229 F. 1011 | W.D. Wash. | 1916
“That at all times hereinafter named the plaintiff was a prisoner confined in the United States penitentiary at McNeil’s Island, and that the defendant, O. P. Halligan, at all times hereinafter named was the warden of the United States penitentiary at McNeil’s Island, in charge of the inmates and of the maintenance and control of all of the inmates confined therein, including the plaintiff, John H. Steele.
“That ® * ® the plaintiff was negligently and carelessly placed to work, by and through the direction of the defendant, beneath a steep bank of from 25 to 30 feet in height of sliding loose strata of sand, gravel, and earth, and * ® ® without any fault or negligence of the plaintiff, the said bank under which the plaintiff was working caved, gave way, and fell upon the plaintiff, greatly injuring and damaging the plaintiff. * * ®
“That all of the injuries and damages sustained by the plaintiff were wholly caused by and due to the negligent careless acts and omissions of the defendant in negligently and carelessly placing the plaintiff to work under guard and underneath a bank of loose sliding clay, gravel, and earth.”
The petition for removal to this court alleges:
“That the alleged accident and injury to plaintiff, as described in his complaint, occurred at the United States penitentiary, within the limits of the same, and on land and property used exclusively for a United States penitentiary, and exclusively within the jurisdiction of the United States and of the United States courts.”
It clearly appears from the complaint that the defendant, the warden, is charged with negligently discharging the duty imposed upon him'by law and the judgment of the court committing the plaintiff to his care and custody. It would appear to need no citation of authority to show that such suit is one arising under the laws of the United States. Bachrack v. Norton, 132 U. S. 337, 10 Sup. Ct. 106, 33 L. Ed. 377; Feibelman v. Packard, 109 U. S. 421, 3 Sup. Ct. 289, 27 L. Ed. 984; Sonnentheil v. Moerlein Brewing Co., 172 U. S. 401, 19 Sup. Ct. 233, 43 L. Ed. 492; Bryant Bros. Co. v. Robinson, 149 Fed.
“That the sum of one hundred thousand dollars is further appropriated, to be expended under the direction of the Attorney General, in the fitting of workshops for the employment of the prisoners: Provided, however, that the convicts be employed exclusively in the manufacture of such supplies for the government as can be manufactured without the use of machinery, and the prisoners shall not be worked outside the prison inclosure. * *
“That the control and management of said prisons be vested in the Attorney General, who shall have power to appoint a superintendent, assistant superintendent, warden, keeper, and all other officers necessary for the safe-keeping, care, protection, and discipline of such United States prisoners. He shall also have authority to promulgate such rules for the government of the officials of said prisons and prisoners as he may deem proper and necessary.” Vol. 6, Fed. St. Ann. p.. 25, Comp. St. 1913, §§ 10553, 10555.
The Constitution of the United States (article 1, section 8, subsection 17) provides:
“The 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 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.”
The Constitution of the state of Washington, adopted October 1, 1889, provides:
“The consent of the state of Washington is hereby given to the exercise by the Congress of the United States of exclusive legislation in all cases whatsoever over such tract or parcels of land as are now held or reserved by the government of the United States for the purpose of erecting or maintaining thereon forts, magazines, arsenals, dockyards, lighthouses, and other needful buildings, in accordance with the provisions of the seventeenth paragraph of the eighth section of the first article of the Constitution of the United States: Provided, that a sufficient description by metes and bounds, and an accurate plat or map of each such tract or parcel of land be filed in the proper office of record in the. county in which the same is situated, together with copies of*1015 ihe orders, deeds, patents, or other evidences in writing of the title of the United States: And provided, that all civil process issued from the courts of tills state, and such criminal process as may issue under the authority of this state, against any person charged with crime in cases arising outside of sucli reservations, may he served and executed thereon in the same mode and manner and by the same officers as if the consent herein given had not been made.” Article 25.
