139 W. Va. 748 | W. Va. | 1954
Lead Opinion
In this original proceeding in mandamus, the relators, W. P. Adams, Homer Morris, Duffy Mullins, J. C. Wells and J. H. Young, prayed that defendants S. H. Mullins
The questions posed having been decided by the Court, an order was heretofore entered denying the writ. This opinion is filed in accordance with an announcement made at the time of the entry of the order.
The proceeding was heard upon the petition of relators; the demurrer and answer thereto of defendant Londeree; the answer thereto of defendant Paul E. Wehrle, clerk; the demurrer and replication of relators to the answer of defendant Londeree; the depositions taken and filed on behalf of relators; and upon briefs and oral arguments.
In the certificate of Londeree announcing his candidacy for the nomination of mayor, he gave his address “as 32 Rhodes Avenue in said City”. The petition alleges “that the said address, and it was the correct address of said Londeree at said time, is within the bounds of said United States Naval Reservation”. The answer of Londeree “admits that at the time of his nomination and for several years prior thereto he was a resident of that part of the City of South Charleston included in the United States Naval Reservation and that he did give his address as 32 Rhodes Avenue in said city and that such address is correct and that said address is within the bounds of the said United States Naval Reservation * * *”.
Londeree is not a member of the armed forces and is not a civilian employee of any agency or department of
Defendants contended that the extraordinary remedy of mandamus would not lie for the purpose of determining the qualification of defendant Londeree, prior to his election, since it was not certain that he would be elected. In other words, they contend that the institution of the proceeding was premature. We are of the opinion, however, that the institution of the proceeding was not premature.
Section 9 of the city charter provides that “No persons shall be eligible to the office of Mayor, Treasurer, Recorder, or Councilman, unless at the time of his election he is legally entitled to vote in the town election for a member of the Common Council, and he was for the preceding year assessed with taxes upon real or personal property within said town of the assessed aggregate of at least One Hundred ($100.00) Dollars and shall have actually paid the taxes so assessed.” It is significant that the qualifications must exist “at the time of his election”, not at some future time or upon the happening of some future event. The provision is clear. It should be applied as written. In State ex rel. Morrison v. Freeland, 139 W. Va. 327, 81 S. E. 2d 685, we held: “2. Where a statute requires that a person to be elected to office shall have a specific qualification at the time of his election, the requirement is not satisfied by the removal of the disqualification after election.” This being true, since the contest can not arise
The. question involved there, however, related to the jurisdiction of the board of ballot commissioners to determine the qualification of a candidate in a primary election, where the certificate of candidacy was regular and showed on its face that the candidate was qualified to hold the office for which he sought the nomination. No jurisdiction to determine such question was vested in the board of ballot commissioners by any statute. Therefore, it had no jurisdiction to make any independent investigation in order to determine such qualification. But lack of jurisdiction of such a board can not be determinative of jurisdiction of a court having original jurisdiction in mandamus. Defendant members of the board of ballot commissioners hold office by virtue of the election laws, and Code, 3-5-41, provides that “Any officer or person, upon whom any duty is devolved by this chapter, [on Elections] may be compelled to perform the same by writ of mandamus.” While the chapter mentioned relates par
This Court has carefully pointed out in its opinions that the wording of a particular statute relating to qualifications of candidates is controlling in determining the time when the qualifications must exist. The question was recently considered in State ex rel. Morrison v. Freeland, supra, and need not be further considered here. See Slater v. Varney, 136 W. Va. 406, 68 S. E. 2d 757; Dryden v. Swinburne, 20 W. Va. 89.
The further contention is made by defendants that the remedy of an election contest afforded by Code, 3-9-1, instituted and prosecuted before a city council as to city officials, is adequate for determination of qualifications of a candidate, and that any question as to qualification of Londeree lies exclusively within the jurisdiction of the city council of South Charleston. They rely on cases like State ex rel. Harwood v. Tynes, supra; State ex rel. Jones v. Ingram, 135 W. Va. 548, 63 S. E. 2d 828; Evans v. Charles, 133 W. Va. 463, 56 S. E. 2d 880; and Martin v. White, 74 W. Va. 628, 82 S. E. 505.
It is true, as pointed out in some of the cases just cited, that in some instances the qualification of a candidate may be determined in an election contest proceeding. Code, Chapter 3, Article 9. To say that it is the only available and adequate remedy, however, obviously would deny courts having original jurisdiction of such proceedings as mandamus, quo warranto or prohibition, any jurisdiction as to questions concerning qualifications of candidates for nomination or election to office. The cases cited are sufficient authority to the contrary. See State ex rel. Morrison v. Freeland, supra.
We conclude, therefore, that the action of mandamus,
The remaining question to be answered by the Court relates to the qualification of Londeree to be elected as Mayor of South Charleston. The contention of relators was that since Londeree resided on the naval reservation for a number of years prior to becoming a candidate, the reservation being within the exclusive jurisdiction of the United States and not a part of the State of West Virginia, he was not a resident of the State at the time he filed his certificate of candidacy, and could not have become a person who had resided in West Virginia for a period of one year immediately prior to the time he would be “elected” to the office which he seeks. In other words, not being a resident of the State for a period of one year, he could not qualify for the office.
Section 4 of Article IV of the State Constitution provides that “No person, except citizens entitled to vote, shall be elected or appointed to any State, county, or municipal office * * *”. Section 1 of Article IV of the State Constitution provides that “The * * * citizens of the State shall be entitled to vote at all elections held with-in the counties in which they respectively reside; but no person * * * who has not been a resident of the State for one year, and of the county in which he offers to vote, for sixty days next preceding such offer, shall be permitted to vote while such disability continues; but no person in the military, naval or marine service of the United States shall be deemed a resident of this State by reason of being stationed therein.” Obviously, the question reduces itself to whether Londeree was a citizen and resident of the State, within the meaning of the State constitutional provision, while residing on the reservation. The answer to that question will become apparent if we can determine the true character or effect of the acquisition by the United States of the area comprising the reservation.
