that such ‘3regulations           shall not be inconsistent        with the
     laws of the UnitedStates,w,            If we should be in error in our con-
     clusion interpreting        ‘the holdings In the United States Supreme
     Court-cases,..jqst      re-ferred.to,in      this paragraph, we think that
     under the doctrine announced in Query~v. United States, supra
     (and other ~authoritie~stherein           cited),    that when the War Depart-
     ment.authorizes,,,,.by     proper ,order or regulation,         the sale of 3.2
     beer by~Army post exchanges to persons in the armed forces,                     where
     the exchange is located in a “dry” area, as contemplated within
     the Texas Liquor Control Act, the State through its officers                     and
     agents has no power nor jurlsdlction:.to              regulate.nor~ prohibitthe
     same. We think such action Is authorized under the Federal laws.
     If such regulation,$s         authorized,a@wit,hin         the~,scope of the dele-
     gated authority ~then it hasthe             equal force,    effect    and dignity
    ‘of law,     Query V. United States           supra; Rx parte Reed, 100 U. S.
     13; Denby vs. Berry, 263 U. S. 39. Smith v. Whitney 1.16 U. S.
     1675 United States V. Cordy             58 Fgd. (2d) 1013 Fali City Brewing
     Co. v. Reeves, &I Fed (2d) 35 and our Opinion 60. O-4392.
                    We are advised by the General’s letter  to you that the
         State authorities  of Louisiana have agreed with the contention    of
         the military authorities   of the Army that the State of Louisiana
         has no power to regulate nor prohibit,   under its laws, the sale of
Hon. Coke Stevenson,     page 10


3.2 beer by,Army post exchanges to persons In the Army in simi-
lar ttdry@l areas. .The War Department has authorized the sale of
beer, under the facts stated, in that State.
           It is indicated  in your letter   to us that the War Depart-
ment has already authorized the sale of 3.2 beer in Texas in “dry”
areas under the conditions    and circumstances  already discussed.
However, from a consideration    of the General’s letter we conclude
that he proposes to recommend to the.War Department, and subject
to its approval, that the sale of 3.2 beer be authorized at the
Ahy post exchanges at Camp Bowie, under the conditkons he has set
out in his letter.
           You are, therefore,   respectfully   advised that       it is our
opinion that when the War Department properly approves            the proposal
of Major General Donovan and authorizes,      by regulation       or order,
the sale of 3.2 beer at Camp Bowie’by the post exchange            to persons
in the Army that the State of Texas has no jurisdiction            nor power
to regulate nor prohibit    the same under its laws.
           Any conclusions      expressed in our Opinion No. 0-331.8 which
may be contrary to those       expressed herein are hereby expressly
overruled.
           We trust    that   in this   manner we fully   answered your in-
‘quey .
                                           Yours very truly
                                           ATTORNRY
                                                  GENERALOFTa
                                           By /s/ Harold McCracken
                                           Harold McCracken, Assistant
APPROvED,MAR 21, 1942
/s/ Grover Sellers
FIRST ASSISTANTATTORNNY
                      GNNFRAL
This opinion   considered     and approved In limited     conference.
HM:ej:wb
