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United States to the said condition, evidenced by their making the purchase, it results that the officers of the commonwealth, in executing such process, act under the authority of the United States. No offenses committed within that territory are committed against the laws of this commonwealth, nor can such offenses be punishable by the courts of the commonwealth, unless the congress of the United States should give to the said courts jurisdiction thereof. In Mitchell v. Tibbits, before the same court, years afterwards, (17 Pick. 298,) it was held that a vessel employed in transporting stone from Maine to the navy-yard in Charlestown, Massachusetts, a place purchased by the United States, with the consent of the state, was not employed in transporting stone within the commonwealth, and therefore committed no offense in disregarding a statute making certain requirements of vessels thus employed. The court said that to bring a vessel within the description of the statute, she must be employed in landing stone at, or taking stone from, some place in the commonwealth, and that the law of Massachusetts did not extend to and operate within the territory ceded; adopting the principle of its previous decision in 8 Mass. . In March, 1811, the house of representatives of Massachusetts requested of the justices of the supreme judicial court of that state their opinion whether persons residing on lands in that state purchased by or ceded to the United States for navy-yards, arsenals, dock-yards, forts, lighthouses, hospitals, and armories, were entitled to the benefits of the state common schools for their children in the towns where such lands were located; and the justices replied that, “where the general consent of the commonwealth is given to the purchase of territory by the United States for forts and dock-yards, and where there is no other condition or reservation in the act. granting such consent, but that of a concurrent jurisdiction of the state for the service of civil process and criminal process against persons charged with crimes committed out of such territory, the government of the United States has the sole and exclusive jurisdiction over such territory for all purposes of legislation and jurisprudence with the single exception expressed; and consequently that no persons are amenable to the laws of the cominonwealth for crimes and offenses committed within said territory; and that persons residing within the same do not acquire the civil and political privileges, nor do they become subject to the civil duties and obligations, of inhabitants of the towns within which such territory is situated.” And accordingly they were of opinion that persons residing on such lands were not entitled to the benefits of the common schools for their children in the towns in which such lands were situated. 1 Metc. 580.
In Sinks v. Reese, 19 Ohio Si. 306, the question came before the supreme court of Ohio as to the effect of a proviso in the act of that state, ceding to the United States its jurisdiction over lands within her limits for the purposes of a national asylum for disabled volunteer soldiers, which was that nothing in the act should be construed to prevent the officers, employes, and inmates of the asylum, who were qualified voters of the state, from exercising the right of suffrage at all township, county, and state elections in the townships in which the national asylum should be located. And it was held that, upon the purchase of the territory by the United States, with the consent of the legislature of the state, the general government became invested with exclusive jurisdiction over it and its appurtenances in all cases whatsoever; and that the inmates of such asylum resident within the territory, being within such exclusive jurisdiction, were not residents of the state so as to entitle them to vote, within the meaning of the constitution, which conferred the elective franchise upon its residents alone.
To the same effect have been the opinions of the attorney general, when called for by the head of one of the departments. Thus, in the case of Ar. mory at Harper's Ferry, in Virginia, the question arose whether officers of the army, or other persons, residing in the limits of the armory, the lands
composing which had been purchased by consent of the state, were liable to taxation by her. The consent had been accompanied by a cession of jurisdiction, with a declaration that the state retained concurrent jurisdiction with the United States over the place, so far as it could consistently with the acts giving consent to the purchase and ceding jurisdiction; and that its courts, magistrates, and officers might take such cognizance, execute such processes, and discharge such other legal functions within it as might not be incompatible with the true intent and meaning of those acts. The question having been submitted to the attorney general, he replied that the sole object and effect of the reservation was to prevent the place from becoming a sanctuary for fugitives from justice, for acts done within the acknowledged jurisdiction of the state, and that in all other respects the exterritoriality of the armory at Harper's Ferry was complete, in so far as regards the state; that the persons in the employment of the United States, actually residing in the limits of the armory, did not possess the civil and political rights of citizens of the state, nor were they subject to the tax and other obligations of such citizens. 6 Op. Attys. Gen. 577. See, also, the case of The New York Post-office Site, 10 Op. Altys. Gen. 35. 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.
