Nikis v. Commonwealth

• Decision Date: 14 January 1926
• Parties: NIKIS. v. COMMONWEALTH.
• Court: Virginia Supreme Court

131 S.E. 236

NIKIS.

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

Jan. 14, 1926.

[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Building.]

Error to Circuit Court, Arlington County.

E. N. Nikis was convicted of conducting a retail mercantile business without obtaining a license, and he brings error. Affirmed.

Ball & Douglas, of Clarendon, for plaintiff in error.

John R. Saunders, Atty. Gen., and E. Warren Wall, of Richmond, for the Commonwealth.

PRENTIS, P. E. N. Nikis has been found guilty of conducting a retail merchandise business without having first obtained a license therefor, in accordance with the requirements of the Virginia statute, and fined $30 and the costs of the prosecution.

It is shown that he conducted a mercantile business in the station of the Washington-Virginia Railway Company at the south end of the Francis S. Key bridge, in Arlington county, Va. This station is located on land which was purchased by the United States government, with the consent of the state of Virginia, to be used for an approach to the bridge. The accused denies his liability for the license tax upon the ground that the commonwealth of Virginia has no jurisdiction of the premises. The contention is that the United States government has the right of exclusive legislation there, under the United States Constitution, art. 1, § 8, cl. 17, and that, so having exclusive legislative authority, the state has no jurisdiction, and its laws for the imposition of taxes are inoperative there.

The clause of the federal Constitution cited reads:

"Congress shall have power * * * to exercise exclusive legislation in all cases whatsoever, over such district (not exceeding ten miles square) as may, by cession of particular states, and the acceptance of Congress, become the seat of the government of the United States, 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, magazines, arsenals, dockyards, and other needful buildings."

The state of Virginia has given its consent to such purchase by an act approved March 6, 1886 (Acts 1885-86, c. 424), which reads thus:

"1. Be it enacted by the General Assembly of Virginia, that the consent of this state be and is hereby given to the purchase or acquisition, by gift or concession of the owners, by the government of the United States, or under the authority of the same, of land in the county of Alexandria, necessary for the abutment and approaches of the proposed bridge across the Potomac river, anywhere in the county of Alexandria, not exceeding ten acres, and to the building of such abutment and approaches upon the land that may be so acquired, and to the exercise of such jurisdiction by the United States over the same as may be necessary. But this consent is given subject to the following terms and conditions, to wit:

"First. That this state retains concurrent jurisdiction with the United States over such land, so that the courts, magistrates and officers of this state may take such cognizance, execute such process, and discharge such other legal functions within the same as may not be incompatible with the consent hereby given.'

"Second. That if the purpose of this grant should cease, or there should be, for five years consecutively, a failure on the part of the United States to use said land for said purpose, then the jurisdiction hereby ceded shall cease and determine, and the same shall revert to the commonwealth of Virginia.

"2. The land acquired, and the abutments and approaches built for the purposes aforesaid, shall be exempt from taxation by this state, or by the constituted authorities of the county of Alexandria; but this exemption shall continue only so long as the United States shall continue to be owners of the land and the erections thereon.

"3. This act shall be in force from its passage."

Two Virginia cases appear to be relied upon to support this contention. Foley v. Shriver, 81 Va. 568, is one. While there may be expressions there which appear to justify such reliance, the case presents quite a different question from that here presented. The object of that suit was to recover a debt from a nonresident defendant, and to garnishee funds belonging to him which were held by the "National Home for Disabled Volunteer Soldiers, " and the process was served on the secretary of that corporation. It appeared that the garnishee, the National Home for Disabled Volunteer Soldiers, was indebted to the defendant; that it was a corporation created by the Congress of the United States and was supported by appropriations made by Congress. It was held that the state court had no jurisdiction over the garnishee. There it appeared from the act of cession (Acts 1869-70, p. 479) that the board of managers of the National Asylum for Disabled Soldiers desired to locate a branch of such asylum within this state, and that the necessary expenditures could be made for buildings and for the improvements only on property under the control of the national government. The consent of the Legislature was given, and the act expressly provided that such jurisdiction was ceded to the United States over this land, as is within the contemplation of the seventeenth clause of the eighth section of the first article of the United States Constitution, and the state reserved concurrent jurisdiction with the United States for the execution of process, etc., as might not be incompatible with the consent thereby given. So that reference to that actof cession shows that it was intended expressly to confer upon the federal government the exclusive jurisdiction provided for by, that clause; that is, exclusive legislative power corresponding with that exercised over the District of Columbia, and authority like that which is exercised over land acquired by the United States for the erection of forts, magazines, arsenals, dockyards and other needful buildings, as expressed in the clause.

A similar question arose in Ohio. There the act of the state (Act April 13, 1867 [64 Ohio Laws, p. 149]), ceding to the United States its jurisdiction over lands for the purpose of a National Asylum for Disabled Volunteer Soldiers, contained a proviso to this effect:

"That nothing in this act shall be construed to prevent the officers, employees, and inmates of said asylum who are qualified voters of this state, from exercising the right of suffrage at all township, county, and state elections, in the township in which the said national asylum shall be located."

It was held that upon a purchase of the territory, with the consent of the state, the United States became vested 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 of Ohio so as to entitle them to vote, within the meaning of the state Constitution, which conferred the elective franchise upon its residents alone. Sinks v. Reese, 19 Ohio St. 306, 2 Am. Rep. 397.

The other Virginia case relied upon is Bank of Phoebus v. Byrum, 110 Va. 708, 67 S. E. 349, 27 L. R. A. (N. S.) 436, 135 Am. St. Rep. 953. In that case the plaintiff sought by attachment to subject money belonging to the defendant, Byrum, deposited in a local bank, upon the ground that the defendant was not a resident of the state of Virginia. Byrum was then an enlisted soldier in the...