CONSTITUTION ‑- STATE ACQUIRING FOREIGN FACILITIES

CONSTITUTION ‑- STATE ACQUIRING FOREIGN FACILITIES

The State of Washington may not acquire, directly, or by lease, docking facilities owned by a foreign country without the consent of Congress, however, it may enter into such an agreement with a corporation or individual of a foreign country without obtaining consent of Congress.

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                                                                 February 1, 1951

Honorable Jess B. Sapp
Senator, 40th District
Washington State Senate
Olympia, Washington                                                                                                              Cite as:  AGO 49-51 No. 441

Dear Sir:

            We have received your letter of January 25, 1951, requesting an answer to the following question:

            Can the State of Washington acquire directly, or by lease, docking facilities in a foreign country?

            Our conclusion may be summarized as follows:

            The State of Washington may not acquire, directly, or by lease, docking facilities owned by a foreign country without the consent of Congress, however, it may enter into such an agreement with a corporation or individual of a foreign country without obtaining consent of Congress.

                                                                     ANALYSIS

            Article 1, sec. 10, cl. 3, of the U. S. Constitution, states:

            "No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, orwith a   [[Orig. Op. Page 2]] foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay."

            The terms "Agreement or Compact" are to be given their broadest significance.  Holmes v. Jennison, 10 Law Edition 579 [[10 L.Ed. 579]], Willoughby's 2nd Edition on the "Constitution of the U. S." states that the terms used, referring to "Agreement or Compact," show that it was the intention of the framers of the Constitution to cut off all connections or communications between a state and a foreign power.

            It is to be pointed out that an agreement between a state and a foreign country may become valid with the consent of Congress.  This consent of Congress may be manifested by an informal act as well as a formal actVirginia v. West Virginia, 20 Law Edition 67 [[20 L.Ed. 67]].

            The case ofVirginia v. Tennessee, 37 Law Edition 537 [[37 L.Ed. 537]], infers that this consent of Congress may be given subsequent to the agreement in a case such as the one at hand.

            However, the state may enter into an agreement to acquire, by lease, or otherwise, facilities in a foreign country owned by a corporation or individual, as the Constitution contains no prohibition against such action, and the consent of Congress would not be required.

Very truly yours,

SMITH TROY
Attorney General

GEORGE LaBISSONIERE
Assistant Attorney General