ACQUISITION OF LEGISLATIVE JURISDICTION
THREE METHODS FOR FEDERAL ACQUISITION OF JURISDICTION:
Constitutional consent.--The Constitution gives express recognition to but one means of Federal acquisition of legislative jurisdiction-- by State consent under article I, section 8, clause 17. The debates in the Constitutional Convention and State ratifying conventions leave little doubt that both the opponents and proponents of Federal exercise of exclusive legislature jurisdiction over the seat of government were of the view that a constitutional provision such as clause 17 was essential if the Federal government was to have such jurisdiction. At no time was it suggested that such a provision was unessential to secure exclusive legislative jurisdiction to the Federal Government over the seat of government. While, as has been indicated in the preceding chapter, little attention was given in the course of the debates to Federal exercise of exclusive legislative jurisdiction over areas other than the seat of government, it is reasonable to assume that it was the general view that a special constitution provision was essential to enable the United States to acquire exclusive legislative jurisdiction over any area. Hence,the proponents of exclusive legislative jurisdiction over the seat of government and over federally owned areas within the States defended the inclusion in the Constitution of a provision such as article I, section 8, clause 17. And in United States v. Railroad Bridge Co., 27 Fed. Cas. 686, 693, No. 16,114 (C.C.N.D. Ill., 1855), Justice McLean suggested that the Constitution provided the sole mode for transfer of jurisdiction, and that if this mode is not pursued no transfer of jurisdiction can take place.
State cession.--However, in Fort Leavenworth R.R. v. Lowe, 114
U.S. 525 (1885), the United States Supreme Court sustained the validity of an act of Kansas ceding to the United States legislative jurisdiction over the Fort Leavenworth military reservation, but reserving to itself the right to serve criminal and civil process in the reservation and the right to tax railroad, bridge, and other corporations, and their franchises and property on the reservation. In the course of its opinion sustaining the cession of legislative jurisdiction , the Supreme Court said (p. 540):
We are here net 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 obtained, as well as 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. * * * 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 form 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.
Had the doctrine thus announced in Fort Leavenworth R.R. v. Lowe, supra, been known at the time of the Constitutional Convention, it is not improbable that article I, section 8, clause 17, at least insofar as it applies to areas other than the seat of government, would not have been adopted. Cession as a method for transfer of jurisdiction by a State to the United States is now well established, and quite possibly has been the method of transfer in the majority of instances in which the Federal
Federal reservation.--In Fort Leavenworth R.R. v. Lowe, supra,
the Supreme Court approved second method not specified in the Constitution of securing legislative jurisdiction in
44the United States. Although the matter was not in issue in the case, the Supreme Court said (p. 526):
The land constituting the Reservation was part of the territory acquired in 1803 by cession from France, and until the formation of the State of Kansas, and her admission into the Union, the United States possessed the rights of a proprietor, and had political dominion and sovereignty over it. For many years before that admission it had been reserved from sale by the proper authorities of the United States for military purposes, and occupied by them as a military post. The jurisdiction of the United States over it during this time was necessarily paramount. But in 1861 Kansas was admitted into the Union upon an equal footing with the original States, that is, with the same rights of political dominion and sovereignty, subject like them only to the Constitution of the United States. Congress might undoubtedly, upon such admission, have stipulated for retention of the political authority, dominion and legislative power of the United States over the Reservation, so long as it should be used for military purposes by the government; that is, it could have excepted the place from the jurisdiction of Kansas, as one needed for the uses of the general government. But from some cause, inadvertence perhaps, or over-confidence that a recession of such jurisdiction could be had whenever desired, no such stipulation or exception was made. * * * [Emphasis added.]
Almost the same language was used by the Supreme Court of Kansas in Clay v. State, 4 Kan. 49 (1866), and another suggestion of judicial recognition of this doctrine is to be found in an earlier case in the Supreme Court of the United States, Langford v. Monteith, 102 U.S. 145 (1880), in which it was held that when an act of congress admitting a State into the Union provides, in accordance with a treaty, that the lands of
45an Indian tribe shall not be a part of such State or Territory, the new State government has no jurisdiction over them. The enabling acts governing the admission of several of the States provided that exclusive jurisdiction over certain areas was to be reserved to the United States. In view of these development, an earlier opinion of the United States Attorney General indicating that a State legislature, as distinguished from a State constitutional convention, had to give the consent to transfer jurisdiction specified in the Federal Constitution (12 Ops. A.G. (1868)), would seem inapplicable to a Federal reservation of jurisdiction.
Since Congress has the power to create States out of territories
and to prescribe the boundaries of the new States, the retention of exclusive legislative jurisdiction over a federally owned area within the State is admitted into the Union would not appear to pose any serious constitutional difficulties.
No federal legislative jurisdiction without consent, cession, or
reservation.--It scarcely needs to be said that unless there has been a transfer of jurisdiction (1) pursuant to clause 17 by a Federal acquisition of land with State consent, or (2) by cession from the State to the Federal Government, or unless the Federal Government has reserved jurisdiction upon the admission of the State, the Federal Government possesses no legislative jurisdiction over any area within a State, such jurisdiction being for exercise entirely by the State, subject to non-interference by the State with Federal functions, and subject to the free exercise by the Federal Government of rights
46with respect to the use, protection, and disposition of its property.
NECESSITY OF STATE ASSENT TO TRANSFER OF JURISDICTION TO FEDERAL
GOVERNMENT: Constitutional consent.--The Federal Government cannot, by unilateral action on its part, acquire legislative jurisdiction over any area within the exterior boundaries of a State. Article I, section 8, clause 17, of the Constitution, provides that legislative jurisdiction may be transferred pursuant to its terms only with the consent of the legislature of the State in which is located the area subject to the jurisdictional transfer. As was indicated in chapter II, the consent requirement of article I, section 8, clause 17, was
47intended by the framers of the Constitution to preserve the States' jurisdictional integrity against Federal encroachment.
State cession or Federal reservation.--The transfer of
legislative jurisdiction pursuant to either of the two means not spelled out in the Constitution likewise requires the assent of the State in which is located the area subject to the jurisdictional transfer. Where legislative jurisdiction is transferred pursuant to a State cession statute, the State has quite clearly assented to the transfer of legislative jurisdiction to the Federal Government, since the enactment of a State cession statute is a voluntary act on the part of the legislature of the State.
