*1 we had Whether in Sanchez case statutory, common
reference to our or the carrier,” it is
law definition of “common not a com- appellee The
immaterial. sense. He was mere-
mon carrier either held
ly a carrier as Wash- contract
ington court. judgment of the district court is re- to the district cause remanded
versed and proceed instructions to with its
court with inconsistent
trial herewith.
It is so Ordered. SADLER, McGHEE
LUJAN,
COMPTON, JJ., concur.
197 P.2d MABRY, Governor, al. et
ARLEDGE 5144.
No.
Supreme Court of Mexico.
Sept. Sept. 27, 1948.
Rehearing Denied *2 Hannett,
A. T. H. O. Waggoner, and Stanley Miller, P.W. Albuquerque, all of *3 Robert Ward, Lovington, W. for in- formant. McCulloh, Atty.
C. Gen., C. respond- for ents. Chase,
Adams & Threet, Martin A. Harry Morris, O. all Albuquerque, for (Danny) D. A. Macpherson, real party in interest.
D. Macpherson, A. of Albuquerque, pro se. Grantham,
Everett M. Atty., U. S. Fe, Santa amicus curiae.
SADLER, Justice. primary question The for decision is portion that whether of Precinct No. 17 County, in Sandoval through proceedings condemnation 306' designated count of the ballots in certain popularly incorporated what into precincts three the “in divisions of Project,
known as meaning comprising of counties the Second true Mexico” Judicial District, candi- by the the vote received Constitu New Mexico Art. of the votes, mentioned, of the elec after recount an dates defining qualifications of tion respective Boards for retabulated at all elections was tor to vote entitled Commissioners, Incidentally, acting as coun- right County public officers. portions ty result dis- canvassing of the boards. The of other vote of residents majority Project previous Informant’s Los Alamos closed comprising votes and a of 78 majority as affected overcome No. lying within Precinct opponent. in favor his for from accumulated acquisition use fact of its domain, will be discuss areas primary corrected elec result of the The And, for finally, but determined. ed and tion for for nomination democratic event of a hold only in the determination mentioned been certified having office portion of said ing composed Canvassing State Board “in acquired through condemnation is Secretary Governor, Chief Justice contemplation New Mexico” within State, the officers were about to named mentioned, whether provision constitutional Board, Canvassing re- the State meet as polling at which all of an election conduct the nomi canvass the amended returns for precinct are located in the places for the involved, nation Informant had and as area, invalidates election. condemned believe, good cancel Informant’s reason issue certificate of nomination and another questions of a be arise out contest The. Thereupon, one Arledge, rival candidate. to his Deacon the Inform tween R. F. applied “Danny” Informant to this Court for a writ Macpherson, his ant, D. A. against the above primary mandamus named rival candidates opponent, officers, composing an ex-officio democratic election June n capacity Canvassing Board, State Judge for the office of nomination respondents, to recan them the Second Dis Court of District commanding Judicial o,f Informant, returns the office Secre trict, ap vass the Division No. 2. *4 mentioned, tary State nomination face of of returns to pearing larger votes, resulting the amended returns employing number received the of have recount, omitting but and the nominee from exclud declared to be State was all ing and a therefrom returns from Canvassing Board certificate of nomi Thereafter, in Precinct to him. No. 17 of duly was issued Sandoval nation divisions argeed requested County. that if having a re- It candidates returns both
307 Title ignored, said be the Inform- to an comprising area acres- 172.90 ant is within rightfully acquired to certificate by' entitled Precinct No. 17 was th.e States, of nomination he the United together now holds. We large; with a in; quantity authorized an additional land, issuance of alternative writ of from Mexico and the matter 1848 under now is before us on the Treaty terms of of Guadalupe writ answer with all to Hidalgo, and facts essential 9 Stat. 922. It thus stipulation a decision covered written became a part of domain filed enjoyed herein. that character January when on 37 Stat. New Mexico was only It could result in confusion to admitted into the Union sovereign aas opinion