Section 6853 of Remington & Ballinger’s Code provides;
“The consent of the state of Washington be and the same is hereby given to the acquisition by purchase or by condemnation, under the laws of this state relating to the appropriation of private property to public uses, by tile United States of America, or under the authority of the same, of any tract:, piece, or parcel of land, from any individual or individuals, bodies politic or corporate, within the boundaries or limits of this state, for the sites of locks, dams, piers, breakwaters, keepers’ dwellings, and other necessary structures and purposes required in the improvement: of the rivers and harbors of this state, or bordering thereon, or for the sites of forts, magazines, arsenals, docks, navy yards, naval stations, or other needful buildings authorized by any act of Congress, and all deeds, conveyances of title papers for the same shall be recorded as in other cases, upon the land records of the county in which the land so acquired may lie, and in like manner may be recorded a sufficient, description by metes and bounds, courses and distances, of any tract or tracts, legal divisions or subdivisions of any public land belonging to the United States which may he set apart by the general government for any or either of the purposes before mentioned by an order, patent, or other official document or papers describing such land; the consent herein and hereby given being in accordance with the seventeenth clause of the eighth section of the first article of the Constitution of the United States, and with the acts of Congress in such cases made and provided; and the jurisdiction of this state is hereby ceded to the United States of America over all such land or lands as may have been or may be hereafter acquired by purchase or by condemnation, or set apart by the general government for any or either of the purposes before mentioned: Provided, that this state shall retain a concurrent jurisdiction with the United States in and over ail tracts so acquired or set apart as aforesaid, so far as that all civil and criminal process that may issue under the authority of this state against any person or persons charged with crimes committed, or for any cause of action or suit accruing without the hounds of any suoh tract, may be executed therein, in the same manner and with like effect as though tiiis assent and cession had not been granted.”
“That the alleged accident and injury to plaintiff as described in his complaint occurred at the United States penitentiary within the limits of the same and on land and property used exclusively for a United States penitentiary and exclusively within the jurisdiction of the United States and of the United States courts.”
The foregoing shows that the act of the defendant, on account of which he is sued, is one directly imposed on him in the course of carrying out the governmental purpose for which the land was purchased as a prison site. It is strongly indicated in both Ft. Leavenworth R. R. Co. v. Lowe, 114 U. S. 525, 5 Sup. Ct. 995, 29 L. Ed. 264, and Chicago & P. R. R. Co. v. McGlinn, 114 U. S. 542, 5 Sup. Ct. 1005, 29 L. Ed. 270, that in such matters the state’s cession of jurisdiction is not necessary; that, in matters concerning the performance of a federal function, exclusive jurisdiction is in the national government without any cession or special consent on the part of the state. In the McGlinn Case it was said:
“This point was involved in the case of Ft. Leavenworth Railroad v. Lowe, 114 U. S. 525, 5 Sup. Ct. 995, 29 L. Ed. 204. We there held that a building on a tract of land owned by the United States used as a fort, or for other public purposes of the federal government, is exempted, as an instrumentality of the government, from any such control or interference- by the State as will defeat or embarrass its effective use for those purposes. But, in order that the United States may possess exclusive legislative power over the tract, except as may be necessary to the use of the building thereon as such instrumentality, they must have acquired the tract by purchase, with the consent of the state. This is the only mode proscribed by the federal Constitution for their- acquisition of exclusive legislative power over it. When such legislative power is acquired in any other way, as by an express act ceding it, its cession may be accompanied with any conditions not inconsistent with the effective use of the property for the public purposes intended.” 114 U. S. 545, 546, 5 Sup. Ct. 1006 [29 L. Ed. 270].
“This follows from the declaration of the Constitution that Congress shall have ‘like authority’ over such places as it has over the district which is the seat of government; that is, the power of ‘exclusive legislation in all cases whatsoever.’ Broader or clearer language could not be used to exclude all other authority than that of Congress, and that no other authority can be exercised over them has been the uniform opinion of federal and state tribunals, and of the Attorneys General.” Ft. Leavenworth R. R. Co. v. Lowe, 114 U. S. 525, at 532, 5 Sup. Ct. 995, at 999, 29 L. Ed. 264.
The state’s jurisdiction is completely ousted. U. S. v. Cornell, Fed. Cas. No. 14,867.
“While Congress has enacted a complete criminal code in relation to crimes committed within places within which it has exclusive jurisdiction and on the high seas, it has provided no laws for the government in civil matters of the inhabitants of forts, arsenals, magazines, and dockyards. These places, when acquired in the manner defined by the clause of the national Constitution just quoted (article 1, § 8) are without laws in civil matters, except such general laws as may have been in force, respectively, in the states from which the United States derived them at the time of acquisition. * * * It [the Supreme Court] held specially that where laws thus left in force after the dates of cession reserved in one case a right of taxing certain properly on the lands of the United States, and in the other case the right to recover damages for certain acts of negligence committed on such lands, such provisions of law could be enforced at any time after the cession.” Crook, Horner & Co. v. Old Point Comfort Hotel (C. C.) 54 Fed. 604, 607.