Title to the land within the reservation was acquired from the individual owners about 1917, prior to the incor
Before the acquisition by the United States of title to the area comprising the reservation, by Chapter 5 of the 1917 Acts of the Legislature, Second Extraordinary Session, Section 4 was amended to read, in so far as material here: “In pursuance of the seventeenth clause of the eighth section of the first article of the constitution of the United States, the consent of the Legislature of West Virginia is hereby given to the purchase or condemnation or acceptance as a gift, whether heretofore or hereafter made or had to the government of the United States, or under its authority, of any tract or parcel of land within the limits of the state, for the purpose of erecting thereon light houses, beacons, signal stations, post offices, custom houses, court houses, locks, dams, works for the improvement of the navigation of any watercourse, armor plate manufacturing plants, projectile factories or factories of any kind or character, or any other needful buildings or structures or proving grounds, or work of public improve
Section 4, as amended, and Section 5, quoted above, were in force at the time the South Charleston Reservation was ceded to the United States.
Subsequent to the acquisition by the United States, with the adoption of the 1931 Code, Sections 4 and 5, quoted above, were revised and, in so far as material here, read: “4. The consent of this State is hereby given to the acquisition by the United States, or under its authority, by purchase, lease, condemnation, or otherwise, or any land acquired, or to be acquired in this State by the United States, from any individual, body politic or corporate, for sites for light houses, beacons, signal stations, post offices, customhouses, courthouses, arsenals, soldiers’ homes, cemeteries, locks, dams, armor plate manufacturing plants, projectile factories or factories of any kind or character, or any needful buildings or structures or proving grounds, or works for the improvement of the navigation of any watercourse, or work of public improvement whatever, or for the conservation of the forests, or for any other purpose for which the same may be needed or required by the government of the United States. The evidence of title to such land shall be recorded as in other cases * * * Concurrent jurisdiction with this State in and over any land so acquired by the United States shall be, and the same is hereby, ceded to the United States for all purposes; but the jurisdiction so ceded shall continue no longer than the United States shall be the owner of such lands, and if the purposes of any grant to the United States shall cease, or the United States shall for five consecutive years fail to use any such land for the purposes of the grant, the jurisdiction hereby ceded over the same shall cease and determine, and the right and title thereto shall reinvest in this State. The jurisdiction ceded shall not vest until the United States shall acquire title of record to such land. Jurisdiction heretofore ceded to the United States over
Section 8 of Article I of the United States Constitution, in so far as material, reads: “The Congress shall have the power * * * 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 * *
At the time of the acquisition of title to the lands within the reservation, an Act of Congress provided: “No public money shall be expended upon any site or land purchased by the United States for the purposes of erecting thereon any armory, arsenal, fort, fortification, navy-yard, customhouse, lighthouse, or other public building, of any kind whatever, until the written opinion of the Attorney-General shall be had in favor of the validity of the title, nor until the consent of the legislature of the State in which the land or site may be, to such purchase, has been given * * *”. Revised Statutes, Section 355. The provision as amended now reads: “* * * Notwithstanding any other provision of law, the obtaining of exclusive jurisdiction in the United States over lands or interests therein which have been or shall hereafter be acquired by it shall not be required; but the head or other authorized officer of any department or independent establishment or agency of the Government may, in such cases and at such times
In considering the question posed, we need not consider the different methods whereby the Federal Government may acquire title to State lands, or the power or jurisdiction of the Federal Government over such lands, other than the method whereby title is acquired pursuant to the consent of the Legislature of the State. The basis and, to some degree, the effect of the “consent” provision of such statutes is stated in Fort Leavenworth Railroad Co. v. Lowe, 114 U. S. 525, 29 L. ed. 264, 5 S. Ct. 995, in this language: “This power of exclusive legislation is to be exercised, as thus seen, over places purchased, by consent of the Legislatures of the States in which they are situated, for the specific purposes enumerated. It would seem to have been the opinion of the framers of the Constitution that, without the consent of the States, the new government would not be able to acquire lands within them; and therefore it was provided that when it might require such lands for the erection of forts and other buildings for the defense of the country, or the discharge of other duties devolving upon it, and the consent of the States in which they were situated was obtained for their acquisition, such consent should carry with it political dominion and legislative authority over them. Purchase with such consent was the only mode then thought of for the acquisition by the General Government of title to lands in the
“But not only by direct purchase have the United States been able to acquire lands they needed without the consent of the States, but it has been held that they possess the right of eminent domain within the States, using those terms, not as expressing the ultimate dominion or title to property, but as indicating the right to take private property for public uses when needed to execute the powers conferred by the Constitution; and that the General Government is not dependent upon the caprice of individuals or the will of State Legislatures in the acquisition of such lands as may be required for the full and effective exercise of its powers. This doctrine was authoritatively declared in Kohl v. U. S., 91 U. S. 367***”.