endeavor detail in this the vari- state. It came immediately under admin steps by ous the United States ac- .which Department istration of the of the Interior quired title to the lands embraced in following -acquisition its and in 1905 this County, Precinct No. 17 of Sandovai New tract, along lands, with other estab was Hence, basic, only Mexico. ultimate lished as a forest Subsequently, reserve. touching phase facts the case this of and in 1905 the administration of re forest deemed essential to our decision will be by congress serves was transferred say stated. Los Suffice it Department Agriculture. This tract re Project Energy Alamos Atomic mained part the national forest land, part- Commission is a tract of located reserves, incorporated finally being into ly in County partly Sandoval in Santa and becoming part of Santa Fe National County, Mexico, ap- Fe containing New Forest. It when custody, 68,991.30 proximately acres. Title to all occupancy lands, use and other this land is held by agreement governmental between de custody America with use of the land passed, first, partments Corps Engi Energy in United Atomic Commis- Army finally, and, neers of United States ion, agency government. an Pre- n byExecutive Order No. 9816 Pres Alamos) (Los Sandoval cinct No. Coun- note, ident, 42 U.S.C.A. under au Mexico, ty, a tract land within the Atomic thority Energy Act of Project Atomic Congress, Law 79th Public U.S. seq., custody, into the approx- It et man Energy Commission. contains C.A. § wholly agement and control of Energy and lies Atomic imately 580.29 acres n Commission. title, stood County, New Mexico. So control Sandoval Title tract of management of said 172.90 parcels tract was of this different material this case. all times different government ways. acres by the two *5 1, 1940, conclusively presumed acquired it shall be title to The United States jurisdiction accepted, been No. 17 no such has Precinct 407.39 remaining acres Secretary No- under 18, condemnation of War date 1943, through on June 19, 1943, by letter Alamos vember against addressed proceedings instituted Dempsey, then in the Honorable Gov- School, corporation, Inc., Ranch John J. Fe, gave Dis- Mexico, ernor New at Santa for the United District Court lands, along accept- the United States was trict Mexico. notice that of New These accept juris- condem- did exclusive ing thereby with included and others same by acquired acquired by proceeding, diction over all lands nation were De- military purposes of the War within the of New United States behalf on immediately the Mexico, had partment title to theretofore and which devoted States, custody Manhat- over which assigned to the in the United and use vested Engineers jurisdiction had not theretofore Corps District tan exclusive Dec- from the Army. Thereafter This letter Secre- been obtained. 1946, Executive 31, gave same that: by ember War further notice tary above, 9816, mentioned Order No. accepted jurisdiction also “Exclusive under au- of the United States President public from reserved lands over all 1946, thority Act Energy of Atomic military purposes, over which domain for acres, with along 407.39 transferred has heretofore jurisdiction not been owned property, personal, real or all other obtained.” custody or control of possession, inor District, War De- Engineer Manhattan 21, Subsequently, August under date of Energy Commis- partment, Atomic 1944, Secretary War addressed title, control was status sion. Such letter Honorable to the another John J. tract of said of 407.39 management Mexico, Dempsey, Governor of proceed- to this material acres at all times Fe, referring his letter Novem- Santa ing. 1943, to another letter of identi- 19, ber Secretary 355, Gov- provided language cal from Rev. having
It been § August February Stat., Dempsey the Act of ernor dated amended give a August purporting 21st letter of the'act of Oct- 54 Stat. military reservations over which all 40 U.'S.C.A. list of Stat. ober had been effect, federal ac- unless the exclusive 255, in and until acquired lands jurisdiction cepted, “comprising accepted has and/or public domain of Au- reserved any or in which inter- from gust 8, 1944.” Included list acquired after submitted February been shall have est
