In re Kelly

• Decision Date: 27 December 1895
• Citation: 71 F. 545
• Parties: In re KELLY.
• Court: U.S. District Court — Eastern District of Wisconsin

71 F. 545

In re KELLY.

United States Circuit Court, E.D. Wisconsin.

December 27, 1895

The petitioner, Thomas Kelly, stands committed for trial upon mittimus, issued by the commissioner of this court upon the charge that, on October 29, 1895, he assaulted, with a dangerous weapon, one Patrick Coghlan, with intent to kill and murder, at Northwestern Branch National Home for Disabled Volunteer Soldiers, 'a place ceded to, and then and there being within the exclusive jurisdiction of, the United States,' and in said district, in violation of section 5391, Rev. St. U.S. The place of the alleged offense is within the boundaries of Milwaukee county, in the state of Wisconsin, and is the locality referred to and described in chapter 275 of the Private and Local Laws of Wisconsin for 1867, entitled 'An act ceding jurisdiction to the United States over certain lands in Milwaukee county, state of Wisconsin, and to exempt said lands from taxation,' which provides as follows:

'Section 1. That jurisdiction over the several tracts of land hereinafter mentioned, be and hereby is ceded to the United States of America, to wit: All those certain tracts of land in sections twenty-six (26) and thirty-five (35) purchased by the United States of America for the purpose of locating a 'National Asylum for Disabled Volunteer Soldiers,' said several tracts of land lying and being situate in townships seven (7) north, of range twenty-one (21) east, in the town of Wauwatosa, in the county of Milwaukee and state of Wisconsin, and including all other tracts or parcels of land which shall be hereafter acquired or purchased by the United States for the purpose aforesaid; and all such lands and other property connected with said asylum are hereby exempted from taxation for any state or local purpose whatever; provided, that civil or criminal process issued from courts in the state of Wisconsin may be served within the territory hereby ceded.'

The record upon this hearing tends to show serious assault by the petitioner, an inmate of this national home for disabled volunteer soldiers, upon another inmate, and within the buildings erected and maintained for the home. This institution is one established under the provisions of an act of congress, approved March 21, 1866 (chapter 21, 14 Stat 10), entitled 'An act to incorporate a national military and naval asylum for the relief of the totally disabled officers and men of the volunteer forces of the United States,' and of acts amendatory thereof, including one of 1873 (chapter 51, 17 Stat. 417), which substituted the term 'home' for 'asylum.' These acts established a corporation under the name of the 'National Home for Disabled Volunteer Soldiers,' constituted of a board of managers, which included the president, secretary of war chief justice, and nine other members, elected by congress. Among the powers conferred they have perpetual succession may take, hold, and convey real and personal property; 'may make by-laws, rules, and regulations, not inconsistent with law, for carrying on the business and government of the home, and affix penalties thereto. ' Rev. St. Secs. 4825, 4826. They are empowered to appoint a governor and other officers for such home, procure sites, and erect buildings. Certain fines and stoppages of pay against officers and soldiers are appropriated, and the board are authorized to receive donations for the benefit of the home. All inmates are 'subject to the rules and articles of war, and in the same manner as if they were in the army. ' Rev. St. Secs. 4829-4835. The grounds in question occupied by this Northwestern Branch were purchased by, and the title taken to, the corporation, under the authority of the acts of congress referred to. Therefore, title is not, at least nominally, vested in the United States, but the means for the purchase and for the erection of the buildings were furnished by congressional appropriations, and support and maintenance has come mainly, if not wholly, from the same source.

Rublee A. Cole, for petitioner.

J. H. M. Wigman and F. P. Van Valkenburgh, for respondent.

SEAMAN District Judge (after stating the facts as above).