The Fort Leavenworth Railroad Co. case involved the payment of certain taxes assessed by the State against property situated on the Fort Leavenworth Military Reservation. Title to the land within the reservation was acquired pursuant to an Act of the Legislature of Kansas ceding “Jurisdiction to the United States over the Territory of the Fort Leavenworth Military Reservation”, but
The reasoning usually followed in the cases was that the ceding of land to the United States ousted the State as a sovereign and constituted the United States the sole sovereign as to such territory, following by analogy, the ceding of territory by one nation to another nation, where
Thus, in James v. Dravo Contracting Company, 302 U. S. 134, 82 L. ed. 155, 58 S. Ct. 208, one of the questions involved related to the validity of a tax assessment by the State against the Dravo Contracting Company “As to work done within the exterior limits of West Virginia, the question is whether the United States has acquired exclusive jurisdiction over the respective sites. Wherever the United States has such jurisdiction the State would have no authority to lay the tax”. The assessment was upheld. In discussing the question, Mr. Chief Justice Hughes, in the opinion of the Court, uses this language: “It is not questioned that the State may refuse its consent
In Carnegie-lllinois Steel Corporation v. Alderson, 127 W. Va. 807, 34 S. E. 2d 737, Certiorari denied 326 U. S. 764, 90 L. ed. 460, 66 S. Ct. 146, this Court held: “2. A concern engaged exclusively in producing war material for the use of the United States Government at a time of national emergency, with machinery and in a plant leased from the Government and under contracts providing a fixed unit price to be paid by the Government, is not to be treated as exercising a sovereign function of the Federal Government and therefore exempt from a state tax, in the absence of an Act of Congress recognizing the claimed exercise.” There were involved in the case the assessment and collection of a tax by the State against a taxpayer operating as a lessee of the United States upon the very reservation involved in the instant proceeding. The tax was held valid by virtue of the Act of Congress commonly referred to as the “Buck Act”, Public Act No. 819, 54 Statutes 1059, 4 U. S. C., Section 14. The significance of the holding here is that any “power to legislate” as to the assessment and payment of the tax acquired by the United States by virtue of the “Buck Act” has been re-ceded to the State, so that the defendant Londeree would be liable for a like tax and, if not entitled to vote, we would have a clear case of taxation without representation, brought about by deliberate actions of the State and the United States. Assuming that the consent of the State to the acquisition of the reservation here involved deprived the State of all rights of sovereignty over the territory therein, has not the United States re-ceded such sovereignty to the State, in so far as taxation and the right to vote are concerned?
In Silas Mason Co. v. Tax Commission of the State of Washington, 302 U. S. 186, 82 L. ed. 187, 58 S. Ct. 233, the question of exclusive jurisdiction of the United States
In Atkinson v. State Tax Commission of Oregon, 303 U. S. 20, 82 L. ed. 621, 58 S. Ct. 419, land was ceded to the United States under a state statute whereby the United States could acquire exclusive jurisdiction of certain lands. The question before the Court related to the validity of personal income taxes assessed under Oregon law arising from work done upon land acquired by the United States. In holding the tax valid, the Supreme Court of Oregon stated: “The mere fact that there may be on the statute books of the state a general law, such
In Sadrakula v. James Stewart & Co., 280 N. Y. 730, 21 N. E. 2d 217, it was held that the labor laws of the State of New York remained in force within territory over which the United States had obtained exclusive jurisdiction. On affirming, the United States Supreme Court stated: “It is now settled that the jurisdiction acquired from a state by the United States whether by consent to the purchase or by cession may be qualified in accordance with agreements reached by the respective governments. The Constitution does not command that every vestige of the laws of the former sovereignty must vanish. On the contrary its language has long been interpreted so as to permit the continuance until abrogated of those rules existing at the time of the surrender of sovereignty which govern the rights of the occupants of the territory transferred. This assures that no area however small will be left without a developed legal system for private
In Arapajolu v. McMenamin, 113 Cal. App. 2d 824, 249 P. 2d 318, the Court had under consideration questions relating to the rights of persons residing upon reservations acquired by the United States under a consent statute to the same practical effect as the applicable West Virginia statute. The Court, in holding the persons entitled to vote, stated: “Respondents argue in their brief: ‘The states could have reserved the right to vote at the time of original cession where such right did not conflict with federal use of the property * * * but did not do so.’ We cannot follow the force of this argument. The State of California did not relinquish to the United States the right of citizens resident on federal lands to vote nor did the United States acquire those rights. The right to vote is personal to the citizens and depends on whether he has met the qualifications of sec. 1, Art. II of our Constitution. If the State retains jurisdiction over a federal area sufficient to justify a holding that it remains a part of the State of California a resident therein is a resident of the State and entitled to vote by virtue of the Constitutionally granted right. No express reservation of such rights is necessary, nor could any attempted express cession of such rights to the United States be effective.” The reasoning applied in that opinion is applicable in the instant case.
There is authority for the position that where property ceded to the United States is no longer used for the purposes for which acquired, it automatically becomes subject to the laws of the State from which acquired. See S. R. A., Inc. v. Minnesota, 327 U. S. 558, 90 L. ed. 851, 66 S. Ct. 749; Palmer v. Barrett, 162 U. S. 399, 40 L. ed. 1015, 16 S. Ct. 837; Fort Leavenworth Railroad Co. v. Lowe, 114 U. S. 525, 29 L. ed. 264, 5 S. Ct. 995.
Other authorities which have considered the question or reflect the numerous difficulties arising from the doctrine of exclusive Federal jurisdiction over such reserva
In a number of Acts of Congress, rights of States to exercise jurisdiction in some respects over such reservations have been recognized, thus making it clear, we believe, that the lands within such reservations in some respects remain the territory of the ceding States. Thus, in the “Buck Act” mentioned above, 4 U. S. C., Section 14, the’ rights of the respective States to assess and collect “such tax in any Federal area within such State to the same extent and with the same effect as though such area was not a Federal Area”, were recognized. A statute, 40 U. S. C., Section 290, authorizes the several States to apply and enforce the workmen’s compensation laws “to all lands and premises owned or held by the United States of America by deed or act of cession, by purchase or otherwise * * *”. Another statute, 16 U. S. C., Section 457, provides that in case of wrongful death “within a national park or other place subject to the exclusive jurisdiction of the United States * * * such right of action shall exist as though the place were under the jurisdiction of the State * * *”. Another Act, 26 U. S. C., Section 1606, authorizes the respective States to enforce their unemployment compensation laws over “premises owned, held or possessed by the United States, and any State shall have full jurisdiction and power to enforce the
From the authorities considered it is clear, we think, that the State can not be denied sovereignty over any part of its territory except by its own consent; that the consent of the State to acquisition by the United States of territory for certain defined purposes does not deny the exercise of sovereignty of the State over the territory as to purposes which can in no manner conflict or interfere with the use of the territory by the United States for the purpose or purposes for which it was acquired; that exclusive jurisdiction over such territory can not be foisted upon the United States without its acceptance; and that the State and Federal Governments may, and in numerous cases do, exercise concurrent jurisdiction over territory ceded by the respective States to the Federal Government under consent statutes similar to that under which the South Charleston Naval Reservation was acquired.