30Sf Range” in- “Los Demolition cede exclusive over land County, Sandoval embraces reserved domain for mili- county. tary purposes, lands of Precinct No. 17 excepting said lands so reserved Wingate Military Fort Reservation Secretary ¡by It was later discovered *6 and the Fort Target Bliss Range, it was War of that he in had made an error com- not the of Department intention to in- which piling list of lands over clude in the list such reservations. There- accepted ju- and claimed exclusive fore, in records, order correct your there Accordingly, of risdiction. under date prepared has been and is inclosed newa September 7, 1944, he addressed another military list of reservations in the State Dempsey, letter the Honorable John J. New wholly Mexico are part or in Fe, Mexico, Governor of Santa New under jurisdiction the exclusive of the reading: United States. my “Reference is letter of made Au- 21, gust 1944, furnishing military a list “It regretted previous list of New reservations State Mexico you furnished included lands over which acquired comprising lands or reserved exclusive had been ob- public 8, from the August domain as of tained.” Each of the ballot boxes in use at said “Exclusive has been obtained primary election on in Pre- June over all land in the State of New Mexico cinct No. 17 of County, Sandoval con- acquired simple by fee ¡ballots by persons tained cast who resided military purposes prior 8, to August within the (public National Forest Area condemnation, purchase, by or dona- They lands) precinct. domain within said
tion; apart over all also lands set from also contained by persons ballots cast who public domain Fort Wingate (cid:127)resided on lands within the Condemned Military Reservation and the Fort Bliss precinct, Area within the some of whom Target Range. Mexico, were of New residents residing on
“It has discovered that compiling been precinct, prior now within such to the the list furnished letter of August with the time title Condemned Area within military reservations, certain acquired in such by the United Wingate prior Fort addition and Bliss Fort States and to the date that the letters Target Range, were included which from the Secretary con- War to the Govern- entirely Mexico, sisted domain to, land. Since of New referred above were the laws the State New Mexico written or received. do approximately located inhabitants portion
A lands contained of the part partly' upon acquired by Project, including lands Los exclusively private own- from by condemnation Precinct No. devoted sep- ers, with- purposes, being partly upon previously and lands scientific technical and community other area and residential national Certain arated forest. parts persons by reside on munici- project. frequently performed No functions pal tech- corporations, protection, to scientific as fire the area devoted service, electric, utility sew- purposes none of gas nical water and disposal, collection, located and other primary age election were places garbage in the employed places matters, polling are at conducted present All of the there. un- Company, corporation Zia chartered election of primary June Mexico, having the residential its der the laws were located Alamos, Alamos, principal place town business' areas at Los business condemnation, operating plus fixed fee under a cost States, executed contract with the United aforesaid. under the administration of Precinct No. area within The condemned Op- manager’s Santa Fe Directed office of *7 S. Government acquired by the U. 17 was erations, Energy S. Commission. U. Atomic Army in 1943 States for community, Alamos known as Los This engaged States was United when the time County, Precinct Sandoval and as No. election and the time said At in war. area, larger which is within a all of is time, operated by the is present .at the guarded by guards in uniform em- armed pur for Energy Commission Atomic ployed by Commission, Energy the Atomic community and admin providing pose of passes required are enter. and for op with in connection facilities istrative larger area there are this other Within designated as “Los project eration areas for which additional restricted an operated in turn Project,” which is Alamos pass required enter. Passes are is purposes set forth of the or more for one persons having granted business 1801 to Chapter Title §§ desiring persons precinct, or to visit said U.S.C.A., inclusive, Executive Order and there. Government does who reside President of the signed No. (except insofar as is interfere neces- America dated