Rothfels v. Southworth
| Citation | 356 P.2d 612,11 Utah 2d 169 |
| Decision Date | 10 October 1960 |
| Docket Number | No. 9332,9332 |
| Parties | d 169 John ROTHFELS, suing for himself and others similarly situated, Plaintiff, v. Loraine B. SOUTHWORTH, Individually and as Registration Agent for Tooele County, and the Board of Commissioners of Tooele County, Defendants. |
| Court | Supreme Court of Utah |
Hansen & Miller, Salt Lake City, for plaintiff.
Walter L. Budge, Atty. Gen., for defendants.
John Rothfels, a civilian employee living on a military reservation, petitioned to compel the defendant registration agent to register him for the purpose of voting in the 1960 election. We issued an alternative writ requiring her to do so and it is sought to be made permanent.
The plaintiff, an immigrant from Germany, took employment as a civilian employee of the United States Army in January, 1953, and has since resided upon a military reservation at Dugway, Tooele County, Utah. He obtained his citizenship in February, 1956. On August 2, 1960, he tried to register to vote, but defendant refused to register him, giving as her reason that, '* * * he has stated to me that he resides on a military reservation and did not establish a residence in any other precinct in the State of Utah prior to this time.' Except for that fact he had all other qualifications to vote. 1
The question is presented: Can a civilian living on a military reservation be considered a resident of this state for the purpose of voting?
The right to vote is an important attribute of citizenship, but it derives from the state and may be exercised only upon meeting requirements set up by the legislature. 2 Accordingly, it is appropriate to examine the statutes applicable to the problem at hand and in view of the controversy in regard to their interpretation, it is proper to look to their history and background and also to governmental policy to divine their meanings. 3
The first section to which we direct attention is what was 20-2-14(11) U.C.A.1953 of our statutes which was included in our election laws at statehood:
'Any person living upon any Indian or military reservation shall not be deemed a resident of Utah within the meaning of this chapter, unless such person had acquired a residence in some county in Utah prior to taking up his residence upon such Indian or military reservation.'
In 1957 our legislature, by chapter 38, S.L.U.1957 repealed the above section. We think this clearly indicated an intention to remove the disability from voting based solely on the fact of residence on Indian or military reservations. The repeal of that section arose out of these facts: In 1956 in the case of Allen v. Merrell, 4 a case involving an Indian's right to vote, we upheld the constitutionality of the above statute. The United States Supreme Court granted Certiorari 352 U.S. 889, 77 S.Ct. 134, 1 L.Ed.2d 134 and while that review was pending the section was repealed. The parties are in accord that this had the effect of permitting Indians to vote and the appeal was dismissed by stipulation of counsel for the plaintiff, Allen, and the Attorney General. But the Attorney General here argues that it does not similarly apply to persons residing on military reservations. He bases his argument on Sec. 20-2-14(2) which the legislature did not repeal, but amended only by adding the emphasized word, 'solely.' It now reads:
'A person must not be held to have gained or lost a residence solely by reason of his presence or absence while employed in the service of the United States or of this state * * * while residing upon any Indian or military reservation.'
The Attorney General places emphasis on the fact that the legislature retained the above section and so reads it as to preclude the plaintiff from establishing a residence for voting purposes because he lives on a military reservation.
On the other hand, the plaintiff argues that this amendment, considered in connection with the repeal of Sec. 20-2-14(11), hereinabove quoted, clearly reflects the legislative intent to remove any disqualification to vote based solely on the fact that one resides on a military reservation; and that his right to vote should be determined the same as for anyone else, without such fact affecting his qualification one way or the other.