The courts of the United States are peculiarly of limited jurisdiction in criminal cases. Common-law crimes, as such, against the general government do not exist, and the judicial power can be exercised only over offenses which are declared and 'made punishable by the constitution, laws, or treaties of the United States,' resorting to the common law, when necessary, 'for the definition of terms by which offenses are designated. ' Pettibone v. U.S., 148 U.S. 197, 203, 13 Sup.Ct. 542. This view of the absence of a common-law jurisdiction, and that the cognizance of the federal courts respecting crimes was confined to acts which were made criminal by the legislative authority of the Union, was pronounced by the supreme court in the early case of U.S. v. Hudson, 7 Cranch, 32, and the doctrine has been constantly maintained by that court, although frequently assailed there and questioned by text writers. In that case it is further asserted that the same authority must 'declare the court that shall have jurisdiction of the offense. ' The crime with which the petitioner is charged is not specifically designated in any act of congress, but it is alleged as in violation of section 5391, Rev. St. U.S., which reads as follows:

'Sec. 5391. If any offense be committed in any place which has been or may hereafter be, ceded to and under the jurisdiction of the United States, which offense is not prohibited, or the punishment thereof is not specially provided for, by any law of the United States, such offense shall be liable to, and receive, the same punishment as the laws of the state in which such place is situated, now in force, provide for the like offense when committed within the jurisdiction of such state; and no subsequent repeal of any such state law shall affect any prosecution for such offense in any court of the United States.' This provision was originally adopted in an act of March 3, 1825, and now appears as the concluding section of chapter 3 in title 70 of the Revised Statutes. The general title is 'Crimes.' Chapter 3 is entitled, 'Crimes Arising within the Maritime and Territorial Jurisdiction of the United States,' and its provisions are clearly confined to offenses committed (1) 'within any fort, arsenal, dock-yard, magazine, or in any other place or district of country under the exclusive jurisdiction of the United States'; or (2) upon the high seas or in the waters 'within the admiralty and maritime jurisdiction of the United States and out of the jurisdiction of any particular state.' Sec. 5339. The section involved here relates to the first-mentioned class, and it is manifest, both from its terms and its context, that it intends cognizance only of crimes committed in places within the exclusive jurisdiction of the United States. The strictness of construction to be applied in such case is clearly stated in U.S. v. Bevans, 3 Wheat. 336. The sole inquiry, therefore, on this application, is whether the place of the alleged offense has been acquired and appropriated by the United States in the manner and for a purpose which confers exclusive jurisdiction. The objection was urged at the bar, on behalf of the petitioner, that this section is unconstitutional or inoperative, because the definition and punishment of offenses was made wholly dependent upon state enactments then existing, but I deem the provision unexceptionable in that regard. The state laws thus made applicable are in effect adopted by congress for the localities respectively. Ex parte Siebold, 100 U.S. 371, 388.

The question thus presented is important, and merits careful consideration. There are decisions, in various state courts of eminence, which stand in apparent conflict respecting the character and extent of the national jurisdiction over the sites of these national homes, and the determination here is of special difficulty and delicacy by reason, on the one hand, of direct adjudication by the supreme court of Wisconsin (In re O'Connor, 37 Wis. 379) that the state jurisdiction exists over the site in question for the punishment of crimes, notwithstanding the purported cession by the legislature in chapter 275, P. & L. Laws 1867, and, on the other hand, of opinions by the highest courts of Ohio and Virginia, respectively, that the federal jurisdiction over a place vested in the same national corporation for like purpose is exclusive; and by the further fact, mentioned in the opinion filed by the commissioner herein, that jurisdiction has heretofore been exercised in this court over crimes committed on this Wisconsin site, although the question now presented does not appear to have been raised. In the Case of O'Connor, Mr. Justice Cole (afterwards chief justice) delivers the unanimous opinion of the supreme court of Wisconsin, which then included Chief Justice Ryan and Associate Justice Lyon, and it was held, in substance that because the land was not purchased or acquired directly by the United States, but by this corporation, it was not within the provisions of the clause of the federal constitution under which exclusive jurisdiction must arise, and that the legislative act of 1867, purporting to cede jurisdiction to the United States, was therefore void, as 'it is not competent for the legislature to abdicate its jurisdiction over its territory, except when the lands are purchased by the United States for the specific purpose contemplated by the constitution. ' This decision was delivered in 1875, upon certiorari to the county court of Milwaukee county, in review of proceedings for a writ of habeas corpus to release the petitioner from prosecution in the...