The second method not spelled out in the Constitution of vesting
legislative jurisdiction in the Federal Government, namely, the reservation of legislative jurisdiction by the Federal Government at the time statehood is granted to a Territory, does not involve a transfer of legislative jurisdiction to the Federal Government by a State, since the latter never had jurisdiction over the area with respect to which legislative jurisdiction is reserved. While, under the second method of vesting legislative jurisdiction in the Federal Government, the latter may reserved such jurisdiction without inquiring as to the wishes or desires of the people of the Territory to which statehood has been granted, nevertheless, the people of the Territory involved have approved, in at least a technical sense, such reservation. Thus, the reservation of legislative jurisdiction constitutes, in the normal case, one of the terms and conditions for granting statehood, and only if all of the terms and conditions are approved by a majority of the Territorial legislature, is statehood granted.
NECESSITY OF FEDERAL ASSENT: Express consent required by R. S.
355.--Acquiescence, or acceptance, by the Federal Government, as well as by the State, is essential to the transfer of legislative jurisdiction to the Federal Government. When legislative jurisdiction is reserved by the Federal Government at the time statehood is granted to a Territory, it is, of course, obvious that the possession of legislative jurisdiction meets with the approval of the Federal Government. When legislative jurisdiction is to be transferred by a State to the Federal Government either pursuant to article I, section 8, clause 17, of the Constitution, or by means of a State cession statute, the necessity of Federal assent to such transfer of legislative jurisdiction has been firmly established by the enactment of the February 1, 1940, amendment to R.S. 355. While this amendment in terms specifies requirement for formal Federal acceptance prior to the transfer of exclusive or partial legislative jurisdiction, it also applies to the transfer of concurrent jurisdiction. The United States Supreme Court, in Adams v. United States, 319 U.S. 312 (1943), in the cause of its opinion said (pp. 314-315):
Both the Judge Advocate General of the Army and the Solicitor of the Department of Agriculture have con-
strued the 1940 Act as requiring that notice of acceptance be filed if the government is to obtain concurrent jurisdiction. The Department of Justice has abandoned the view of jurisdiction which prompted the institution of this proceeding, and now advises us of its view that concurrent jurisdiction can be acquired only by the formal acceptance prescribed in the Act. These agencies cooperated in developing the Act, and their views are entitled to great weight in its interpretation. * * * Besides, we can think of no other rational meaning for the phrase "jurisdiction, exclusive or partial" than that which the administrative construction gives it.
Since the government had not accepted jurisdiction in the manner required by the Act, the federal court had no jurisdiction of this proceeding. In this view it is immaterial that Louisiana statutes authorized the government to take jurisdiction, since at the critical time the jurisdiction had not been taken. Former presumption of Federal acquiescence in absence of
dissent.--Even before the enactment of the 1940 amendment to R.S. 355, it was clear that a State could not transfer, either pursuant to article I, section 8, clause 17, of the Constitution, or by means of a cession statute, legislative jurisdiction to the Federal Government without the latter's consent. Prior to the 1940 amendment to R.S. 355, however, it was not essential that the consent of the Federal Government be expressed formally or in accordance with any prescribed procedure. Instead, it was presumed that the Federal Government accepted the benefits of a State enactment providing for the transfer of legislative jurisdiction. As discussed more fully below, this presumption of acceptance was to the effect that once a State
50legislatively indicated a willingness to transfer exclusive jurisdiction such jurisdiction passed automatically to the Federal Government without any action having to be taken by the United States. However, the presumption would not operate where Federal action was taken demonstrating dissent from the acceptance of proffered jurisdiction.
Presumption in transfers by cession.--In Port Leavenworth R.R.
v. Lowe, supra, in which a transfer of legislative jurisdiction by means of a State cession statute was approved for the first time, the court said (p. 528) that although the Federal Government had not in that case requested a cession of jurisdiction, nevertheless, "as it conferred a benefit, the acceptance of the act is to be presumed in the absence of any dissent on their part." See also United States v. Johnston, 58 F.Supp. 208 aff'd., 146 F.2d 268 (C.A. 9, 1944), cert. den., 324 U.S. 876; 38 Ops. A. G. 341 (1935). A similar view has been expressed by a number of courts to transfers of jurisdiction by cession. In some instances, however, the courts have indicated the existence of affirmative grounds supporting Federal acceptance of such transfers. In Yellowstone Park Transp. Co. v. Gallatin County, 31 F. 2d 644 (C.A. 9, 1929), cert. den., 280 U.S. 555, it was stated that acceptance by the United
51States of a cession of jurisdiction by a State over a national park area within the State may be implied from acts of Congress providing for exclusive jurisdiction in national parks. See also Columbia River Packers' Ass'n v. United States, 29 F. 2d 91 (C.A. 9, 1928); United States v. Unzeuta, 281 U.S. 138 (1930).
Presumption in transfers by constitution consent.--Until recent
years, it was not clear but that the consent granted by a State pursuant to article I, section 8, clause 17, of the Constitution, would under all circumstances serve to transfer legislative jurisdiction to the Federal Government where the latter had "purchased" the area and was using it for one of the purposes enumerated in clause 17. In United States v. Cornell, 25 Fed. Cas. 646, No. 14,867 (C.C.D.R.I., 1819), Justice Story expressed the view that clause 17. In the course of his opinion in that case, Justice Story said (p. 648):
The constitution of the United States declares that congress shall have power to exercise "exclusive legislation" in all "cases whatsoever" 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, dockyards and other needful buildings. When therefore a purchase of land for any of these purposes is made by the national government, and the state legislature has given its consent to the purchase, the land so purchased by the very terms of the constitution ipso facto falls within the exclusive legislation of congress, and the state jurisdiction is completely ousted. * * * [Italics added.]
As late as 1930, it was stated in Surplus Trading Co. v. Cook, 281 U.S. 647, that (p. 652):
It long been settled that where lands for such a purpose [one of those mentioned i clause 17] are purchased by the United States with the consent of the state legislature the jurisdiction theretofore residing in the State passes, in virtue of the constitutional provision, to the United States, thereby making the jurisdiction of the latter the sole jurisdiction. [Italics added.]