The same conclusions are clearly reflected under the present State “consent” statute and the applicable Act of Congress quoted above. Thus, the State statute cedes
To hold that the exclusive jurisdiction doctrine contended for by relators applies in the circumstances of the instant case would effectively deny the large ever growing number of individuals residing within Federal enclaves the privilege of voting, notwithstanding they are charged with burdens of government. It would also deny them the benefits of laws in fields wherein the Federal Government can not, or has not, legislated. See Lowe v. Lowe, 150 Md. 592, 133 A. 729, Divorce; Harris v. Harris, 205 Iowa 108, 215 N. W. 661, Divorce; Tagge v. Gulzow, 132 Neb. 276, 271 N. W. 803, Public Schools; Devine v. Unaka National Bank, 125 Term. 98, 140 S. W. 747, Administration of Estates; In Re Kernan, 288 N. Y. S. 329, Custody; Foley v. Shriver, 81 Va. 568, Attachment Proceedings; Heirich v. Howe, 50 N. M. 90, 171 P. 2d 312, Adoptions; In Re Burrus, 136 U. S. 586, 34 L. ed. 500, 10 S. Ct. 850, Domestic Relations. We can not believe that such results were ever intended by the United States or by the State. No necessity therefor existed.
We must now determine the effect of the ceding by the State, and the acquisition of the territory within the South Charleston Naval Reservation, with reference to the rights of a person residing therein with the consent, in fact, at the instance, of the United States, who was for years prior to moving thereon a citizen, resident and voter of the State of West Virginia, and continued as such un~
As to the question posed, we have concluded that the State, in ceding the territory within the South Charleston Naval Reservation, retained sovereignty over the same to the extent that such State sovereignty does not conflict or interfere with the “power” of the Federal Government “to exercise exclusive jurisdiction” as to the uses and purposes for which the land was acquired, and that such uses and purposes have no relation to the right or privilege of persons residing thereon, with the consent of the United States, to vote in State elections. In so far as this record shows, the Federal Government has never accepted, claimed or attempted to exercise, any jurisdiction as to the right of any resident of the reservation to vote.
Considering the State consent statute under which the land within the reservation was acquired, quoted above, it will be observed that the “consent” given extended
It may be that in the early history of our country, when the areas of such reservations were few and small (see West Virginia statute quoted above limiting areas which could be ceded to twenty five acres), there was some justifiable reason, or at least no serious injustice, in holding that the Federal Government acquired sole sovereignty over such ceded lands. But can such a result be justified where large and numerous areas are now owned and are being continually acquired by the United States? However that may be, the United States has, we think, long since refused to accept sole sovereignty of such ceded lands and has repeatedly, both through its Courts and by Acts of Congress, recognized and insisted that States have retained sovereignty as to such matters as do not interfere or conflict with the use of the areas by the United States for the purpose or purposes for which the same were ceded. By so holding, the necessity of disfranchising a large number of citizens is avoided.
Writ denied.
Dissenting Opinion
dissenting:
The decision of the majority in denying the writ sought in this proceeding is based upon a misconception of the effect of Section 4 of Chapter 5, Acts of the Legislature, 1917, Second Extraordinary Session, and a misapplication of Section 3 of Chapter 1 of the Code of 1931. It is contrary to an unbroken line of decisions of the Supreme Court of the United States and appellate courts in other States, some of which, clearly refuting the conclusion reached, are cited in the majority opinion. It is also completely unsupported by any persuasive applicable text or case authority. In consequence I dissent to the extent indicated in this opinion.
Section 4 of Chapter 5, Acts of the Legislature, 1917, Second Extraordinary Session, pursuant to which the United States acquired the Naval Reservation, contains, among others, these comprehensive provisions: “In pursuance of the seventeenth clause of the eighth section of the first article of the constitution of the United States, the consent of the legislature of West Virginia is hereby given to the purchase or condemnation or acceptance as a gift, whether heretofore or hereafter made or had to the government of the United States, or under its authority, of any tract or parcel of land within the limits of the state, for the purpose of erecting thereon light houses, beacons, signal stations, post offices, custom houses, court houses, locks, dams, works for the improvement of the navigation of any watercourse, armor plate manufacturing plants, projectile factories or factories of any kind or character, or any other needful buildings or structures or proving grounds, or work of public improvement whatever, or for any other purpose for which the same may be needed or required by the government of the United States. The evidence of title to such land shall be recorded
As previously indicated, the nature and the extent of the jurisdiction acquired by the United States over land within a State purchased by the United States pursuant to consent to such acquisition given by a statute of the State which reserved only the right to execute civil and criminal process upon the land acquired by the United States, have been frequently considered by recognized text- writers and appellate courts in many other jurisdictions.
More than a century ago the illustrious Joseph Storey, then an Associate Justice of the Supreme Court of the United States, in his Commentaries on the Constitution, published in 1833, Volume II, Section 1227, 5th Edition, in discussing the civil and political rights of persons who
Chancellor Kent, in his Commentaries, first published in 1826, Volume 1, Lecture 19, Sections 429, 430, 431, Fourteenth Edition, pages 574 to 578, with respect to the operation of Clause 17, Section 8, Article I, of the Constitution
“The state governments may likewise lose all jurisdiction over places purchased by Congress, by the consent of the legislature of .the state, for the erection of forts, dock-yards, light-houses, hospitals, military academies, and other needful buildings. The question which has arisen on the subject was as to the effect of the proviso or reservation, usually annexed to the consent of the state, that all civil and criminal process, issued under the authority of the state, might be executed on the lands so ceded, in like manner as if the cession had not been made. This point was much discussed in the Circuit Court of the United States in Rhode Island, in the case of The United States v. Cornell. It was held that a purchase of lands within the jurisdiction of a state, with the consent of the state, for the national purposes contemplated by the Constitution, did, ipso facto, by the very terms of the Constitution, fall within the exclusive legislation of Congress, and that the state jurisdiction was completely ousted. * * *. The courts of the United States have sole and exclusive jurisdiction over an offense committed within a ceded place, notwithstanding the ordinary reservation of the right to execute civil and criminal process of the state. That was no reservation of any sovereignty or jurisdiction. * * *.
