The Department of State and the Department of Justice announced on July 14 the adoption of simplified procedure which will make possible the admission of refugee children from the war zones in whatever numbers shipping facilities and private assurances of support will permit.

It is contemplated that visas and the necessary travel papers shall at all times during the period of the emergency be in the hands of at least 10,000 children in excess of those for whom shipping facilities are currently available. The plan is designed to facilitate evacuation of children regardless of their financial circumstances.

The new regulations apply only to children under 16 years of age who seek to enter the United States to escape the dangers of war. The regulations authorize Issuance of visitors' visas to such children upon a showing of intention that they will return home upon the termination of hostilities.

Under these precedents it seems to me clear that the fact that the applicant for entry desires to remain within a possession of the United States for a contingent period which he cannot control or predict is not enough to exclude him legally from the statutory classification of "alien visitor." Referring again to the regulations on child refugees, one might object that the duration of the present war is unpredictable and that since it may possibly last a century visitors "for the duration" cannot be considered "temporary visitors." Yet the Secretary of State and the Attorney General have not considered that this possibility must exclude application of the "visitor" category. From Aristotle to Cardozo it has been observed that in social problems the certainty of mathematics cannot be achieved. If those in whom power to act on behalf of the Federal Government has been vested are reasonably persuaded that certain conditions which now exist are temporary rather than permanent, then it is only fitting and proper that they class as temporary visitors those aliens who seek permission to remain within these island possessions of the United States during a period when their presence is urgently desired by the local naval and civilian authorities.

(b) There remains, finally, for consideration the question whether any applicants for temporary entry permits who have pending applications for immigration visas must be excluded on the ground that the pendency of such an application is incompatible with the acceptance of a "temporary visitor" status.

I am of the opinion that no such legal consequence is attached to the act of applying for an immigration visa. This view is in accord with a series of decisions of the Federal courts holding that a person may in good faith apply for, and become entitled to receive, a visitor's visa even though the applicant has a conditional intent to acquire a more permanent status if the law permits. Thus, in the case of Chryssikos v. Commissioner of Immigration, 3 F. (2) 372 (C. C. A. 2, 1924), the decision of the Labor Department excluding the relator from entry as a temporary visitor, on the ground that she had testified that

June 2, 1941

she wanted to stay in the United States permanently, was reversed in habeas corpus proceedings. The court held that a desire to obtain the right of permanent residence did not evidence bad faith in applying for a temporary visitor's permit, and that the exclusion of the relator was therefore not legally justified.

Again, in the case of United States v. Curran, 13 F. (2d) 233 (D. C. S. D. N. Y., 1925), the decision of the immigration authorities to exclude an alien claiming a temporary visitor's status, on the ground that he hoped later to achieve a quota-exempt student-immigrant status, was reversed by the court, on the authority of the Chryssikos case. The court declared:

His exclusion was unjustified as a matter of law, because the statute gives him a present right to enter as a temporary visitor, and does not authorize the immigration authorities to exclude temporary visitors simply because they intend to learn our language and qualify themselves for admission to our colleges and universities. Whether this alien should be ultimately permitted to remain and pursue his studies in Stevens Institute is a question which does not arise at this time. It is sufficient that he is now entitled to enter as a temporary visitor. The case cannot in principle be distinguished from the decision of the Circuit Court of Appeals in this circuit in Chryssikos v. Commissioner of Immigration. (C. C. A.) 3 F. (2d) 372, p. 235.)

To the same effect is the decision in United States v. Reimer, 10 F. Supp. 992 (D. C. S. D. N. Y., 1935).

It is not intended, of course, to express a view on the question of fact which arises in every case as to whether the applicant for permission to take up temporary residence in a given Territory or insular possession of the United States intends in good faith to assume a merely temporary residence there. Cf. United States v. Commissioner of Immigration, 13 F. (2d) 943 (D. C. S. D. N. Y., 1925); Ex parte Menaregidis, 13 F. (2d) 392 (D. C. S. D. N. Y., 1925); United States v. Karnuth, 28 F. (2d) 281 (D. C. N. D. N. Y., 1928). All that is here asserted is the proposition which the absence of legislation suggests and which the decided cases make perfectly clear: that application for an immigration visa to enter the United States is not inconsistent with an intention that an interim visit to a designated Territory or insular possession shall be merely temporary, and does not legally preclude the applicant from the enjoyment of privileges accorded to other temporary visitors

Other special circumstances which may raise legal questions as to the scope of the authority of the Governor to admit nonimmigrant aliens to the Virgin Islands in emergency cases will be considered as they arise, upon submission of the facts to the Department.