The italicize portions of the quoted excepts suggest that article I, section 8, clause 17, of the Constitution, may be self-executing where the conditions specified in that clause for the transfer of jurisdiction have been satisfied.
In Mason Co. v. Tax Comm'n, 302 U.S. 186 (1937), however, the
Supreme Court clearly extended the acceptance doctrine, first applied to transfers of legislative jurisdiction by State cession statutes in Fort Leavenworth R.R. v. Lowe, supra, to transfers pursuant to article I, section 8, clause 17, of the Constitution. The court said (p. 207):
Even if it were assumed that the state statute should be construed to apply to the federal acquisitions here involved, we should still be met by the contention of the Government that it was not compelled to accept, and has not accepted, a transfer of exclusive jurisdiction. As such a transfer rests upon a grant by the State, through consent or cession, it follows, in accordance with familiar principles applicable to grants, that the grant may be accepted or declined. Acceptance may be presumed in the absence of evidence of a contrary intent, but we know of no constitutional principle which com-
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indicated that transfers of legislative jurisdiction between the Federal Government and a State are matters of arrangement between the two governments. Although in that case the United States Supreme Court did not consider the question of whether State consent is essential to a State cession of legislative jurisdiction would, if applied to Federal retrocession to the State, lead to the conclusion that the latter's consent is essential in order for the retrocession to be effective. The presumption of consent, suggested in the Fort Leavenworth case, would likewise appear to apply to a State to which the Federal Government has retroceded jurisdiction.
While the reasoning of the Fort leavenworth decision casts
substantial doubt on the soundness of the view expressed in Renner v. Bennett, supra, it should be noted that the Oklahoma Supreme Court, in two cases, adopted the conclusions reached by the Ohio Supreme Court. In the later of the two Oklahoma cases, McDonnell & Murphy v. Lunday, 191 Okla. 611, 132 P. 2d 322 (1942), the court, in its syllabus to its opinion, stated that consent of the State is not essential to a retrocession of legislative jurisdiction by the Federal Government. The matter was not discussed in the opinion, however, and the similarity in the wording of the court's syllabus with that of the syllabus to the Ohio court's opinion suggests that the Oklahoma court merely accepted the Ohio court's conclusion without any extended consideration of the matter. In the earlier of the two cases, which were decided in the same year, the Oklahoma Supreme Court also stated that the effectiveness of Federal retrocession of legislative jurisdiction was not dependent upon the acceptance of the State. In that case, Ottinger Bros. v. Clark, 191 Okla. 488, 131 P.2d 94 (1942), the court said (p. 96 of 131 P.2d):
If an acceptance was necessary, then it would have been equally necessary that the Congress of the United States accept the act of the legislature of 1913 ceding Jurisdic-
tion to the United States. That was never done. But as shown in Fort Leavenworth R. Co. v. Lowe, supra, and St. Louis-San Francisco R. Company v. Saterfield, supra, said act was effective without any acceptance by Congress. The Act of Congress of 1936, supra, Therefore became effective immediately after its final passage.
The Oklahoma court's reliance on the Fort Leavenworth decision suggests that its statement that acceptance by the State is not necessary means that there need not be any express acceptance. As was indicated above, the United States Supreme Court in Fort Leavenworth R. R. v. Lowe, supra, stated that there was a presumption of acceptance; it clearly indicated, however, that while it might not be necessary to have an express acceptance, nevertheless, the Federal Government could reject a State's offer of legislative jurisdiction.
While the decision of the Ohio court in Renner v. Bennett,
supra, provides some authority for the proposition that a Federal retrocession of legislative jurisdiction is effective irrespective of the State's wishes in the matter, the later decision of the United States Supreme Court in Fort Leavenworth R. R. v. Lowe, supra, appears to support the contrary conclusion; for if, as the United States Supreme Court there indicated, transfers of legislative jurisdiction other than under clause 17 are matters of arrangement between the Federal Government and a State, and if the former may reject a State's offer of legislative jurisdiction, the same reasoning would support the conclusion that a State might likewise reject the Federal Government's offer of a retrocession of legislative jurisdiction. The Oklahoma Supreme Court's decisions do not, for the reasons indicated above, appear to be reliable authority for a contrary conclusion. The reasoning in the Fort Leavenworth R. R. case further suggests, however, that in the absence of a rejection the State's acceptance of the retrocession would be presumed.
Exception.--A possible exception to the rule that a State
57may reject a retrocession of legislative jurisdiction may consist of cases in which, as is indicated below, changed circumstances no longer permit the Federal Government to exercise legislative jurisdiction, as for example, where the Federal Government has disposed of the property.
DEVELOPMENT OF RESERVATIONS IN CONSENT AND SESSION STATUTES:
Former Federal requirement (R.S. 355) for exclusive jurisdiction.--
Under the act of September 11, 1841 (and subsequently under section
355 of the Revised Statutes of the United States, prior to its
amendment by the act of February 1, 1940), the expenditure of public
money for the erection of public buildings on any site or land
purchased y the United States was prohibited until the State had
consented to the acquisition by the United States of the site upon
which the structure was to be erected. An unqualified State consent,
it has been seen, transfers exclusive legislative jurisdiction to the
United States. But State statutes often contained conditions or
reservations which resulted in a qualified consent inconsistent with
the former requirements of R. S. 355. In construing State statutes
during the 1841-1940 period, the Attorneys General of the United
States was essential in order to meet the requirements of R. S. 355.
Attorneys General expressed differing views, however, as to what
constitutes such a consent.
In at least two opinions, the Attorney General held that State
consent given subject to the condition that the State retain concurrent jurisdiction with the United States granted
58the requisite consent of the State to a proposed purchase. Also, the Attorney General in other opinions held that, if an act of a State legislature amounted to a "consent," then any attempted exceptions, reservations or qualifications in the act were void, since, consent being given by the legislature, the Constitution vested exclusive jurisdiction over the place, beyond the reach of both Congress and the State legislature.
The view was also expressed, on the other hand, that State
statutes granting the "right of exclusive legislation and concurrent jurisdiction" failed to transfer the requisite jurisdiction. And statutes consenting to the purchase of land by the United States which provided that the State should retain concurrent jurisdiction for he trial and punishment of offenses against the laws of the State did not satisfy the requirements of section 355 of the Revised Statutes. States statutes consenting to the purchase of lands with reservation of (1) the right to administer criminal laws on lands acquired by the United States for Federal building sites, (2) the right to punish offenses against State laws committed on sites for United States buildings or (3) civil and criminal jurisdiction over persons in territory ceded to the United States for Federal buildings were found not compatible with the requirements of R. S. 355.
