Manley v. Burkhart

• Decision Date: 14 December 1988
• Docket Number: No. 87-2122,87-2122
• Citation: 40 Ohio St.3d 35,531 N.E.2d 1306
• Parties: MANLEY et al., Appellants, v. BURKHART, Judge, Appellee.
• Court: Ohio Supreme Court

Page 35

40 Ohio St.3d 35

531 N.E.2d 1306

MANLEY et al., Appellants, v. BURKHART, Judge, Appellee.

No. 87-2122.

Supreme Court of Ohio.

Submitted Aug. 9, 1988.

Decided Dec. 14, 1988.

On June 9, 1986, appellants, Mark Manley, Thomas O. Yoho and James Long, were each indicted by the Monroe County Grand Jury on one count of felonious assault under R.C. 2903.11(A)(1) and one count of felonious assault under R.C. 2903.11(A)(2). It is undisputed that the alleged assaults took place at the Hannibal Lock and Dam Project of the U.S. Army Corps of Engineers.

Upon denial of a motion to dismiss for want of jurisdiction, appellants petitioned the court of appeals for a writ of prohibition to prevent the Court of Common Pleas of Monroe County from proceeding to trial. The writ was denied.

The cause is now before this court on an appeal as of right.

James W. Peters, Woodsfield, for appellants.

Richard A. Yoss, Pros. Atty., for appellee.

PER CURIAM.

A writ of prohibition will issue where the relator shows that the respondent is about to exercise judicial or quasi-judicial power, that the exercise of such power is unauthorized by law, and that no other adequate remedy exists. Commercial Savings Bank v. Wyandot Cty. Court of Common Pleas (1988), 35 Ohio St.3d 192, 519 N.E.2d 647. Appellants contend that the trial court is unauthorized by law to hear this action. We disagree.

Appellants argue that the Court of Common Pleas of Monroe County lacks jurisdiction over this case because the assault took place at the Hannibal Project. According to appellants, the project is within the "special maritime and territorial jurisdiction of the United States," defined in Section 7(3), Title 18, U.S.Code, as including:

"Any * * * place purchased or otherwise acquired by the United States by consent of the legislature of the State in which the same shall be, for the erection of a fort, magazine, arsenal, dockyard, or other needful building."

Appellants argue that Congress alone can legislate for the special maritime and territorial jurisdiction, by virtue of Clause 17, Section 8, Article I of the United States Constitution, which provides:

"The Congress shall have Power * * * [t]o 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, dock-Yards, and other needful Buildings * * *."

Since locks and dams are "needful buildings," James v. Dravo Contracting Co. (1937), 302 U.S. 134, 142-143, 58 S.Ct. 208, 212-213, 82 L.Ed. 155, they fall within the special maritime and territorial jurisdiction of the United States if the land they are built on was acquired with the consent of the state within which they lie.

Thus, appellants maintain that, as the Hannibal Project is subject to the "exclusive legislation" of Congress, a state statute cannot regulate conduct there, and the trial of appellants in a state court under R.C. 2903.11 is consequently unauthorized by law.

But Section 255, Title 40, U.S. Code states in part:

"Notwithstanding any other provision of law, the obtaining of exclusive jurisdiction in the United States over lands * * * therein which have been or shall hereafter be acquired by it shall not be required; but the head or other authorized officer of any * * * agency of the Government may, in such cases and at such times as he deems desirable, accept or secure from the State in which any lands * * * under his immediate jurisdiction, custody, or control are situated, consent to or cession of such jurisdiction, exclusive or partial, not theretofore obtained, over any such lands * * * and indicate acceptance of such jurisdiction on behalf of the United States by filing a notice of such acceptance with the Governor of such State or in such other manner as may be prescribed by the laws of the State where such lands are situated. Unless and until the United States has accepted jurisdiction over lands hereafter to be acquired as aforesaid, it shall be conclusively presumed that no such jurisdiction has been accepted." (Emphasis added.)

According to appellee, the federal government has never accepted jurisdiction over the Hannibal Project pursuant to this provision; moreover, appellants do not allege otherwise. However, if the land in question was acquired before Section 255 took effect on February 1, 1940, the government is presumed to have accepted exclusive jurisdiction ceded by the state if use of the land conferred a benefit upon the United States. Ft. Leavenworth RR. Co. v. Lowe (1885), 114 U.S. 525, 528, 5 S.Ct. 995, 996, 29 L.Ed. 264. Appellants have not shown that the land was acquired before February 1 1940; therefore, we presume that it was not. ¹

Although the Constitution gives Congress exclusive jurisdiction over "Places purchased by Consent of the Legislature * * * for the Erection of * * * needful Buildings," Congress need not accept that jurisdiction. "Acceptance may be presumed in the absence of evidence of a contrary intent, but we know of no constitutional principle which compels acceptance by the United States of an exclusive jurisdiction contrary to its own conception of its interests." Silas Mason Co. v. Tax Comm. of Washington (1937), 302 U.S. 186, 207, 58 S.Ct. 233, 244, 82 L.Ed. 187. See, also, James, supra, 302 U.S. at 148, 58 S.Ct. at 215; United States v. Gliatta (C.A. 5, 1978), 580 F.2d 156, 158. By enacting Section 255, Congress chose not to accept jurisdiction unless the government gives "its affirmative assent to the transfer of exclusive or concurrent jurisdiction * * *." Gliatta, supra, at 158.

This requirement of affirmative assent is illustrated by Adams v. United States (1943), 319 U.S. 312, 63 S.Ct. 1122, 87 L.Ed. 1421. In Adams, the defendants were charged with committing rape within the special maritime and territorial jurisdiction of the United States in violation of federal law. The scene of the crime was Camp Claiborne, Louisiana, a military base acquired by the government after February 1, 1940, over which the government had not accepted jurisdiction. "Since the government had not accepted jurisdiction in the manner required by * * * [Section 255], the federal court had no jurisdiction of this proceeding." Id. at 315, 63 S.Ct. at 1123.

The United States Supreme Court has since held that Congress has police power over federally owned land by virtue of the Property Clause, Clause 2, Section 3, Article IV of the United States Constitution. However, such power is, of course, not exclusive. Kleppe v. New Mexico (1976), 426 U.S. 529, 543, 96 S.Ct. 2285, 2293, 49 L.Ed.2d 34. Hence, while the result in Adams would perhaps be...