“It follows, as a consequence, from this doctrine of the federal courts, that state courts cannot take cognizance of any offences committed within such ceded districts; and, on the other hand, that the inhabitants of such places cannot exercise any civil or political privileges under the laws of the state, because they are not bound by those laws. This has been so decided in the state courts. * *
In 18 Am. Jur., Elections, Section 66, the text contains these statements: “Residence in a military reservation of the Federal Government will not give one a right to vote at a state election held in the county where the reservation is located. Similarly, where the land upon which an
In 29 C. J. S., Elections, Section 25, the statement is: “Since land which has been ceded by a state to the United States for the use of some department of the general government, without any reservation of jurisdiction except the right to serve civil and criminal process thereon, ceases to be a part of the state, * * *, such land ordinarily cannot become a voting residence in the state in which it is situated, until it is receded to the state by congress.”
In McCrary on Elections, 4th Edition, Section 89, the author uses this language: “Where a State has ceded a given tract of land to the United States for a navy yard, arsenal or the like, and where there is no reservation of jurisdiction to the State other than the right to serve civil and criminal process on such lands, persons who reside upon such lands do not acquire any elective franchise as inhabitants of such State.”
In Paine on Elections, Section 62, the text contains this statement: “Persons who reside upon land ceded by a state to the United States, as the site of an arsenal or navy yard, without reservation of jurisdiction beyond the right to serve civil and criminal process thereon, are not entitled to vote as inhabitants of the state.”
In the early but well considered and frequently cited case of Commonwealth v. Clary, 8 Mass. 72, decided in 1811, involving the question of jurisdiction of an offense committed on land in the town of Springfield, in the State of Massachusetts, purchased by the United States with the consent of the State for use in erecting arsenals, with the reservation that civil and criminal process could be served upon the land by officers of the State, the Supreme Judicial Court of Massachusetts held that the State could not take cognizance of such offense. In the opinion the court
In the leading case of Fort Leavenworth Railroad Company v. Lowe, 114 U. S. 525, 5 S. Ct. 995, 29 L. ed. 264, decided in 1885, cited but not followed in the majority opinion, the Supreme Court of the United States declared that when the United States acquired land within a State by purchase, with the consent of the Legislature of the State, for the erection of forts, magazines, arsenals, dockyards and other needful buildings, the Constitution of the United States confers exclusive jurisdiction upon the United States over the land so acquired. The land there involved was not acquired by purchase and the act of the Kansas Legislature ceding jurisdiction to the United States reserved to the State the right “to tax railroad, bridge, and other corporations, their franchises and property,” on the Fort Leavenworth Military Reservation. The court held that the terms of the act ceding jurisdiction governed the extent of the jurisdiction acquired by the United States and upheld the tax imposed by the State of Kansas; but in the opinion prepared by Justice Field the court used this language:
“The reservation which has usually accompanied the consent of the States that civil and criminal process of the State courts may be sérved in the places purchased, is not considered as interfering in any respect with the supremacy of the United States over them; but is admitted to prevent them from becoming an asylum for fugitives from justice.” After citing earlier authorities the Court also said: “These authorities are sufficient to support the proposition which follows naturally from the language of the Constitution, that no other legislative power than that of Congress can be exercised over lands within a State purchased by the United States with her consent for one of the purposes designated; and that such consent under the Constitution operates to exclude all other legislative authority.”
The Fort Leavenworth Railroad Company case has never been overruled or departed from by the Supreme Court of the United States despite its characterization in the majority opinion as one of the “older” cases but has been cited and followed by numerous state courts and by the Supreme Court of the United States in many of its subsequent decisions, particularly the cases of Surplus Trading Company v. Cook, 281 U. S. 647, 50 S. Ct. 455, 74 L. ed. 1091, decided in 1930, and United States v. Unzeuta, 281 U. S. 138, 50 S. Ct. 284, 74 L. ed. 761, also decided in 1930, both of which are cited, but neither of which is followed, in the majority opinion. In Surplus Trading
Other decisions of the Supreme Court of the United States, subsequent to the case of Fort Leavenworth Railroad Company v. Lowe, 114 U. S. 525, 5 S. Ct. 995, 29 L. ed. 264, which recognize and approve the principle of that case that when the United States acquires land within a State by purchase, with the consent of the Legislature of the State, accompanied with a reservation by the State of the right to execute civil and criminal process upon the land so acquired, the jurisdiction of the United States is exclusive of all State authority, are Standard Oil Company v. People of State of California, 291 U. S. 242, 54 S. Ct. 381, 78 L. ed. 775, decided in 1934, and Johnson v. Yellow Cab Transit Company, 321 U. S. 383, 64 S. Ct. 622, 88 L. ed. 814, decided in 1944. In the Standard Oil Com
Among the numerous decisions of appellate courts in many States which recognize or apply the same principle of exclusive jurisdiction of the United States over territory acquired by the consent of the State in which it is located are these cases: Arledge v. Mabry, 52 N. M. 303, 197 P. 2d 884, decided in 1948; Kiker v. City of Philadelphia, 346 Pa. 624, 31 A. 2d 289, decided in 1943, cited but not followed in the majority opinion; People v. Hillman, 246 N. Y. 467, 159 N. E. 400, decided in 1927; Farley v. Scherno, 208 N. Y. 269, 101 N. E. 891, 47 L. R. A., N. S., 1031, decided in 1913; Commonwealth v. King, 252 Ky. 699, 68 S. W. 2d 45, decided in 1934; Webb v. J. G. White Engineering Corporation, 204 Ala. 429, 85 So. 729, decided in 1920; Concessions Company v. Morris, 109 Wash. 46, 186 P. 655, decided in 1919; State ex rel. Jones v. Mack, 23 Nev. 359, 47 P. 763, 62 Am. St. Rep. 811, decided in 1897; Willis v. Oscar Daniels Company, 200 Mich. 19, 166 N. W. 496, decided in 1918; Anderson v. Chicago and Northwestern Railroad Company, 102 Neb. 578, 168 N. W. 196, decided in