In addition, the Attorney General expressed the view that a
State statute ceding jurisdiction to the United States was insufficient to meet the requirements of R. S. 355 because express reservations therein imposing State taxation, labor, safety and
59health laws are inconsistent with exclusive jurisdiction; and statutes expressing qualified consent to acquisitions of land by the United States, it was held by the Attorney General, did not meet the requirements of R.S. 355.
Therefore, it may well be said that, until the 1940 amendment to
R. S. 355 was enacted, it was the view of Attorneys General of the United States that cessions by a State had to be free from conditions or reservations inconsistent with Federal exercise of exclusive legislative jurisdiction.
This view is compatible with an opinion of the Attorney General
of Illinois, who ruled that under section 355 of the Revised Statutes a State in ceding land to the United States with a transfer of exclusive jurisdiction may only reserve the right to serve criminal and fugitives from justice who have committed crimes and fled to such ceded territory to the same extent as might be done if the criminal or fugitive had fled to another part of the State.
Earlier theory that no reservations by State possible.--It was
at one time thought that article I, section 8, clause 17, did not
permit the reservation by a State of any jurisdiction over an area
falling within the purview of that clause except the right to serve
criminal and civil process. This, as was indicated in Chapter II, in
1819, Justice Story, in United States v. Cornell, supra, expressed
doubts as to "whether congress are by the terms of the constitution,
at liberty to purchase lands for forts, dockyards, &c., with the
consent of a state legislature, where such consent is so qualified
that it will not justify the 'exclusive jurisdiction,' of congress
In support of Justice Story's view, it may be noted that clause
17 does not, by its terms, suggest he possibility of concurrent
60or partial jurisdiction. Moreover, the considerations cited by Madison and others in support of clause 17 suggest that the framers of the Constitution sought to provide a method of enabling the Federal Government to obtain complete and sole jurisdiction over certain areas within the States. Whatever the merits of Justice Story's suggestion may be, however, it is clear that his views do not represent the law today.
State authority to make reservations in cession statutes
recognized.--The principle that Federal legislative jurisdiction over an area within a State might be concurrent or partial, as well as exclusive, was not judicially established until 1885, and it was approved by the Supreme Court in a case involving the acquisition of a degree of legislative jurisdiction less than exclusive pursuant to a State cession statute instead of under article I, section 8, clause 17, of the Constitution. In that year, the Supreme Court, in Fort Leavenworth R.R. v. Lowe, 114 U.S. 525, said (p. 539):
As already stated, the land constituting the Fort Leavenworth military Reservation was not purchased, but was owned by the United States by cession 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 Fort Leavenworth R.R. case the State of Kansas had
reserved the right not only to serve criminal and civil process
61but also the right to tax railroad, bridge, and other corporations, and their franchises and property in the military reservation. As a result of this reservation, the Federal Government was granted only partial legislative jurisdiction, and such limited legislative jurisdiction, provided for by a State cession statute, was held to be valid. This view has prevailed since 1885, but not until 1937 did the Supreme Court adopt a similar view as to transfers of legislative jurisdiction pursuant to article I, section 8, clause 17, of the Constitution.
In a case decided after the Fort Leavenworth R. R. case, Crook,
Horner & Co. v. Old Point Comfort Hotel Co., 54 Fed. 604 (C.C.E.D.Va., 1893), the court implied the same doubts that had been expressed in the Cornell case concerning the inability of the Federal Government to acquire through a State consent statute less than exclusive jurisdiction provided for in clause 17. Again, the same view appears to have been expressed by the Supreme Court in United States v. Unzenta, 281 U.S. 138 (1930), in which it was said (p. 142):
When the United States acquires title to lands, which are purchased by the consent of the legislature of the State within which they are situated "for the erection of forts, magazines, arsenals, dockyards and other needful buildings," (Const. Art. I, sec. 8) the Federal jurisdiction is exclusive of all State authority. With reference to land otherwise acquired, this Court said in Ft. Leavenworth Railroad Company v. Lowe, 114 U.S. 525, 539, 541, that a different rule applies, that is, that the land and the buildings erected thereon for the uses of the national government will be free from any such interference and jurisdiction of the State as would impair their effective use for the purposes for which the prop-
perty was acquired. When, in such cases, a State cedes jurisdiction to the United States, the State may impose conditions which are not inconsistent with the carrying out of the purpose of the acquisition. * * *
A distinction was thus drawn, insofar as the reservation by the State of legislative jurisdiction is concerned, between transfers of legislative jurisdiction pursuant to article I, section 8, clause 17, of the Constitution, and transfers pursuant to a State cession statute.
State authority to make reservations in consent statutes
recognized.--In 1937 the Supreme Court for the first time sanctioned a reservation of jurisdiction by a State in granting consent pursuant to article I, section 8, clause 17, of the Constitution, although an examination of the State consent statutes set forth in appendix B of part I of this report discloses that such reservations had not, as a matter of practice, been uncommon prior to that date. In 1937, the Supreme Court, in James v. Drave Contracting Co., 302 U.S. 134 (1937), sustained the validity of a reservation by the State of West Virginia, in a consent statue, of the right to levy a gross sales tax with respect to work done in a federally owned area to which the consent statute was applicable. In sustaining the reservation of jurisdiction in a State consent statute, the Supreme Court said (pp. 147-149):
It is not questioned that the State may refuse its consent and
retain jurisdiction consistent with the governmental purposes for which the property was acquired.