Approved:

HAROLD L. ICKES,

Secretary of the Interior.

ACTIVITIES OF CITY GUIDES ON THE GROUNDS OF THE FORT MARION NATIONAL MONUMENT, FLORIDA

Opinion, June 24, 1941

NATIONAL MONUMENT-JURISDICTION-REVOCABLE LICENSE.

Authority of the Secretary of the Interior to prohibit activities of city guides on the grounds of the Fort Marion National Monument, Florida. Held, regardless of whether the United States has exclusive or merely proprietary jurisdiction over the Fort Marion National Monument in St. Augustine, Florida, the Secretary of the Interior has the authority to prohibit guides licensed by the city from soliciting on the monument grounds, including that area occupied, used and maintained by the city under a revocable license granted by the Secretary of War for street and sidewalk purposes. COHEN, Acting Solicitor:

My opinion has been requested relative to the authority of the Secretary of the Interior to prohibit guides, licensed by the City of St. Augustine, from soliciting on that portion of the Fort Marion National Monument, Florida, which the City, under a revocable license granted by the Secretary of War, is authorized "to occupy, use and maintain for street, roadway, and sidewalk purposes.'

It appears that the United States acquired title to the land in question from Spain by treaty, January 24, 1818, and that said land was reserved for military purposes March 23, 1849. By a "deed of cession" dated September 4, 1893, the Governor of Florida ceded exclusive jurisdiction over said land to the United States, describing it as the Military Reservation of Fort Marion. On January 8, 1908, the Secretary of War, who at the time was administering the area, executed a license, revocable at will by the Secretary, authorizing the City of St. Augustine "to occupy, use and maintain for street, roadway, and sidewalk purposes" certain described portions of land.1 By a

"THE CITY OF SAINT AUGUSTINE, FLORIDA, is hereby granted a license, revocable at will by the Secretary of War, to occupy, use and maintain for street, roadway, and sidewalk purposes, all that portion of the United States Military Reservation of Fort Marion, in Saint Augustine, Florida, lying between the tracks of the Saint Johns Light and Power Company (as shown on the map hereto attached) and the fences now existing around the private grounds bordering said reservation, with the exception of the ground attached to the so-called 'Sergeant's' house built and owned by the Government in the Southwest corner of the reservation and the house thereon: subject to the following provisions and conditions:

"1. That said Licensee shall construct and maintain a roadway at least twenty-five (25) feet in width along and outside of the tracks of the Saint Johns Light and Power Company; said roadway to be provided with a hard and smooth surface, and to be at all times maintained in good repair and condition.

"2.-That all portions of the ground herein authorized to be so used by said licensee that may not be needed for roadway or sidewalk purposes shall be always kept in a neat and parklike condition, either in grass or shrubbery, or both.

"3.-That the construction of a roadway and sidewalk, and the maintenance of the same and of the other portions of the reservation included within the grounds herein authorized to be used, shall be under the supervision of, and in the manner directed by, the Engineer Officer of the United States Army in charge of said reservation.

"4.-That said licensee shall prevent any further encroachment upon said reservation by private parties."

June 24, 1941

proclamation dated October 15, 1924 (43 Stat. 1868), issued under the authority of the act of June 8, 1906 (34 Stat. 225), the President declared the entire area of Fort Marion Military Reservation, with the historic structures and objects thereto appertaining, to be a national monument.

The administration of Fort Marion National Monument was transferred from the Department of War to the Department of the Interior by Executive Orders Nos. 6166 and 6228, dated June 10, 1933, and July 28, 1933, respectively (5 U. S. C. sec. 132 note), under authority of the act of March 3, 1933 (47 Stat. 1518, 5 U. S. C. sec. 128)

I have not been requested for an opinion, nor is there any need here: to determine, whether Fort Marion National Monument is still within the exclusive jurisdiction of the United States or whether, because it is no longer used for military purposes, political jurisdiction has revested in the State of Florida. In either event, I am of the opinion that this Department is authorized to prohibit the solicitation activities herein involved.