In Kiker v. City of Philadelphia, 346 Pa. 624, 31 A. 2d 289, involving the question of the right of the city to impose a tax upon income received by a nonresident of Pennsylvania from his employment by the United States at the Philadelphia Navy Yard, and in which it was held that the city could impose such tax by virtue of an Act of Congress which receded that authority to the state, the opinion contains these statements:
“It is clear that since this Commonwealth granted to the United States government exclusive jurisdiction, without qualification or restriction, save as to the service of civil and criminal process and as to limitation upon the duration of the cession, the City of Philadelphia could not lawfully impose a tax upon income received by a nonresident from transactions occurring or services performed in the Federal Area of League Island (Standard Oil Company v. California, 291 U. S. 242), unless, of course, Congress can grant such consent. See United States v. City of Buffalo, 54 F. (2d) 471. It was originally supposed that a State, in granting consent to the Federal government to purchase territory upon which to erect forts, magazines, arsenals, dock-yards and other needful buildings, could not constitutionally qualify its consent, and that jurisdiction, under such circumstances, had to be exclusively in the United States government, on account of the provisions of Article I, Section 8, Clause 17 of the Constitution of the United States: United States v. Cornell, 2 Mason’s Reports (U. S. C. C.) 60; Fort Leavenworth R. R. Co. v. Lowe, 114 U. S. 525. However, it is now well settled that in granting consent to the Federal government a State can reserve to itself such jurisdiction (e. g. the right to impose taxes in the area in question) as will not interfere with the enjoyment by the government of
“It follows, therefore, that the Commonwealth of Pennsylvania, when it consented to the purchase of League Island by the National government and ceded jurisdiction over it, could have reserved to itself the right to tax in such area, even though the territory was acquired for use as a dock-yard, just as a number of States have done under similar circumstances with respect to land within their respective geographical limits. There can be no logical objection on constitutional grounds if the same result is accomplished by a recession to the State of the right to tax, should Congress see fit by this means to promote local efficiency, as it appears to us to have done in passing Public Act No. 819. Similar retrocessions to the States of the Union are not unusual. While any cession, or recession, of jurisdiction by one sovereignty to another requires an acceptance in order to render it effective (Yellowstone Park Transp. Co. v. Gallatin County, 31 F. (2d) 644); such acceptance will be presumed in the absence of a contrary intent (Mason Co. v. Tax Common., supra). No such contrary intent appears anywhere in the record in the instant case. ‘The States of the Union and the National Government may make mutually satisfactory arrangements as to jurisdiction of territory within their borders and thus in a most effective way, cooperatively adjust problems flowing from our dual system of government’: Collins v. Yosemite Park Co., 304 U. S. 518, 528”.
In the Kiker case the court recognized the principle of exclusive jurisdiction in the United States resulting from the purchase of the territory by the United States with the consent of the State with no reservation of the power to tax in that area but held that, by virtue of the Act of Congress of October 9, 1940, Public Act No. 819, 54 Stat. 1059, 4 U. S. C. A., Section 14, commonly known as the Buck Act, which provided by Section 2 that persons living or receiving income in a Federal area should not be re
In the opinion in Foley v. Shriver, 81 Va. 568, the Supreme Court of Virginia, after citing Fort Leavenworth Railroad Company v. Lowe, 114 U. S. 525, 5 S. Ct. 995, 29 L. ed. 264; United States v. Cornell, 2 Mason 60, Fed. Cas. No. 14,867; Commonwealth v. Clary, 8 Mass. 72; Mitchell v. Tibbetts, 17 Pick. (Mass.) 298, the opinion of the Justices of the Supreme Judicial Court of Massachusetts, 1 Metc. 580, and Sinks v. Reese, 19 Ohio St. 306, 2 Am. Rep. 397, uses this language: “From the foregoing cases it is clear that no other legislative power than that of congress can be exercised over lands within a State purchased by the United States with the consent of the State for one of the purposes designated and that such consent, under the constitution, operates to exclude all other legislative authority. If the United States has the right of exclusive legislation over the ceded lands, they also have the exclusive jurisdiction. The right of exclusive legislation gives exclusive jurisdiction. United States v. Cornell, supra, People v. Godfrey, 17 Johns. 225; 16 Opinions Attorney-General, 592. In this case, the State legislature having given the required consent, and the United States having purchased the land in question, the United States have acquired, under the Federal Constitution, exclusive jurisdiction over the ceded lands, and they are no longer a part of the State of Virginia and are not subject to the jurisdiction of the State courts. Persons residing there are not citizens of Virginia; the property situated there is not subject to the control or disposal of any State court, and the circuit court of Elizabeth City county is without jurisdiction within the said territory. The reservation in the act of cession of concurrent jurisdiction with the United States over the same piece or parcel of land, so that the courts, magistrates and officers of the State may
The specific question here under consideration with respect to the right of elective franchise of persons who reside upon land within a State purchased by the United States, with the consent of the Legislature of the State, for the erection of forts, magazines, arsenals, dockyards and other needful buildings, accompanied by the reservation by the State of the right to execute civil and criminal process in the area so purchased has been considered by “an unruffled current of authority” in several States and in each instance the claimed right to exercise such franchise by persons permanently residing in the territory so purchased by the United States has been denied. Miller v. Hickory Groves School Board, District No. 4, 162 Kan. 528, 178 P. 2d 214, decided in 1947; State ex rel. Parker v. Corcoran, 155 Kan. 714, 128 P. 2d 999, 142 A. L. R. 423, decided in 1942; Herken v. Glynn, 151 Kan. 855, 101 P. 2d 946, decided in 1940; State ex rel. Lyle v. Willett, 117 Tenn. 334, 97 S. W. 299, decided in 1906; McMahon v. Polk, 10 S. D. 296, 73 N. W. 77, 47 L. R. A. 830, decided in 1897; In re Town of Highlands, 48 N. Y. 795, 22 N. Y. Supp. 137, decided in 1892; and Sinks v. Reese, 19 Ohio St. 306, 2 Am. Rep. 397, decided in 1869. See also Arledge v. Mabry, 52 N. M. 303, 197 P. 2d 884, in which the Court, referring to the question of the exercise of the elective franchise by persons residing upon territory acquired by the United States in the manner provided by the Constitution of the United States, used this language: “However, there are several precedents in the books where that issue was