The right of eminent domain inheres in the Federal Government by virtue of its sovereignty and thus it may, regardless of the wishes either of the owners or of the States, acquire the lands which it needs within their borders. Kohl v. United States, 91 U.S. 367, 371, 372. In that event, as in cases of acquisition by purchase without consent of the State, jurisdiction is dependent upon cession by the State, jurisdiction is dependent upon cession by the State and the State may qualify its cession by reservations not inconsistent with the governmental uses. * * * The result to the Federal Government is the same whether consent is refused and cession is qualified by a reservation of concurrent jurisdiction, or consent to the acquisition is granted with a like qualification. As the Solicitor General has pointed out, a transfer of legislative jurisdiction carries with it not only benefits but obligations, and it may be highly desirable, in the interest both of the national government and of the State, that the latter should not be entirely ousted of its jurisdiction. The possible importance of reserving to the State jurisdiction for local purposes which involve no interference with the performance of governmental functions is becoming more and more clear as the activities of the Government expand and large areas within the States are acquired. There appears to be no reason why the United States should be compelled to accept exclusive jurisdiction or the State be compelled to grant it in giving its consent to purchases. Normally, where governmental consent is essential, the consent may be granted upon terms appropriate to the subject and
transgressing no constitutional limitation. * * * * * Clause 17 contains no express stipulation that the consent of the State must be without reservations. We think that such a stipulation should not be implied. We are unable to reconcile such an implication with the
freedom of the State and its admitted authority to refuse or qualify cessions of jurisdiction when purchases have been made without consent or property has been acquired by condemnation. In the present case the reservation by West Virginia of concurrent jurisdiction did not operate to deprive the United States of the enjoyment of the property for the purposes for which it was acquired, and we are of the opinion that the reservation was applicable and effective.
Retention by Federal Government of less than exclusive
jurisdiction on admission of State.--The courts have not had occasion to rule on the question of whether the Federal Government, at the time statehood is granted to a Territory, may retain partial or concurrent jurisdiction, instead of exclusive jurisdiction, over an area within the exterior boundaries of the new State. There appears to be no reason, however, why a degree of legislative jurisdiction less than exclusive in Fort Leavenworth R. R. v. Lowe, supra, and James v. Drawo Contracting Co., supra, the Supreme Court would conclude that partial or concurrent legislative jurisdiction may not be retained.
Non-interference with Federal use now sole limitation on
reservations by State.--At this time the quantum of jurisdiction which may be reserved in a State cession or consent statute is almost completely within the discretion of the State, subject always, of course, to Federal acceptance of the quantum tendered by the State, and subject also to non-impingement of the reservation upon any power or authority vested in the Federal Government by various provisions of the Constitution. In Fort Leavenworth R. R. v. Lowe, supra, the Supreme Court indicated (p. 539) that a cession might be accompanied with such conditions as the State might see fit to annex "not inconsistent with the free and effective use of the
65fort as a military post." In Arlington Hotel Company v. Fant, 278 U.S. 439 (1929), the Supreme Court likewise indicated (p. 451) that the State had complete discretion in determining what conditions, if any, should be attached to a cession of legislative jurisdiction, provided that it "saved enough jurisdiction for the United States to enable it to carry out the purpose of the acquisition of Jurisdiction." In United States v. Unzeuta, 281 U.S. 138 (1930). the Supreme Court stated (p. 142) that in the cession statute the State "may impose conditions which are not inconsistent with the carrying out of the purpose of the acquisition." While, it will be noted, these limitations on State reservations of jurisdiction over Federal property all related to reservations in cession statutes, no basis for the application of a different rule to reservations in a consent statute would seem to exist under the decision in James v. Dravo Contracting Co., supra. And it should be further noted that the Supreme Court in the Drave case implied a similar limitation as to the discretion of a State in withholding jurisdiction under a consent statute by stating (p. 149) that the reservation involved in that case "did not operate to deprive the United States of the enjoyment of the property for the purposes for which it was acquired."
Specific reservations approved.--While the general limitation of
non-interference with Federal use has been stated to apply to the exercise by a State of its right to reserve a quantum of jurisdiction in its cession or consent statute, apparently in no case to date has a court had occasion to invalidate a reservation by a State as violative of that general limitation. State jurisdictional reservations which have been sustained by the
66courts include the reservation of the right to tax privately owned railroad property in a military reservation (Fort leavenworth R.R. v.Lowe, supra; United States v. Unzeuta, supra); to levy a gross sales tax with respect to work done in an area of legislative jurisdiction (James v. Dravo Contracting Co., supra; to tax the sale of liquor in a national park subject to legislative jurisdiction (Collins v. Yosemite Park, 304 U.S. 518 (1938)); to permit residents to exercise the right of suffrage (Arapojolu v. McMenamin, 113 Cal.App.2d 824, 249 P.2d 318 (1952)); and to have criminal jurisdiction as to any malicious, etc., injury to the buildings of the Government within the area over which jurisdiction had been ceded to the United States (United States v. Andem, 158 Fed. 996 (D.N.J., 1908)0. And, of course, there are numerous areas, used by the Federal Government for nearly all of its many purposes, as to which the several States retain all legislative jurisdiction, solely or concurrently with the United States, or as to which they have reserved a variety of rights while granting legislative jurisdiction as to other matters to the Federal Government, and as to which no question concerning the State-retained jurisdiction has been raised.
LIMITATIONS ON AREAS OVER WHICH JURISDICTION MAY BE ACQUIRED BY
CONSENT OF STATE UNDER CLAUSE 17: In general.--Article I, section 8, clause 17, of the Constitution, provides that the Congress shall have the power to exercise exclusive legislation over "Places" which have been "purchased" by the Federal Government, with the consent of the legislature of the State, "for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings." The quoted words serve to limit the scope of clause 17 (but do not apply, since the decision in the Fort Leavenworth R.R. case, supra, to transfers of jurisdiction by other means). They exclude from its purview places which were not "purchased" by the
67Federal Government, and, if the rule of ejusdem generis applied, places which, though purchased by the Federal Government, are for use for purposes not enumerated in the clause.
