Clay v. State

| Kan. | Jul 15, 1866

By the Court,

Bailey, J.

The appellant was charged by information filed in the criminal court of Leavenworth county, with larceny, and filed a plea to the jurisdiction of the court, setting up that the offense, if committed at all, was committed within the military reservation of Fort Leavenworth, within the exclusive jurisdiction of the United States. To this plea the prosecuting attorney for Leavenworth county (H. W. Ide, Esq.) demurred, and the court sustained the demurrer.

The appellant duly excepted to the ruling of the court, and, by leave, filed a plea of not guilty, whereupon the defendant was tried by the jury, and convicted.

Motions in arrest of judgment, and for new trial, having been made and overruled, the appellant brings his case to this court upon the single question of jurisdiction.

• An elaborate and able argument is made by the learned counsel for appellant, to prove that the jurisdiction of the military reservation at Fort Leavenworth vested in the United States exclusively, by virtue of the original cession of the territory from France, and its early and continuous occupation for military purposes, which argument is supplemented by the citation of numerous authorities, none of which, however, it is believed, cover or sanction the claim- in support of which they are advocated.

A brief statement will, we apprehend, be sufficient to show that the claim made in behalf of the appellant cannot be sustained.

I. And, first, we remark that it is not sustained by the letter of the constitution of the United States. Article 1, section 8, clause 17, of the constitution of the United States, defining the legislative powers of the government, provides that congress shall have 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 government of the United States, and to exercise like authority over ail 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.

We say the letter of this provision does not sustain the claim of the appellant, because—

First. The military reservation at Fort Leavenworth was not purchased by the consent of the legislature of the State of Kansas, but long before the State of Kansas had an existence.

Second. It was not purchased for the erection of forts, but as a part of the vast territory of Louisiana. The argument of purchase proves too much.

II. If it should be said that the whole territory now constituting the state of Kansas was, prior to the organization and admission of the state, subject to the exclusive legislation of congress, and the jurisdiction of the United States courts, and that it was competent for congress to reserve its control over the tract in question, it is cheerfully granted; but the reply is inevitable. Congress has not seen fit to make any such reservation; neither the organic act which gave existence to the new territory, nor the act admitting the new state into the Union, affords the slightest tracetof any intent on the part of congress to make such a reservation.

On the contrary, while carefully excepting out of the limits of Kansas, the territory occupied by certain Indian tribes with whom treaties existed, providing that they should not be included within the limits of any state or territory, the act of admission, after defining the boundaries of the new state, so as to include the reservation in question, emphatically declares the State of Kansas to be one of the United States of America, and admitted into the Union on an equal footing with the original states, in all respects whatever. See § 1, Act of Admission.

In section 3 of the same act, clause 6, careful provision is made against taxation Tby the state, of the lands of the United States; but not a -word is said of any reservation of jurisdiction or legislative powers, in any portion of the territory comprised within the limits of the new state.

This omission to take guaranties against the action of the state, in a matter of so vast importance, must be deemed utterly irreconcilable with the hypothesis of the counsel for appellant.

III. If it be conceded, as we think it must be, that there is no express authority for the claim set up in behalf of the United States, to exclusive jurisdiction, it can hardly be pretended, we think, that the rights of a sovereign state, admitted to the Union before, on an equal footing .with the original states in all respects whatever, can be taken away by implication. Such a proposition need only be stated. It needs no argument, yet it may not be superfluous to show that a case standing thus clear upon reason and principle, is not less strong upon authority.

In the case of The People v. Godfrey, 17 Johnson’s R., 225, where the defendant was charged and tried for murder committed within the limits of Port Niagara, while that fort was occupied by U. S. troops, the accused being a corporal of the guard, and the man he was charged with killing a fellow soldier in his custody within the walls of the garrison, at the time of the homicide, the court, Spencer, C. J., held that the right of exclusive legislation or jurisdiction within the limits of any of the states, can be acquired by the United States only by purchase of territory from the states for the purpose, and in the mode prescribed in the constitution of the United States.

In relation to the claim set up in that case, as in the one at bar, tbat tbe place in question had been occupied solely for military purposes, tbe learned judge remarked tbat the occupation of Fort Niagara by tbe troops of tbe United States, since its evacuation (by tbe British) in pursuance of tbe treaty of 1794, cannot be considered as evidence of a right in tbe general government to tbe post itself. It was a friendly occupation, not in derogation of our rights, &c.

Tbe same doctrine is held by Chief Justice Marshall in the case of the United States v. Bevan, 3 Wheaton, 388; and by Chief Justice Parsons in Commonwealth v. Clay, 8 Mass. R., 75.

Finally, the same doctrine is authoritatively stated by Judge Story in bis Commentaries on the Constitution, in the following decisive language. After stating that the state courts could not take cognizance of any offense committed within any places ceded to the United States, nor could the inhabitants of such ceded places claim any rights in the state as citizens, be says: “But, if there has been no cession by the state, of the place, although it has been constantly occupied and used, under purchase or otherwise, by the United States, for a fort, arsenal or other constitutional purpose, the state jurisdiction still remains complete and perfect.” 2 Story on Const., % 1227.

In tbe case before us there has been neither a cession by tbe state, nor its equivalent; if there could be an equivalent, a reservation by tbe United States in tbe organic act or tbe act of admission, or elsewhere, tbe U. S. government, owning tbe soil, has reserved tbe same from' sale and settlement out of tbe mass of tbe public lands, and has occupied it for military purposes, and will do so as long as it may be necessary. If tbe doctrines contended for by tbe appellant were true, the State of Kansas, as well as several other frontier states, would be speckled and spotted all over, like the patriarch’s flocks, with reservations exempt from state jurisdiction without the consent of the state legislature, with no warrant for the anomalous existence except perhaps an order from the war department and actual occupation for military purposes.

We know that in many cases throughout the west, such fort reserves have, with the progress of settlement, become unnecessary and been abandoned.

It is only in a comparatively few instances, where extensive and permanent government establishments were contemplated, that it has been deemed necessary or expedient to acquire jurisdiction to the exclusion of that of the state.

The judgment of the court below must stand affirmed.

All the justices concurring.