December reasons and sary security for is consistent 31, 1946. position owner) as land with with its community, by per- either (Los Alamos), conduct No. 17 Sandoval Precinct reside within Precinct No. unincorporated community sons 17 or who County, an not, matters as the those who do Concessionaires operating busi- various insurance, enterprises and following: sale ness sale within Precinct No. 17 and newspapers, and the con- distribution of therein, condemned area returned political campaigns. assessment, ducting of for and county assessor of Sandoval County assessed for taxation Persons in Precinct in- residing No. during year 1948, personal prop- their cluding those who reside on condemned erty used in connection with said busi- area therein and who voted Dem- nesses. ocratic election primary on June With the foregoing mind, facts in we paid "have at all times material hereto seek first an answer to ques- the primary borne incidence of New income Mexico propounded tion at the outset opin- of this (cid:127)taxes, taxes, gasoline and tobacco sales ion, namely, whether portion of Pre- taxes; they Mexico have obtained New cinct No. County, Sandoval private plates license their automobiles for ¡bythe United through condemnation hunting licenses. fishing resident proceedings incorporated into deputy registrar A of the Bureau of Vital Project, is “in New Mexico” with- precinct within the Statistics has an office in the meaning of Art. the" reports deaths therein births Mexico constitution defining qualifica- Vital Statis- New Mexico Bureau of tions of an elector entitled to vote at all tics; they marriage obtain licenses elections for officers. If we could County County Clerk Sandoval give an affirmative answer to primary marriages said No. conducted in Precinct question, answers to the other two which A United States holds Commissioner put were along one, with this would follow building court outside as a matter of However, course. may we immediately located outside of the main easily not so resolve our labors. Control- gate project and tries involv- cases precedents, ling affording unanimity of committed within the ing federal offenses judicial opinion seldom encountered, con- precinct. This commissioner does not at- negative vince us that a answer to the any tempt to laws enforce within the primary question submitted called for. precinct. parties far to this So There stipulation informed, principal are three are there have been meth *8 the United prosecutions by may no state officials ods which ac for viola- quire within a First, land state. the tions state laws committed within the meth of known precinct, parties method, od the constitutional nor do the have hereto 8, provided by 17, 1, Clause knowledge of Art. of the any the occurrence § of such Second, by purchase federal constitution. violations. 312 purchased by Legisla- of the the state. Consent consent of obtaining
without gov ture in the Same shall Third, acquired by the of the State the land state, be, Forts, Magazines, Erection of property ernment was the Arsenals, Dock-Yards, toy by the acquisition and other needful being a cession such Buildings.” government to the federal state R.R. Fort Leavenworth nature gift. of a whereby statute The New con- Mexico 995, 525, Lowe, 5 S.Ct. Co. v. U.S. given sent was to’the to ac- United States Lowe, 264; 150 Md. L.Ed. Lowe v. any quire land in New under the Mexico con Different A. 46 A.L.R. quoted of the federal constitution clause under acquisition sequences follow pur- other above for for arsenals and -sites acquisition When permitted. three means L.1912, poses in 1912 as c. enacted method, ordi constitutional made in the portions material this con- thereof pur all jurisdiction for narily exclusive troversy, reading: attaches poses over “The New Mexi- consent of state of with the government, federal favor hereby given, co with the accordance aright in the state exception single clause, section, eighth seventeenth of the process through its criminal civil and serve first article Constitution Unit- acts and relating to such officers on land acquisition by ed States to This concur such land. outside offenses States, by purchase, condemnation, or usually is recited right in the rent state otherwise, any required this land passed by legislature of cession acts custom-houses, -court-houses, for sites for We have lies. in which the the state