Area required to be "purchased" by Federal Government.--The
"purchase" requirement contained in clause 17 serves to exclude from its operation places which had been part of the public domain and have been reserved from sale. See Fort Leavenworth R.R. v. Lowe, supra; United States v. Unzeuta, supra; Six Cos., Inc. v. De Vinney, 2 F.Supp. 693 (D.Nev., 1933); Lt. Louis-San Francisco Ry. v. Satterfield, 27 F.2d 586 (C.A. 8, 1928). It likewise serves to exclude places which have been rented to the United States Government. Unites States v. Tierney, 28 Fed.Cas. 159, No. 16,517 (C.C.S.D.Ohio, 1864); Mayor and City Council of Baltimore v. Linthicum, 170 Md. 245, 183 Atl. 531 (1936); People v. Bondman, 161 Misc. Rep. 145, 291 N.Y.S. 213 (1936). Acquisition by the United States of less than the fee is insufficient for the acquisition of exclusive jurisdiction under clause 17. Ex Parte Hebard, 11
68Fed. Cas. 1010, No. 6312 (C.C.D.Kan., 1877); United States v. Schwalby, 8 Tex.Civ.App. 679, 29 S.W. 90 (1894), writ of error refused, 87 Tex. 604, 30 S.W. 435, rev'd. on other grounds, 162 U.S. 255. And Federal purchase of property at a tax sale has been held not to transfer jurisdiction. United States v. Penn, 48 Fed. 669 (C.C.E.D.Va., 1880).
The term "purchased" does, however, include acquisitions by
means of condemnation proceedings,as will as acquisitions pursuant to negotiated agreements. See James v. Dravo Contracting Co., supra; Mason Co. v. Tax Com'n, supra; Holt v. United States, 218 U.S. 245 (1910); Chaney v. Chaney, 53 N.M. 66, 201 P.2d 782 (1949); Arledge v. Mabry, 52 N.M. 303, 197 P.2d 884 (1948); People v. Collins, 105 Cal. 504, 39 Pac. 16, 17 (1895). The term also includes cessions of title by a State to the Federal Government. United States v. Tucker, 122 Fed. 518 (W.D.Ky., 1903). A conveyance of land to the United States for a consideration of $1 has likewise been regarded as a purchase within the meaning of clause 17. 39 Ops. A.G. 99 (1937). Acquisition of property by a corporation created by a special act of Congress as an instrumentality of the United States for the purpose of operating a soldiers' home constitutes a purchase by the Federal Government for purposes of clause 17. Sinks v. Reese, supra; People v. Mouse, 203 Cal. 782, 265 Pac. 944, app. dism., sub nom. California v. Mouse, 278 U.S. 662, cert. den., 278 U.S. 614 (1928); State v. Intoxicating Liquors, 78 Me. 401, 6 Atl. 4 (1886); State ex rel.
69Lyle v. Willett, 117 Tenn. 334, 97 S.W. 299 (1906); Foley v. Shriver, 81 Va. 568 (1886). However, it has been held that a purchase by such a corporation does not constitute a purchase by the Federal Government. In re O'Connor, 37 Wis. 379, 19 Am. Rep. 765 (1875); In re Kelly, 71 Fed. 545 (C.C.E.D. Wis., 1895); Brooks Hardware Co. v. Greer, 111 Me. 78, 87 Atl. 889 (1911), (question was left open); see also Tagge v. Gulzow, 132 Neb. 276, 271 N.W. 803 (1937). Since acquisitions by condemnation are construed as purchases under article I, section 8, clause 17, of the Constitution, it seems that donations would also be interpreted as purchases. See Pothier v. Rodman, 285 Fed. 632 (D.R.I., 1923), aff'd., 264 U.S. 399 (1924); question raised but decision based on other grounds in Mississippi River Fuel Corporation v. Fontenot, 234 F.2d 898 (C.A. 5, 1956), cert. den., 352 U.S. 916.
In State ex rel. Board of Commissioners v. Bruce, 104 Mont. 500,
69 P.2d 97 (1937), the court considered the question when a purchase is completed. Originally, Montana had a combined cession and consent statute,reserving to the State only the right to serve process. Another statute was enacted in 1934 consenting to the acquisition of and ceding jurisdiction over lands around Fort Peck Dam, but reserving to the State certain rights, including the right to tax within the territory. The Government, prior to the passage of the second act, secured options to purchase land from individuals, entered into possession and made improvements under agreements with the owners. Contracts of sale and deeds were not executed until after the passage of the second act. The court held that by going into possession and making improvements the United States accepted the option and completed a binding obligation which was a "purchase" under the Constitution, and that the State had no right to tax within the ceded territory. The case came up again on the same facts in light of several Supreme Court decisions. The Supreme Court of Montana reached the same decision. State ex rel. Board of Commissioners v. Bruce, 106 Mont. 322, 77 P.2d 403 (1938), aff'd., 305 U.S. 577. But
70in Valley County v. Thomas, 109 Mont. 345, 97 P.2d 345 (1939), the Montana court came to a contrary conclusion, specifically overruling the Bruce cases.
Term "needful Buildings" construed. The words "Forts,
Magazines, Arsenals, dock-Yards, and other needful Buildings," as they appear in article I, section 8, clause 17, of the Constitution, generally have not been construed according to the rule of ejusdem generis; the words "other needful Buildings"have been construed as including structures not of a military character ad any buildings or works necessary for governmental; purposes. 28 Ops. A.G. 185 (1935). Thus, post offices, courthouses and customs houses all have been held to constitute "needful Buildings." The term "needful Buildings" in
71clause 17 has also been held to include national cemeteries, penitentiaries, steamship piers, waters adjoining Federal lands, aeroplane stations, Indian schools, canal locks and dams, National Homes for Disabled Volunteer Soldiers, res-
72ervoirs and aqueducts, and a relocation center. In Nikis v. Commonwealth, 144 Va. 618, 131 S.E. 236 (1926), it was held that the abutment and approaches connected with a bridge did not come within the term "buildings," but a cession statute additionally reciting consent rather than a simple consent statute was there involved.
The Attorney General has said (26 Ops. A.G. 289 (1907), (p.
There can be no question and, so far as I am aware, none has been raised that the word "buildings" in this passage [of the Constitution] is used in a sense sufficiently broad to include public works of any kind * * *
The most recent, and most comprehensive, definition of the term "needful Buildings," as it appears in clause 17, is to be found in James v. Dravo Contracting co., 302 U.S. 134, in which the court said (pp. 142-143):
Are the locks and dams in the instant case "needful buildings" within the purview of Clause 17? The State contends that they are not. If the clause were construed according to the rule of ejusdem generis, are those of the same sort as forts, magazines, arsenals and dockyards, that is, structures for military purposes. And it may be that the thought of such "strongholds" was uppermost in the minds of the framers. Eliot's Debates, Vol. 5, pp. 130, 440, 511; Cf. Story on the Constitution,
Vol. 2 Sec. 1224. But such a narrow construction has been found not to be absolutely required and to be unsupported by sound reason in view of the nature and functions of the national government which the Constitution established. * * * We construe the phrase"other needful buildings" as embracing whatever structures are found to be necessary in the performance of the functions of the Federal Government. In this decision,the Supreme court expressed its sanction to the
conclusion therefore generally reached by other authorities, that the rule of ejusdem generis had been renounced, and that acquisition by the United States for any purpose might be held to fall within the Constitution, where a structure is involved.