The grounds and the buildings of the Fort Marion National Monument are owned by the United States and the monument is maintained and supervised by the United States Department of the Interior for the benefit of the public. It has been held repeatedly that even when a State has political jurisdiction over lands owned by the United States the Federal Government may, nevertheless, use and regulate the use of such lands without embarrassment from the State. Camfield v. United States, 167 U. S. 518, 525, 526; Utah Power and Light Co. v. United States, 243 U. S. 389, 404; McKelvey v. United States, 260 U. S. 353, 359; Hunt v. United States, 278 U. S. 96; Surplus Trading Co. v. Cook, 281 U. S. 647, 650; James v. Dravo, 302 U. S. 134, 141, 142.

In the Hunt case, supra, it was held that, when necessary to protect public land from damage, Federal regulations respecting the killing of deer in a national reserve prevailed over State game laws which squarely conflicted with the Federal regulation. Cf. Noh v. Babcock, 21 F. Supp. 519, reversed on other grounds, 99 F. (2d) 738. It has also been held that State police regulations with respect to the use of oleomargarine, which conflicted with Federal regulations governing the internal conduct of a Federal institution, that is, the use of oleomargarine in a soldiers' home, was inapplicable, notwithstanding the fact that the State had political jurisdiction over the area. Ohio v. Thomas, 173 U. S. 276. It has been held, moreover, that the State police regulations did not apply to a post road, a Federal instrumentality, where the State police regulations conflicted with the Federal regulations covering the same subject matter—that is, the qualifications of a driver employed by the Post Office Department to drive a

Government truck over a post road in Maryland. Johnson v. State of Maryland, 254 U. S. 51.

Since the Fort Marion National Monument is a Federal institution or instrumentality, operated by the Federal Government on Federal land, it appears, in the light of the above-cited cases, that the Secretary of the Interior may, if he finds it necessary for the "proper government," "protection," or "maintenance of good order," prohibit the solicitation by city guides on any portion of the Fort Marion National Monument area. Act of March 2, 1933 (47 Stat. 1420, 16 U. S. C. sécs. 9a, 10a). In brief, the Federal Government's power to govern its institutions and the use of its lands is supreme and when State or city regulations conflict therewith Federal regulations control.

It is not believed that the revocable license which authorizes the City to maintain and use a street on the Fort Marion Monument grounds takes the street area in question out of the general rule stated above. Such licenses are permissive only and are subject to revocation for reasonable cause. United States v. Colorado Power Co., 240 Fed. 217. Accordingly, if the City were to persist in using the street in a manner which interfered with or embarrassed the Federal Government in its regulation of the monument in accordance with the purposes for which it was established, the Secretary of the Interior would be warranted in revoking the City's license and prohibiting its further use of the street. Should the City, therefore, refuse to cooperate with respect to the activities of its guides on the street area in question and take the position that the terms of its present revocable license are broad enough to authorize such activities, then the most feasible procedure, from an administrative standpoint, would appear to be the revocation of its present license and the issuance of a new license expressly prohibiting such activities.

In my opinion, therefore, regardless of whether the United States has exclusive or merely proprietary jurisdiction over the Fort Marion National Monument in St. Augustine, Florida, the Secretary of the Interior has the authority to prohibit guides licensed by the City from soliciting on the monument grounds, including that area occupied, used and maintained by the City under a revocable license granted by the Secretary of War for street and sidewalk purposes.

It should be indicated, however, that such authority stems from and must be in accordance with the act of August 25, 1916 (39 Stat. 535, 16 U. S. C. sec. 3), the act of March 2, 1933 (47 Stat. 1420, 16 U. S. C. secs. 9a, 10a), and the act of March 3, 1933 (47 Stat. 1518, 5 U. S. C. sec. 128 (a) (c)). The Judge Advocate General's opinion of October 23, 1930, cited in the National Park Service letter of August