post-offices, arsenals, other build- re state which will be act in this such an any ings whatever, or for other purposes presently. ferred government. provision mentioned, The constitutional any “Exclusive in and over cl. giving con- is U.S.Const.Art. acquired by land! so the United States things: among power, other gress be, hereby, shall same is -the- ceded to- purposes Legislation except in all all “To exercise exclusive whatsoever, all (not over such District the service civil sites Cases process may, by criminal -the exceeding square) as courts ten Miles state; States, Ac- but particular ceded shall Cession Congress, longer become continue no than ceptance of the Seat of States, Comp. of the United and shall own such lands.” Government thé §§ exercise, Authority all Places 8-202 8-203. like
31B People Hillman, 467, 159 con v. 246 States N.Y. Although the United 400, N.E. accused quoted, mentions held that an stitution, was in the clause charged alleged robbery 'been with have long it has a to acquisition -purchase, consequences through -attach been road committed on a settled that the same land West Point was not standpoint Military Reservation jurisdictional from a subject pro prosecution courts. acquired through condemnation the state 699, King, Ky. In 68 Indeed, Commonwealth 252 acquired is v. ceedings. land so 45, ju county S.W.2d court was denied by purchase a to have been secured deemed charged risdiction to a bank official consequences try Kohl same attach. and the 449; with making false the books States, 367, entries L.Ed. v. United 91 U.S. 23 a Mil bank Knox States, operating on Ft. Lumber 261 Hanson Co. v. United itary Lowe, Reservation. In su 442, 809; Lowe v. 581, 43 Unit U.S. S.Ct. 67 L.Ed. pra, Supreme Maryland held Co., Cir., Court of F.2d ed States Becktold 8 129 v. plaintiff suit, only that in a divorce 473; Beaty, D.C., United States v. 198 claim to residence of domi 284; being the fact F. United v. 2.74 Acres of military reservation, cile on not Land, D.C., Furthermore, could F.Supp. 32 -requirement meet the -statutory of resi employed legislation” term “exclusive dence in maintaining -the state essential to federal Clause 17 of the constitu said -his action. synomymous tion held with and to be meaning carry as if the term the same People In Standard Oil Co. v. of State employed. jurisdiction” had been “exclusive 242, 381, of California, 291 U.S. 54 S.Ct. Lowe, R. su Co. v. Fort Leavenworth R. 383, 775, 78 L.Ed. the court ruled that Cook, Surplus Trading Company
pra;
v.
gasoline
Military
sold
Presidio
on the
Res-
1091;
647, 50
74 L.Ed.
U.S.
S.Ct.
subject
ervation
tax. The court
was
Co.,
Contracting
Dravo
302 U.S.
v.
James
said:
208, 82 L.Ed.
114 A.L.R.
134, 58 S.Ct.
effectively
legislate
“A
con-
state cannot
Morrill,
318;
20 Cal.2d
v.
Johnson
-beyond
her
matters
cerning
P.2d 873.
territory subject only
control
and within
situations,
variety
In a
other than
by the United States.”
right
residents of
involving
-of
Yellow Cab
In
ca-se of
-the
the elective fran-
ceded
to exercise
Johnson
Co.,
321 U.S.
S.Ct.
Transit
chise,
and federal courts have
both state
perhaps
expres-
latest
88 L.Ed.
held
Supreme
Court
by the
sion
complete,
-as -the selected
to be full
subject, it
held
seizure
was
instance, on the
“exclusive”,
For
word,
implies.
Oklahoma,
the gov-
en-
The status oí
over which
by state
City,
Oklahoma
States,
liquor
by cession
shipment
ernment
forcement officers
Illinois,
state,
juris-
from a
Louis,
exclusive
has
East St.
enroute from
Sill, diction, except
right
consignee, at Ft.
Club,
for concurrent
Officers
return to
relation
Oklahoma,
illegal
process
and its
serve civil
criminal
*10
ground
originating
The basic
and causes
action
ordered.
offenses
of
the carrier was
jurisdiction in
by the
lands,
exclusive
outside such
well stated
of
was
decision
Military
cases,
Ft.
following
over
Sill
in the
to-wit:
courts
Co.,
518,
Collins v. Yosemite Park
304 U.S.
Reservation.
1009,
1502,
58
Yellow-
S.Ct.
82
L.Ed.
represent cases
foregoing citations
The
Transportation
stone Park
Co. v. Gallatin
jurisdiction in
United
the
where exclusive
Cir.,
County, 9
ed
did not
v.
involved
of New Mexico
already
Surplus Trading Co.
here
residents
not
own.
455,
L.Ed. within
647,
S.Ct.
-the constitutional sense. Sinks v.
Cook, 281
50
74
U.S.
Reese,
Am.Rep.
306,
1091;
Bloomfield Grav
19 Ohio St.
2
North
Woodruff v.
In this
court
case the
said:
(C.C.)