In McMahon v. Polk, 10 S. D. 296, 73 N. W. 77, 47 L. R. A. 830, also cited but not followed in the majority opinion, the Supreme Court of South Dakota held that a person, not in the army or the navy, can not, by long and continuous residence within the boundaries of a reservation jurisdiction over which is ceded to the United States, acquire the right to vote at a state election in the county in which the reservation is situated; and in the opinion said: “The vote of R. W. Wells, cast at Sturgis precinct for appellant, was rejected by the court as illegal and void upon the ground that said Wells was a nonresident of the precinct, having his place of abode within the military reservation of Ft. Meade; and to this point our attention is directed by the first assignment of error. By the fifth subdivision of Section 18, Art. 26, of the Constitution, jurisdiction over the military reservation of Ft. Meade is surrendered to the United States without reservation other than the right to serve legal process in certain cases; and the question presented by the record is whether a person in no way connected with the army or navy may, by long and continuous residence within the boundaries of the reservation thus ceded, acquire the right to vote at an election held in the county where the same is situated, pursuant to the law of the state. In his Commentaries on the Constitution (Sec. 1227), Judge Story, in treating the eighth section of the first article of the Constitution authorizing congress to exercise exclusive legislative power over military reservations obtained by the consent of the state in which the same are situated, says: ‘The inhabitants of those places cease to be inhabitants of the state, and can no longer exercise any civil or political rights under the laws of the state.’ The doctrine resting upon and sustained by an unruffled current of authority seems to be that all political powers and jurisdiction over a military reservation, not expressly retained by the state,
In the frequently cited case of Sinks v. Reese, 19 Ohio St. 306, 2 Am. Rep. 397, involving the question whether inmates of a National A|sylum for Disabled Volunteer Soldiers, established by act of Congress upon land within the State of Ohio acquired by the United States with the consent of the Legislature of the State, were entitled to vote at an election held in the county in which the asylum was situated, the Supreme Court of Ohio held that the asylum was a needful building within the constitutional provision permitting the United States to acquire land, that the United States had exclusive jurisdiction over the land, and that the inmates of the asylum were not residents of the State and for that reason were not entitled to vote at the election. In the opinion, with respect to the act of the Legislature consenting to the establishment of the asylum, the court said: “This act of the State Legislature, consenting to the establishment of the asylum within her borders, and ceding ‘jurisdiction of the lands and appurtenances’ of the asylum to the United States, under the operation of the clauses of the eighth section of the first article of the Constitution of the United States above referred to, fixes the exclusive jurisdiction of the general government over this institution, its lands and its inmates, ‘in all cases whatsoever,’ except as to the execution of process issuing under State authority.” The opinion also contains these expressions: “This leads us to consider what is the legal status of persons who become residents upon the grounds, and within the limits of the institution thus within the exclusive jurisdiction of the United States; and how does it affect their claim to exercise the elective franchise in Ohio, under its constitution and laws? In passing on these questions, there is little need of speculative reasoning; for they have been in effect settled by repeated decisions of courts of high and
To the same effect as the Sinks case is the holding of the Supreme Court of Tennessee in State ex rel. Lyle v. Willett, 117 Tenn. 334, 97 S. W. 299, in which that court said: “If, as we have held, and as controlling authorities elsewhere hold, the United States has exclusive jurisdiction over the land on which the Soldiers’ Home in question was erected, then the residents in that home are nonresidents of the State of Tennessee, and cannot fall within the requirements for legal voters laid down by our constitution.”
In re Town of Highlands, 48 N. Y. 795, 22 N. Y. Supp. 137, the Supreme Court of New York held that, as the State of New York had ceded to the United States the territory comprising the West Point reservation and reserved no jurisdiction except the right to execute process in the ceded territory, that territory was not subject to
In Herken v. Glynn, 151 Kan. 855, 101 P. 2d 946, the opinion states that: “No case has been found where it has been held that residents on lands ceded by a state to the United States retained or acquired a right to vote as residents of the ceding state.” The quoted passage is presently pertinent for it is significant that the majority opinion neither cites nor refers to an opinion in any case by any appellate court of last resort in any jurisdiction which holds that a permanent resident upon land purchased by the United States, with the consent of the State in which it is situated, accompanied merely with a reservation by the State of the right to serve civil and criminal process in the purchased territory, has the right to vote at any election held under the laws of such State. Though the case of Arapajolu v. McMenamin, 113 Cal. App. 2d 824, 249 P. 2d 318, 34 A. L. R. 2d 1185, decided by a California District Court of Appeal in 1952, cited in the majority opinion, holds that residents of a United States military reservation were entitled to vote at elections conducted under the laws of the State of California, the opinion does not disclose the manner in which the area was acquired by the United States or what reservations accompanied the acquisition of the territory by the United States, and the holding of the district appellate court can not be said to be final or persuasive authority applicable to residents of the Naval Reservation here involved which was purchased by the United States with the consent of this State without reservation of any jurisdiction or authority except the right to execute civil and criminal process in the purchased area.
