Jewell v. Cleveland Wrecking Co., 9943.

• Decision Date: 02 November 1938
• Docket Number: No. 9943.,9943.
• Citation: 28 F. Supp. 364
• Court: U.S. District Court — Western District of Missouri
• Parties: JEWELL v. CLEVELAND WRECKING CO. et al.

28 F. Supp. 364

JEWELL v. CLEVELAND WRECKING CO. et al.

No. 9943.

District Court, W. D. Missouri, W. D.

November 2, 1938.

Clif Langsdale and Roy W. Rucker, both of Kansas City, Mo., for plaintiff.

Guy Green, Jr., of Cowgill & Popham's law firm, of Kansas City, Mo., for defendants.

REEVES, District Judge.

While there is a diversity of citizenship in this case, the amount in controversy is not within the jurisdiction of the court. The parties understand this, but the case was removed solely upon the ground that the cause of action arose on property owned by the United States and over which its jurisdiction had been extended by law.

It appears from the pleadings that the plaintiff claims he was injured on the 14th of March, 1938 while engaged as an employee of the defendant in wrecking or razing the old Federal Postoffice Building at 9th and Grand Avenue in Kansas City, Missouri.

The State of Missouri by statute (Section 11072 and 11073, R.S.Mo.1929, Mo.St. Ann. §§ 11072, 11073, p. 4857), consented to the acquisition of property by the United States for all of the purposes mentioned in Clause 17, Section 8, Article I of the Constitution of the United States, U.S.C. A., as follows: "* * * 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, * * * and other needful Buildings."

And it was specifically provided that: "The jurisdiction of the state of Missouri in and over all such land purchased or acquired * * * is hereby granted and ceded to the United States", etc.

There was a reservation to the state for "full authority to serve and execute all process, civil and criminal, issued under the authority of the state within such lands or the buildings thereon."

It is the contention of the defendant that by reason of this grant and its acceptance by the United States the case not only falls within the rule of a federal question, but that exclusive jurisdiction is in the United States.

1. It must be understood at the outset that even the presence of a federal question does not warrant removal except there be present the requisite amount in controversy. Unless, therefore, the national government has sole and exclusive jurisdiction, the case should be remanded.

2. In examining the authorities, without exception, the courts refer to the case of Chicago R. I. & Pacific R. Co. v. McGlinn, 114 U.S. 542, 5 S.Ct. 1005, 29 L.Ed. 270, as fundamental and basic.

That case involved the precise question raised here. The legislature of Kansas ceded to the national government specified territory for a military reservation at Fort Leavenworth. It was enacted by the state of Kansas: "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.'"

No stronger language could have been or was employed in the cession of jurisdiction to the United States in the case of the postoffice site in question. The legislature of Kansas had previously enacted a law relating to the killing or the wounding of livestock by railroads. The plaintiff in error, Railroad Company, had violated, as it was alleged, said statute within the military reservation. A suit was filed in a state court to recover the damages provided in the statute. It was contended in the state court, and finally on writ of error in the Supreme Court, that the law of Kansas was inoperative because all jurisdiction over the reservation was ceded to the United States and there was therefore no organized government or municipality within the limits of said territory. The Supreme Court, 114 U.S. loc. cit. 547, 5 S.Ct. loc. cit. 1007, 29 L.Ed. 270, said:

"The government of the state of Kansas extended over the reservation, and its legislation was operative therein, except so far as the use of the land as an instrumentality of the general government may have excepted it from such legislation. In other respects, the law of the state prevailed."

Previously the court had said that the laws of the state over ceded property remained in force until superseded "by direct action of the new government."

Emphasis is placed in the above excerpt on the use of the word "government". The Supreme Court specifically said that the government of Kansas, and not alone the laws of Kansas, extended over the reservation. The court put a limitation upon the government of the State of Kansas so that it could not become operative so as to control in any way whatever the use of the land as a governmental agency.

As a very practical proposition, the national government, in acquiring postoffice sites...