'cinct meets the constitutional
state,
intendment,
legal
outside
Hence,
voting.
particular
validity
fatal to
-of the election.
voters
primary
-in
many
cast
said
votes
election,
in the
participating
some of whom
portion
of this
election
residents
without -doubt were
fide
bona
residents and
other-
precinct by electors
lands
qualified
Mexico,
not,
electors in New
did
been received
qualified
wise
should have
within the true meaning of state Const.
counted,
legally cast.
if
1,
7,
personally appear and
Art.
cast
§
precinct
final
brings
This
the third and
their ballots
their
us
resi
question, viz.,
holding
Lujan,
the effect
dence “in New
Chase v.
Mexico.”
261,
within 48
149
election
the condemned
P.2d 1003. There
N.M.
are
shown,
precinct.
already
holding
cases
As
that under certain
few
exclusive
an
was under
conditions
election held outside the
residence,
States, except
-right
serve
voter’s
although
process
state,
thereon civil and -criminal
will
inside the
not be
in
declared
effect,
legal
426,
People Graham,
In
the case
267
state courts.
valid.
v.
Ill.
108
699, Ann.Cas.1916C, 391,
not different from what it would have been
N.E.
Smith
Hackett,
73,
had -been
129
polling places
if the
and v.
Md.
319 Hildreth, 26 that the we Cal. more conclusions have reached are or one approvingly indulged previous them. These not to are cases cited be view of the reaching holdings Tenorio, conclu- this court and relied in Tenorio v. supra, Lujan, sion we did v. N.M. in Chase P.2d and State v. Scheier, Mimms, Thompson earlier case of N.M. P.2d 993. We 293, holding 40 N.M. uncon- 57 P.2d do not consider that the decisions reached *14 absentee in permitting stitutional controlling. the law .those are cases In the voting. Tenorio case we were dealing with the of status Pueblo Indian lands in relation permitting such Even in those states question to pur the of “residence” for voting, in order avoid constitutional to poses of a divorce suit. We noted the barriers, cast in the ballot is deemed difference between their status for and counted— precinct where canvassed purpose acquired indicated property There is voter’s residence. that of the in the constitutional this some indulging no for ground here method when pur viewed for the same ballots were theory what since the fictional pose. 89, We said N.M. 98 P.2d [44 842]: outside, any counted cast, cánvassed “The status of Indian the Pueblo supply able basis New Mexico to area in different from that of United And, in view of for voting residence. a property in the ‘constitutional Scheier, Thompson in v. holdings our majority opinion method’ mentioned in the supra, and Lujan, Baca supra; Chase v. Lowe, in Lowe that we do not deem v. 320, 435, P.2d that Ortiz, 40 N.M. v. involved, question the case decisive of authorize purporting to a statute prepared even if were affirm its we to presence through personal otherwise than correctness, .conclusion be slow a we should of residence in voter his study to further in view announce without invalid, was it seem New Mexico would in persuasive reasoning of and forceful hold anomalous to that the same somewhat precedents employed by Chief Bond Justice lawfully author thing the statute could not majority his dissent from view.” ize, purported done without approval, seemingly pro tentative statute, given authority a will be be, dissenting though given visional legality. It there badge follows in Lowe views v. of Chief Bond Justice election for Precinct primary No. was no quotation supra, Lowe, referred County on 17 in Sandoval June course, qualified is, above to be next say and hold in respondents today the case well as coun- what we Counsel for as appearing strongly us. argue amicus curiae before sel more, pre- U.S.Const. Art. without Mimms, supra, cl. v. §
The case State stipu- necessarily question not does conclude It was a puzzle. a more of sents ipso facto, jurisdiction, whether exclusive land involved that the in the case lated fact passes acquired for with runs the en the cession. So Elephant was Butte Dam argument Art. counsel. pursuant gaging Informant’s purposes reclamation They It cite Co. v. rely constitution. Silas Mason federal on cl. stipu- Washington, a containing such Tax Commission a record State defendant, 187; trying that the court U.S. 58 S.Ct. 82 L.Ed. lation judgment, Co., supra, its reviewing Contracting v. this court Dravo James curiae Morrill, amicus supra. case. Counsel decided the v. Johnson us, however, perhaps be fact reminds We will not decide the issue between having the lands judicially, noticed them. cor having State Mimms been Treaty under the the United States come to rectly fact under the true decided Hidalgo, Guadalupe fall