But with reference to lands owned by the United States, acquired by purchase without the consent of the state, or by cessions from other governments, the case is different. STORY, in his Commentaries on the Constitution, says: “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 or arsenal, or other constitutional purpose, the state jurisdiction still remains complete and perfect;" and in support of this stateinent he refers to People v. Godfrey, 17 Johns. 225. In that case the land on which Fort Niagara was erected, in New York, never having been ceded by the state to the United States, it was adjudged that the courts of the state had jurisdiction of crimes or offenses against the laws of the state committed within the fort or its precincts, although it had been garrisoned by the troops of the United States, and held by them since its surrender by Great Britain, pursuant to the treaties of 1793 and 1794. In deciding the case the court said that the possession of the post by the United States must be considered as a possession for the state, not in derogation of her rights, observing that it regarded it as a fundamental principle that the rights of sovereignty were not to be taken away by implication. “If the United States,” the court added, “had the right of exclusive legislation over the fortress of Niagara, they would have also exclusive jurisdiction; but we are of opinion that the right of exclusive legislation within the territorial limits of any state, can be acquired by the United States only in the mode pointed out in the constitution,--by purchase, by consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dock-yards, and other neellful buildings. The essence of that provision is that the state shall freely cede the particular place to the United States for one of the specific and enumerate:I ojects. This jurisdiction cannot be acquired tortiously or by disseizin of the state; much less can it be acquired*by mere occupancy, with the implied or tacit consent of the state, when such occupancy is for the purpose of protection."
Where, therefore, lands are acquired in any other way by the United States within the limits of a state than by purchase with her consent, they will hold the land subject to this qualification: that if upon them forts, arsenals, or other public buildings are erected for the uses of the general government,
such buildings, with their appurtenances, as instrumentalities for the execution of its powers, will be free from any such interference and jurisdiction of the state als would destroy or impair their effective use for the purposes designed. Such is the law with reference to all instrumentalities created by the general government. Their exemption from state control is essential to the independence and sovereign authority of the United States within the sphere of their delegated powers. But, when not used as such instrumentalities, the legislative power of the state over the places acquired will be as full and complete as over any other places within her limits.
As already stated, the land constituting the Fort Leavenworth military reservation was not purchased, but was owned by the United States by ces. sion from France many years before Kansas became a state; and whatever political sovereignty and dominion the United States had over the place comes from the cession of the state since her admission into the Union. It not being a case where exclusive legislative authority is vested by the constitution of the United States, that cession could be accompanied with such conditions as the state might see fit to annex, not inconsistent with the free and effective use of the fort as a military post.
In the recent case of The Fort Porter Military Reservation, the opinion of the attorney general was in conformity with this view of the law. On the twenty-eighth of February, 1842, the legislature of New York authorized the commissioners of its land-office to cede to the United States the title to certain land belonging to the state within her limits, "for military purposes, reserving a free and uninterrupted use and control in the canal commissioners of all that may be necessary for canal and harbor purposes.” Under this act the title was conveyed to the United States. "The act also ceded to them ju. risdiction over the land. In 1880 the superintendent of public works of New York, upon whom the duties of canal commissioner were devolved, informed the secretary of war that the interests of the state required that the land, or a portion of it, should be occupied by her for canal purposes, claiming the right to thus occupy it under the reservation in the act of cession. The opinion of the attorney general was, therefore, requested as to the authority of the secretary of war to permit the state, under these considerations, to use so much of the land as would not interfere with its use for military purposes. The attorney general replied that the United States, under the grant, held the land for military purposes, and that the reservation in favor of the state could be deemed valid only so far as it was not repugnant to the grant; that, hence, the right of the state to occupy and use the premises for canal or harbor purposes must be regarded as limited or restricted by the purposes of the grant; that, when such use and occupation would defeat or interfere with those purposes, the right of the state did not exist; but, when they would not interfere with those purposes, the state was entitled to use so much of the land as might be necessary for her canal and harbor purposes. 16 Op. Attys. Gen. 592.
We are here met with the objection that the legislature of a state has no power to cede away her jurisdiction and legislative power over any portion of her territory, except as such cession follows under the constitution from her consent to a purchase by the United States for some one of the purposes mentioned. If this were so it would not aid the railroad company; the jurisdiction of the state would then remain as it previously existed. But, aside from this consideration, it is undoubtedly true that the state, whether represented by her legislature, or through a convention specially called for that purpose, is incompetent to cede her political jurisdiction and legislative authority over any part of her territory to a foreign country, without the concurrence of the general government The jurisdiction of the United States extends over all the territory within the states, and therefore their authority must be ob
ned, as well that of the state within which the territory is situated, before any cession of sovereignty or political jurisdiction can be made to a foreign country. And so when questions arose as to the north-eastern boundary, in Maine, between Great Britain and the United States, and negotiations were in progress for a treaty to settle the boundary, it was deemed necessary on the part of our government to secure the co-operation and concurrence of Maine, so far as such settlement might involve a cession of her sovereignty and jurisdiction as well as title to territory claimed by her, and of Massachusetts, so far as it might involve a cession of title to lands held by her. Both Maine and Massachusetts appointed commissioners to act with the secretary of state, and after much negotiation the claims of the two states were adjusted, and the disputed questions of boundary settled. The commissioners of Maine were appointed by her legislature; and those of Massachusetts by her governer, under authority of an act of her legislature. It was not deemed necessary to call a convention of the people in either of them to give to the commissioners the requsite authority to act effectively for their respective states. 5 Webst. Works, 99; 6 Webst. 273.