LIMITATIONS ON AREAS OVER WHICH JURISDICTION MAY BE ACQUIRED BY
CESSION OF STATE: Early view.--Until the Fort leavenworth R.R. case, the courts had made no distinction between consents and cessions, and had treated cessions as the "consent" referred to in the Constitution. United States v. Davis, 25 Fed. Cas. 781, No. 14,930 (C.C.D.Kan..,
741877). In the case of In re O'Connor, 37 Wis. 379, 19 Am. Rep. 765 (1875), decided before Fort Leavenworth R.R. v. Lowe, supra, the stated (p. 387):
For it is not competent for the legislature to abdicate its jurisdiction over its territory, except where the lands are purchased by the United States, for the specific purposes contemplated by the constitution. When that is done, the state may cede its jurisdiction over them to the United States. Present view.--After the Fort Leavenworth R.R. case, it was held
that either a purchase with the consent of the States or an express cession of jurisdiction could accomplish a transfer of legislative jurisdiction. United States v. Tucker, 122 Fed. 518 (W.D. Ky., 1903); Commonwealth v. King, 252 Ky. 699, 68 S.W.2d 45 (1934); State ex rel. Jones v. Mack, 23 Nev. 359, 47 Pac. 763 (1897); Curry v. State, 111 Tex.Cr.App. 264, 12 S.W.2d (1928); 9 Ops.A.G. 263 (1858); 13 Ops.A.g. 411 (1871); 15 Ops.A.G. 480 (1887); cf. United States v. Andem, 158 Fed. 996 (D.N.J., 1908).
By means of a cession of legislative jurisdiction by a State, the
Federal Government may acquire legislative jurisdiction not only over areas which fall within the purview of article I, section 8, clause 17, of the Constitution, but also over areas not within the scope of that clause. While a State may cede to the Federal Government legislative jurisdiction over a "place" which was "purchased" by the Federal Government for the "Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings," it is not essential that an area be "purchased" by the Federal Government in order to be the subject of a State cession statute. Thus, the transfer of legislative jurisdiction pursuant to a State cession statute has
75been sustained with respect to areas which were part of the public domain and which have been reserved from sale or other disposition. Fort Leavenworth R.R. v. Lowe, supra; Chicago, Rock Island & Pacific Railway v. McGlinn, 114 U.S. 542 (1885); Benson v. United States, 146 U.S. 325 (1892). It is not even essential that the Federal Government own an area in order to exercise with respect to it legislative jurisdiction ceded by a State. Thus, a privately owned railroad line running through a military reservation may be subject to federal legislative jurisdiction as the result of a cession. Fort Leavenworth R.R. v. Lowe, supra; Chicago, etc., Ry. v. McGlinn, supra; United States v. Unazeuta, supra. Similarly, a privately operated hotel or bath house leased from the Federal Government and licitation a military reservation may, as a result of a State cession statute, be subject to Federal legislative jurisdiction. Arlington Hotel Company v. Fant, 278 U.S. 439 (1929); Buckstaff Bath House Co. v. McKinley, 308 U.S. 358 (1939). Superior Bath House Co. v. McCaroll, 312 U.S. 176 (1941). Legislative jurisdiction acquired pursuant to a State cession statute may extend to privately owned land within the confines of a national park. Petersen v. United States, 191 F.2d 154 (C.A. 9, 1951), cert. den., 342 U.S. 885. It will not so extend if the State's cession statute limits cession to lands owned by the Government. Op. A.G., Cal., No. NS3019 (Oct. 22, 1940). In United States v. Unzeuta, supra, the extension of Federal legislative jurisdiction over a privately owned railroad right-of-way located within an area which was owned by the Federal Government and subject to the legislative jurisdiction of the Federal Government was justified as follows (pp. 143-145):
* * * There was no express exception of jurisdiction over this right of way, and it can not be said that there
was any necessary implication creating such an exception. The proviso that the jurisdiction ceded should continue no longer than the United States shall own and occupy the reservation had reference to the future and cannot be regarded as limiting the cession of the entire reservation as it was known and described. As the right of way to be located with the approval of the Secretary of War ran across the reservation, it would appear to be impracticable for the State to attempt to police it, and the Federal jurisdiction may be considered to be essential to the appropriate enjoyment of the reservation for the purpose to
which it was devoted. * * * * * The mere fact that the portion of the reservation in question is actually used as a railroad right of way is not controlling on the question of jurisdiction. Rights of way for various purposes,such as for railroads, ditches. pipe lines, telegraph
and telephone lines across Federal reservations, may be entirely compatible with exclusive jurisdiction ceded to the United States. * * * While the grant of the right of way to the railroad company contemplated a permanent use, this does not alter the fact that the maintenance of the jurisdiction of the United States over the right of way, as being within the reservation, might be necessary in order to secure the benefits intended to be derived from the reservation. This excerpt from the court's opinion appears to indicate that
the proctocolitis of a given situation will be highly persuasive, if not conclusive, on the issue of whether Federal legislative jurisdiction may be exercised over privately owned areas used for non-governmental purposes.