did not involved, no character of the we have cession purview the consent hesitancy should decline saying we Nevertheless, says, it he must statute. correctly give it whether stare decisis effect the case on rec- be was tried assumed fact, inad determined or false viewed, he and ord before court. So stipulated vertantly true. So consid be respondents as find in counsel well ered, pass our decision we effect position. precedent of their it a in favor *15 the Mimms case. analysis support their the case They of that, acquired if by vigorous the contention :by are of sev- We reminded counsel the by under federal constitu- condemnation jurisdiction by eral exercised the acts of mentioned, juris- provision exclusive tional 17, Los state the in Precinct No. on lands government passed the immedi- diction in Project, jurisdic- the as statute, ately by virtue the consent of tion in the United has held to been Nevertheless, we by argued Informant. out, They point stipu- be exclusive. the jurisdiction the upheld state. concurrent disclose, facts that residents lated of hand, Alamos, including those who voted other counsel for Inform- On the determined, election, pay correctly primary case the say or bear ant this taxes, New Mexico stipulated fact manner incidence of income on as to even taxes, purpose acquisition gasoline of acquisition. sales taxes tobacco of taxes; cost-plus promote government’s pro- that cost and fixed fee being to reclamation, doing government contractors gram mere fact that work condemnation, acquired by are on the condemned area within under Precinct
321 Compensation was carry special No. 17 introduced Workmen’s recent ses- sion congress of the Mexico Com- insurance under and never reached floor statute; pensation on consideration due as to certain to the shortness of the things according question legis- other done session. The acts and is a lative Most, all, and, one although strong state law. not of the however our wish njatters done, that being stipulated as community might are ex- residents of this enjoy franchise, pressly congressional by may authorized acts elective not we represent properly further by a recession to the state desire an act of judicial legislation. part jurisdiction government on the particulars in the indicated. See what The conclusion that residents Act, 4 known as the Buck Ü.S.C.A. 104to §§ may condemned area in Precinct No. 17 authority apply gas- states giving enjoy not franchise, the elective based on taxes, sales, oline use and income taxes there, residence does not necessarily mean areas; 25, 1936, federal also Act of June they possess right do not to vote else- purport 40 U.S.C.A. to the same § where. pointed As out in a few of the regarding extension of state Workmen’s cases,” so called “vote particularly, In re Compensation Laws in federal areas. Town Highlands, supra, and Herken supra, v. Glynn, any things the extent .certain To acts and residents may done area in an condemned area appli on the condemned have still a purview place are residence at cation law outside the of their state former congressional they domiciles. authorization, provides can Art. N.M.Const. person no impinge jurisdiction the exclusive shall deemed be to have a government by of the federal otherwise or lost residence reason ob presence taining. jurisdiction employed his If exclusive cer or absence while tain service of the United landed States or of the be .ceded to the United areas state, state, any nor while student at cannot school. such recaptured be Any statute residents of condemned area later precinct, without consent said constitutional States. whom United 948; applies Rogers Squier, Cir., provision as well as those from F.2d Unzeuta, like provi- other states with constitutional States v. 281 U.S. sion, indeed, and, from the effect of S.Ct. find aside L.Ed. 761. We no provision, receding any federal thing statute the only an intention par evidencing change condemned area New *16 Mexico a former ticulars residence been here involved. We are informed has futile act of by acquire argument seeking area, one in counsel in that such a this federal measure Rehearing. for- On Motion for to abandon
absent a fixed resolve may if other- events, mer residence at all ¡his place FOWLER, (dissenting). qualified, Judge ballot at