From the foregoing authorities it is clear that when the United States purchased the Naval Reservation by virtue of the consent given for that purpose by the Legislature of this State by Section 4 of Chapter 5, Acts of 1917, Second Extraordinary Session, and the Legislature
Proper application of the foregoing firmly established principles of law impels the conclusion that this State by the enactment of Section 4, Chapter 5, Acts of the Legislature, 1917, Second Extraordinary Session, consenting to the purchase of the area used by the United States for the Naval Reservation, with only a prior reservation of the right to serve civil and criminal process upon the land so purchased, resulted in the acquisition by the United States of exclusive jurisdiction over the purchased territory under Clause 17, Section 8, Article I of the Federal Constitution; that this State could have effectively reserved, by the Act of 1917, as it did by the later statute, Section 3, Chapter 1, Code, 1931, concurrent
The confusion in thé reasoning and the fallacy in the conclusion reached in the majority opinion result from
James v. Dravo Contracting Company, 302 U. S. 134, 58 S. Ct. 208, 82 L. ed. 155, 114 A. L. R. 318, decided December 6, 1937, and Carnegie-lllinois Steel Corporation v. Alderson, 127 W. Va. 807, 34 S. E. 2d 737, decided in 1945, certiorari denied 326 U. S. 764, 66 S. Ct. 146, 90 L. ed. 460, cited and discussed in the majority opinion, have no present application except to the extent that the opinion in the James case states that “Clause 17 governs those cases where the United States acquires lands with the consent of the Legislature of the State for the purpose there described.”; and to that extent that case supports my contention that the consent given by the Act of 1917 to the purchase of the land comprising the Naval Reservation conferred exclusive jurisdiction over it upon the United States when the land was acquired by such purchase. In Silas Mason Company v. Tax Commission of State of Washington, 302 U. S. 186, 58 S. Ct. 233, 82 L. ed. 187, decided December 6, 1937, also cited and discussed in the majority opinion, the facts and the provisions of the Acts of Congress and of the Statute of the State of Washington involved in that case, the specific and limited purposes for which the territory in question was acquired by the United States, which related chiefly to the improvement of the rivers and the harbors of that State and the development of irrigation and industrial power, and the clearly disclosed intent of the United States and of the State of Washington, as determined by the Supreme Court of that State, that the jurisdiction of the United States over the territory acquired should not be exclusive,
As the majority opinion concedes, the land involved in the James case was obtained by the United States under the later statute of 1931 by which this State reserved concurrent jurisdiction over the land acquired by the United States, and the Court in upholding a tax imposed by a statute of this State, upon the gross income derived from business and other activities conducted within its borders based its holding upon the reservation by the State of concurrent jurisdiction over the land in question and sustained the validity of the reservation of such jurisdiction and its effectiveness for the purpose of permitting the imposition of the tax upon the income derived from business and other activities within the territorial limits of this State. In the James case, however, the prior Act of 1917, the only applicable statute involved in this proceeding, was not considered, interpreted, applied or even mentioned by the Court.
In the Carnegie-Illinois Steel Corporation case, which involved the validity of a state occupational tax upon certain business activities conducted upon this same South Charleston Naval Reservation, the tax was upheld by virtue of the recession by the United States under the Buck Act, Public Act No. 819, 54 Stat. 1059, 4 U. S. C. A., Section 14, to this State, of the jurisdiction to impose the tax. On that point this Court held, in point 1 of the syllabus, that: “The Act of Congress officially referred to as Public Act No. 819 deprives persons engaged in business the operations of which are located upon a reservation owned by the United States Government of immunity from the provisions of a statute of the State of West Virginia imposing an occupational tax, the claim of immunity
The passage of the Apts of Congress mentioned in the majority opinion authorizing state action relating to the respective subjects dealt with in those statutes is indicative of the long standing general recognition of the principle that when the United States acquires, by purchase or cession, territory within the borders of a State for any of the purposes designated in Clause 17, Section 8, Article I of the Federal Constitution, with the consent of the State without reservation of jurisdiction by the State except the right to execute, civil and criminal process by the State in the territory so acquired by the United States, the jurisdiction of the United States over such territory is exclusive. If this were not so there would have been no reason or necessity for the enactment of any of the Federal statutes referred to in the majority opinion. The enactment of such legislation is necessarily based on the assumption that the particular jurisdiction ceded in each instance was vested in and possessed by the United States at and until the time of its recession to the ceding State by the various Acts of Congress.
The statement in the majority opinion to the effect that as the defendant Londeree would be subject to a state tax permitted by the Buck Act, if he is not entitled to vote, he would be subjected to taxation without representation, is entirely inapplicable to his status as a resident of the Naval Reservation who, having voluntarily assumed that status, is not entitled to vote at an election held under the laws of this State. The principle or the maxim of taxation without representation does not apply to the defendant Londeree as a permanent resident of the Naval Reservation just as it does not apply to permanent residents of the District of Columbia who, as a matter of common knowledge, are subject to many types of taxation, but who, as such residents, do not have the right to exercise the elective franchise in the District or in any State of the Union of which they may have been former resi
The statement of the majority with respect to the loss by the defendant Londeree and “a large number of citizens” of the right to vote at elections held in this State by reason of their permanent residence upon the Naval Reservation is not of important or controlling force in the proper determination of the jurisdictional questions presented in this proceeding. If the status of the defendant Londeree, at the time he filed his certificate as a candidate for nomination for the office of mayor was that of a permanent resident of the Naval Reservation, that status was not enforced or placed upon him by compulsion of the United States in purchasing the land on which the Naval Reservation is located or of this State in consenting to such purchase by the Act of 1917 without reservation of jurisdiction with respect to elections under its laws. That status did not arise by virtue of the acquisition of exclusive jurisdiction by the United States over the Naval Reservation but in fact resulted from the free act of the defendant Londeree in becoming a resident of the reservation by voluntarily making it his permanent place of abode. Neither he nor any other person was required by any constitutional or statutory provision to reside upon the reservation. His permanent residence in that area was his own voluntary act; and it is not the province of this Court to disregard or nullify the well established legal effect of the free choice of the defendant Londeree in selecting the Naval Reservation as his permanent place of residence.