“With respect to other laws affecting the possession, use, and transfer of property, and designed to secure good order and peace in the community, and promote its health and prosperity, which are strictly of a municipal character, the rule is general that change of government leaves them in force until, by direct action of the new government, they are altered or repealed.” Downes v. Bidwell, 182 U. S. 244, at 298 and 345, 21 Sup. Ct. 770, 45 L. Ed. 1088; Insurance Co. v. Canter, 1 Pet. 511, at 542, 7 L. Ed. 242.
“In a territory acquired by conquest or cession the laws affecting personal property rights and domestic relations as they existed between the people under the government from which the territory was acquired remain in full force until altered by the government of the United States or by the territorial government under its authority.” In re Chavez, 149 Fed. 73, 80 C. C. A. 451.
The McGlinn (114 U. S. 542, 5 Sup. Ct. 1005, 29 L. Ed. 270) and Downs (182 U. S. 298, 21 Sup. Ct. 770, 45 L. Ed. 1088) Cases hold that the law under the old sovereignty is preserved in the absence of a controlling federal statute, or its being antagonistic to the purpose for which the governmental site is acquired and used. In Western Union Telegraph Co. v. Chiles, 214 U. S. 274, 29 Sup. Ct. 613, 53 L. Ed. 994, where the state statute imposed a penalty for nondelivery of a telegram, it was held of no effect where the telegram was to be delivered within a United States navy yard; the state having ceded jurisdiction to the United States, although the act penalized was not
_ [9] The municipal law of the old sovereignty regulating civil rights, which is continued in effect under the new sovereignty, as pointed out in the cases already cited, is the law in effect at the time of the cession. In re Chavez, 149 Fed. 73, 80 C. C. A. 451. There being two purchases of the land at McNeil Island, one in territorial days and the other after statehood, there would be two dates as of which these laws were adopted and fixed. This fact would- involve the determination upon the trial of whether the accident to plaintiff occurred upon the land ceded prior to the admission of the state or subsequently.
“The fact that the state has ceded land in the city of Brooklyn, and political jurisdiction over it, to the United States, for the purpose of a navy yard, does not oust the state courts of jurisdiction as to private rights and remedies within such territory, at least so long as Congress makes no new regulations touching the administration of justice in civil actions arising therein; and therefore the City Court of Brooklyn, by virtue of the jurisdiction conferred on it by Code, § 263, subd. 3, respecting injuries to land within the city, has jurisdiction of an action of trespass committed on a part of such ceded land, which part had been leased by the federal government to the city, under whom plaintiff claims as a sublessee.” Barrett v. Palmer, 135 N. Y. 336, 31 N. E. 1017, 17 L. R. A. 720, 31 Am. St. Rep. 835.
The state court being a court of general jurisdiction, it had jurisdiction to entertain this cause. The laws of the old sovereignty remaining in effect and the territory passing to the new sovereignty, they are no longer, so far as that territory is concerned, foreign laws; that is, they are not laws of the old sovereignty, but thereby become laws of the new, pending the enactment by the new sovereignty of appropriate laws on the same subjects. They are fixed as of the time of the cession, while the lavys-of the old sovereignty change without affecting those in existence at the time of the cession, so far as the new territory passing to the sovereignty is concerned.
It follows, therefore, that the laws of negligence in effect in the territory at the time the first portion of the present site was acquired and those of the state in effect at the time the second portion thereof was acquired became, so far as that territory is concerned, the laws of the United States, and, as modified by the then existing enactments of Congress and those subsequently passed, are the laws under which this case arises.
In the first class, the state’s jurisdiction is general and the federal jurisdiction exceptional, and therefore to be made specially to appear. But, when the federal jurisdiction originates because of the territory within which the cause of action arose, its jurisdiction is general, and that of the state- — so far as it exists — exceptional. The reason upon which the rule is based, then, requires the state’s jurisdiction, rather than that of the federal courts, to be specially shown.
Motion to remand denied.