wise cast District residence, person, where in of former filed dissenting opinion heretofore The Mexico; or, by ab- required as New opin- majority me disagreeing with the states, permissible. voting in sentee ion, following in part, is withdrawn and substituted therefor: portion residents As to those part a which is not No. Precinct agree I do not that the election held elec- area, qualified are the condemned who (Los Alamos), Precinct 17 Sandoval Coun- fin which county precinct and tors of ty, Mexico, on was a June on rests reside, heavy responsibility they a nullity. opinion The majority admits County Commissioners Board persons those live on the acres who 172.90 with proceed forthwith County Sandoval of former Forest Reserve in said to re- motion dispatch on their own all precinct may qualified were have been voting dis- polling places, for locate primary entitled electors to vote at said end that the precinct tricts in such to the election. nullity, election a The is declared qualified may not be denied therein electors persons, polling as to such because all the right forthcoming elec- to vote places were said situated on yet such action for tion. remains Time land, the 407.39 acres of condemned which remedy well the electors legisla- said to under the is be “exclusive refusal, compel event of same jurisdiction” tion” or “exclusive anticipated. See 1941 not to be States, and as such is deemed to Parts, 56-201. Comp.1947Pocket effectually “out of be State” for all purposes. election has said that from what been It follows per- made writ be the alternative should does jurisdiction New Mexico have manent. said condemned purposes. some reserved State some jurisdic- of this It so ordered. cession;
tion its own acts some, matters, the other was retroceded to the McGHEE, J., MARSHALL by Acts of Congress, State appears and it ANDERSON, Judges, District concur. agree that the authorities that even after ceded has the State still re- FOWLER, Judge, District in tains certain dissenting over the lands part. until unless Congress acts def-
323 initive legislation prescribe for ac- are iby -the by United States the- quired any lands. If Mexico retains method,” “constitutional the 407.- were jurisdiction territory it 39 over this does acres -of condemned lands in Precinct —and —then it country -cannot a “without the be do not have residence within the State Subject State.” right of the United within the meaning of the election laws: to exercise Although exclusive might criticism be leveled at s (which right the has this rule on principle, it probably i too 'part juris- waived of such receding well established for change. may now It diction), territory still Precinct 17 be inferred from these facts that there election, County of Sandoval of the State of New illegal were votes cast at said al., Mexico. Collins Yosemite Park et should not be counted or considered 304 L.Ed. U.S. 1502. S.Ct. in the result. We are not informed how many were, such votes there and of course The County Commissioners of Sandoval no one knows for which -of one the candi County places at sites polling fixed any dates one more many-of or or how within the Precinct Pro- confines stipulation the ballots were cast. The does- polling visions '-regarding fixing votes, not show that the number of these places directory precinct within a are mere- lands, residents of the condemned were ly, and it is not the law to policy sufficient change the results, or were penalize merely disfranchise and electors sufficient to invalidate the election charge because officials have precinct. think the I election was valid slight setting made some miscalculation in qualified electors of said Precinct sites, up they so, espe- if did living on the former Forest Reserve cially not result in depriving did where this lands. vote, his chance single elector of charged appears. or fraud is no views, Holding these opinion I am of the was held polling The election and the proofs that further should be called for or places were where the allowed to -show the number of ballots No offered to vote. function electors or cast residents 407.39 acres of government control was least whom, lands, and, be, if need condemned for nor its im- embarrassed voted, proper such ballots were and that thereby. pinged of direction be order under writ made facts; that, according pointed opinion, out in the then fail As Court’s proofs, weight authority ing is to the effect further alternative discharged. persons writ be who reside on lands which should those my expressed, the views Entertaining majority
dissent action to the herewith rehearing
denying motion
noted. *18 P.2d BENEFIT LIFE UNITED
FLOECK v.
INS. CO.
No. 5067.
Supreme Mexico. of New Court
Sept. Smith, Clovis, appellant.
Otto for Gallegos, Tucumcari, appel- V. J. lee.
SADLER, Justice. question for decision is whether the proration clause found the standard policy, limiting form accident insurance liability specified part insurer to to- indemnity tal amount policies of like in all loss, covering the same absent written no-