The defendant cites and relies on numerous cases from other jurisdictions which hold that under their various laws, where a person resides upon a military reservation over which the United States Government has exclusive control, no right to vote exists. 5 Notwithstanding the authorities cited, we see no reason why it would not be within the prerogative of the legislature to grant the right to vote to persons residing on military reservations even where the federal government had exclusive jurisdiction, if the legislature so desired, because it is entirely within its province to prescribe the conditions upon which the voting franchise may exist within our state. 6 We are not impressed with the fiction that such a reservation is in effect an island and not within the state. That idea may have some validity for some purposes, but the purpose of preventing citizens from voting is not one of them. We do not regard any of the authorities cited for the proposition that citizens living on military reservations could not vote as so holding under statutes such as ours, and certainly not where there had been a specific prohibition which was thereafter expressly repealed.
Even though the federal government may own and for certain purposes exercise a relatively high degree of control over a military reservation within the state, that control is for the purposes of its military operations and the only legitimate command or restraint it may exercise over civilian employees is that which is consistent with and necessary for such military purposes. The fact that it has and exercises such authority for that purpose does not remove the area from the jurisdiction of the state. Both the federal and the state governments have their prerogatives and duties with respect thereto. To shunt aside the sovereignty of the state in favor of exclusive jurisdiction in the federal government upon a pretext unnecessary to its function would run contrary to the fundamental theory underlying the origin of our government by which the sovereign states created the federal government itself, and exercised caution that it should be a government whose powers were limited to those expressly granted. 7
We can see nothing in connection with military purposes that would give rise to army officials needing any such arbitrary power as to deprive citizens residing within the area of any of the fundamental rights of citizenship, and there is no suggestion here that they desire any such authority. In any event it is quite inconceivable that there would be any necessity for such authority to extend so far as to prevent citizens from having the privilege of voting. It seems particularly anomalous for an agency of the state government to be so contending in a situation such as this when there is no occasion for making such a claim on behalf of the federal government.
More fundamental to the issue here presented is the fact that we do not regard this case as necessarily involving the question whether the plaintiff could establish residence to vote if he resided on a reservation over which the federal government had exclusive jurisdiction. As the matter is presented to us it is contended that some parts of the Dugway Proving Grounds are under the exclusive jurisdiction of the United States, and that other parts are not. There is no affirmative showing that plaintiff's residence is in the former, and he maintains that it is not. Inasmuch as it is shown that he is a citizen, having all the other qualifications, that establishes prima facie his right to register to vote and he must be allowed to do so unless it is clearly established that there is some basis for denying him that privilege.
The plaintiff sets forth the following undisputed facts which indicate that the federal government has and maintains something considerably less than exclusive jurisdiction on this military reservation: The right is reserved to the state to serve process, both civil and criminal; the schools located in the area are under the control and administration of the Toolele County School District; state income tax is levied and collected upon all persons living there; other state taxes are also collected upon gasoline and tobacco, and all privately owned vehicles are required to be registered with the State of Utah and have Utah license plates.
The foregoing facts make the instant case analogous to the case of Arapajolu v. McMenamin 8 decided in 1952 by the California District Court of Appeal, which we regard as well reasoned and correct in result. It held that notwithstanding there may have been exclusive jurisdiction in the federal government on the military reservations, by such facts as the foregoing, the federal government, as a practical matter, had retroceded partial jurisdiction to the state, and that this allowed persons living on the military reservations to acquire a residence for voting purposes within the state. Upon application, the California Supreme Court refused to review that decision.
Another case of generally similar import and result which follows and approves the California case is that of Adams v. Londeree by the Supreme Court of Appeals of West Virginia. 9 These recent decisions seem to represent the modern and what we think is the better considered view of the matter. This is particularly so when viewed in the light of developments in recent years on military reservations, and even more so when the noted changes in our statutes are considered.
Closely related to the argument concerning exclusive jurisdiction is the position taken by the defendant that the control over these employees exercised by the federal government makes their residence of such a...
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...the state legislature to grant the right to vote, even though the federal government has 'exclusive' jurisdiction (Rothfels v. Southworth, 1960, 11 Utah 2d 169, 356 P.2d 612). Although the holding in the Rothfels case may be contrary to Arledge v. Mabry, supra, we feel that certain language......
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