In their relation to the general government, the states of the Union stand in a very different position from that which they hold to foreign governments. Though the jurisdiction and authority of the general government are essentially different from those of the state, they are not those of a different country; and the two, the state and general government, may deal with each other in any way they may deem best to carry out the purposes of the constitution. It is for the protection and interests of the states, their people and property, as well as for the protection and interests of the people generally of the United States, that forts, arsenals, and other buildings for public uses are constructed within the states. As instrumentalities for the execution of the powers of the general government, they are, as already said, exempt from such control of the states as would defeat or impair their use for those purposes; and if, to their more effective use, a cession of legislative authority and political jurisdiction by the state would be desirable, we do not perceive any objection to its-grant by the legislature of the state. Such cession is really as much for the benefit of the state as it is for the benefit of the United States. It is necessarily temporary, to be exercised only so long as the places continue to be used for the public purposes for which the property was acquired or reserved from sale. When they cease to be thus used, the jurisdiction reverts to the state.
The military reservation of Fort Leavenworth was not, as already said, acquired by purchase with the consent of Kansas. And her cession of jurisdiction is not of exclusive legislative authority over the land, except so far as that may be necessary for its use as a military post; and it is not contended that the saving clause in the act of cession interferes with such use. There is, therefore, no constitutional prohibition against the enforcement of that clause. The right of the state to subject the railroad property to taxation ex. ists as before the cession. The invalidity of the tax levied not being asserted on any other ground than the supposed exclusive jurisdiction of the United States over the reservation, notwithstanding the saving clause, the judgment of the court below must be affirmed.
(114 U. S. 642)
CHICAGO, R. I. & P. Ry. Co. 0. MCGLINN.
(May 4, 1885.) JURISDICTION OVER TERRITORY WITHIN THE FORT LEAVENWORTH MILITABY RESERVA
See Fort Leavenworth R. Co. v. Lowe, ante, 995. In Error to the Supreme Court of the State of Kansas. Thos. F. Withrow, M. A Low, and E. E. Cook, for plaintiff in error. W. Hallett Phillips, for defendant in error.
* FIELD, J. This case comes here from the supreme court of the state of Kansas. It is an action for the value of a cow, alleged to have been killed by the engine and cars of the Chicago, Rock Island & Pacific Railway Company, a corporation doing business in the county of Leavenworth, in that state. It was brought in a state district court, and submitted for decision upon an agreed statement of facts, in substance as follows: That on the tenth of February, 1881, a cow, the property of the plaintiff, of the value of $25, strayed upon the railroad of the defendant, at a point within the limits of the Fort Leavenworth military reservation, in that county and state, where the road was not inclosed with a fence, and was there struck and killed by a train passing along the road; that the reservation is the one referred to in the act of the legislature of the state of February 22, 1875; that a demand upon the defendant for the $25 was made by the plaintiff more than 30 days before the action was brought; and that if the plaintiff was entitled to recover attor-, ney's fees, $20 would be a reasonable fee.
*The action was founded upon a statute of Kansas of March 9, 1874, entitled "An act relating to killing or wounding stock by railroads," which makes every railway company in the state liable to the owner for the full value of cattle killed, and in damages for cattle wounded, by its engine or : cars, or in any other manner in operating its railway. It provides that, in case the railway company fails for 30 days after demand by the owner to pay to him the full value of the animal killed, or damages for the animal wounded, he may sue and recover the same, together with a reasonable attorney's feo for the prosecution of the action. It further provides that it shall not apply to any railway company, the road of which is inclosed with a good and lawful fence to prevent the animal from being on the road. Laws Kan. 1874, c. 94.
On the twenty-second of February, 1875, the legislature of Kansas passed an act ceding to the United States jurisdiction over the reservation, the first section of which is as follows: “That exclusive jurisdiction be, and the same is hereby, ceded to the United States over and within all the territory owned by the United States, and included within the limits of the United States military reservation, known as the •Fort Leavenworth Reservation,' in said state, as declared from time to time by the president of the United States; saving, however, to the said state the right to serve civil or criminal process within said reservation, in suits or prosecutions for or on account of rights acquired, obligations incurred, or crimes committed in said state, but outside of such cession and reservation; and saving further to said state the right to tax railroad, bridge, and other corporations, their franchises and property, on said reservation." Laws Kan. 1875, c. 66.
The district court gave judgment for the plaintiff, assessing his damages at $45, an amount which was made by estimating the value of the cow killed at $25, and the attorney's fee at $20, these sums having been agreed upon hy the parties. The case was carried to the supreme court of the state, where the judgment was affirmed, that court holding that the act of Kansas, relating to the killing or wounding of stock by railroads, continued to be operative within the limits of the reservation, as it had not been abrogated by congress, and was not inconsistent with existing laws of the United States. In so