Cessions of legislative jurisdiction are free not only from the
requirements of article I, section 8, clause 17, as to purchase--and, with it, ownership--but they are also free from the requirement that the property be used for one of the purposes enumerated in clause 17, assuming that however broad
77those purposes are under modern decisions the term "other needful Buildings" used therein may have some limitation. In Collins v. Yosemite Park Co., 304 U.S. 518 (1938), in which the Supreme Court sustained the exercise of Federal legislative jurisdiction acquired pursuant to a State cession statute,it was said (pp. 529-530):
* * * There is no question about the power of the United States to exercise jurisdiction secured by cession, thought this is not provided for by Clause 17. And it has been held that such a cession may be qualified. It has never been necessary, heretofore, for this Court to determine whether or not the United States has the constitutional right to exercise jurisdiction over territory, within the geographical limits of a State, acquired for purposes other than those specified in Clause 17. It was raised but not decided in Arlington Hotel v. Fant, 278 U.S. 439, 454. It was assumed without discussion in Yellowstone Park Transportation Co. v. Gallatin County, 31 F.2d 644. On account of the regulatory phases of the Alcoholic Beverage control Act of California, it is necessary to determine that question here. The United States has large bodies of public lands. These properties are used for forests,parks, ranges,wild life sanctuaries, flood control, and other purposes which are not covered by Clause 17. In Silas Mason Co. v. Tax commission of Washington, 302 U.S. 186, we upheld in accordance with the right of the United States to acquire private property for use in "the reclamation of arid and semiarid lands" and to hold its purchases subject to state jurisdiction. In other instances,it may be deemed important or desirable by the National Government and the State Government in which the particular property is located that exclusive jurisdiction be vested in the United States by cession or consent. No ques-
tion is raised as to the authority to acquire land or provide for national parks. As the National Government may, "by virtue of its sovereignty" acquire lands within the border of states by eminent domain and without their consent, the respective sovereignties should be in a position to abject their jurisdiction. There is no constitutional objecting to such an adjustment of right. * * *
This quoted excerpt suggests that the Federal Government may exercise legislative jurisdiction, ceded to it by a State, over any area which it might own, acquire, or use for Federal purposes. In Bowen v. Johnston, 306 U.S. 19 (1939), the Supreme Court again indicated that it was constitutionally permissible for the Federal Government to exercise over a national park area legislative jurisdiction which might be ceded to it by a State.
Specific purposes for which cessions approved.--While the
Collins case, supra, indicates the current absence of limitations, with respect to use or purpose for which the Federal Government acquires land, on the authority to transfer legislative jurisdiction to that Government by cession, it is of interest to note something of the variety of specific uses and purposes for which cessions had been deemed effective: post offices, court-houses and custom houses: United States v. Andem, 158 Fed. 996 (D.N.J., 1908); Brown v. United States, 257 Fed. 46 (C.A. 5, 1919), rev'd. on other grounds, 256 U.S. 335 (1921); State ex rel. Jones v. Mack, 23 Nev. 359, 47 Pac. 763 (1897), (cession statute treated as a consent); Saver v. Steinbasuer, 14 Wis. 70 (1881); lighthouses: Newcomb v. Rockport, 183
79Mass. 74, 66 N.E. 587 (1903); national penitentiary: Steele v. Halligan, 229 Fed. 1011 (W.D. Wash., 1916); national home for disabled volunteer soldiers: People v. Mouse, 203 Cal. 782, 265 Pac. 944, app. dem., 278 U.S. 662 (1928); bridge for military purposes: 13 Ops. A.G. 418 (1871); national parks: Robbins v. United States, 284 Fed. 39 (C.A. 8, 1922); Yellowstone Park Transp. Co. v. Gallatin County, 31 F.2d 644 (C.A. 9, 1929), cert. den., 280 U.S. 555; State ex rel. Grays Harbor Construction Co. v. Department of Labor and Industries, 167 Wash. 507, 10 P.2d 213 (1932). Cf. Via v. State Commission on Conservation, etc., 9 F.Supp. 556 (W.D.Va., 1935), aff'd, 296 U.S. 549 (1939); waters contiguous to nave yard: Ex parte Tatem, 23 Fed. Cas. 708, No. 13,759 (E.D.Va., 1877).
LIMITATIONS ON AREAS OVER WHICH JURISDICTION MAY BE RETAINED BY
FEDERAL RESERVATION: The courts have not, apparently,had occasion to consider whether any limitations exist with respect to the types of areas in which the Federal Government may exercise legislative jurisdiction by reservation at the time of granting statehood. There appears, however, to be no reason for concluding that Federal legislative jurisdiction may not be thus retained with respect to all the variety of areas over which Federal legislative jurisdiction may be ceded by a State.
PROCEDURAL PROVISIONS IN STATE CONSENT OR CESSION STATUTES: A
number of State statutes providing for transfer of legislative jurisdiction to the Federal Government contain provisions for the filing of a deed, map, plat, or description pertaining to the land involved in the transfer, or for other action by Federal or State authorities, as an incident of such transfer. Such provisions have variously held to constitute conditions precedent to a transfer of jurisdiction, or as
80pertaining to matters of form noncompliance with which will not defeat an otherwise proper transfer. It has also been held that there is a presumption of Federal compliance with State procedural requirements. Steele v. Halligan, 229 Fed. 1011 (W.D.Wash., 1916).
JUDICIAL NOTICE OF FEDERAL EXCLUSIVE JURISDICTION: Comfit of
decisions.--There is a conflict between decisions of several State courts with respect to the question whether the court will take judicial notice of the acquisition by the Federal Government of exclusive jurisdiction. In Baker v. State, 47 Tex. Cr.App. 482, 83 S.W. 1122 (1904), the court took judicial notice that a certain parcel of land was owned by the United States and was under its exclusive jurisdiction. And in Lasher v. State, 30 Tex. Cr.App. 387, 17 S.W. 1064 (1891), it was stated that the courts of Texas would take judicial notice of the fact that Fort McIntosh is a military post, ceded to the United States, and that crimes committed within such fort are beyond the jurisdiction of the State courts.
A number of States uphold the contrary view, however. In People
v. Collins, 105 Cal. 504, 39 Pac. (1895), the court
81took the view that Federal jurisdiction involves a question of fact and that the courts would not take judicial notice of such questions.
In United States v. Carr, 25 Fed.Cas. 306, No. 14,732
(C.C.S.D.Ga., 1872), the court held that allegation of exclusive Federal jurisdiction in the indictment, without a deniable the defendant during the trial, was sufficient to establish Federal jurisdiction over the crime alleged. As to lands acquired by the Federal Government since the amendment of section 355 of the Revised Statutes of the United States on February 1, 1940, which provided for formal acceptance of legislative jurisdiction, it would appear necessary to establish the fact
82of such acceptance in order to establish Federal jurisdiction. In any event, whether the United States has legislative jurisdiction over an area, and the extent of any such jurisdiction, involve Federal questions, and a decision on these questions by a State court will not be binding on Federal courts.