State ex rel. Cashman v. Board of Commissioners of Grant County
| Decision Date | 13 October 1899 |
| Docket Number | 18,774 |
| Citation | 54 N.E. 809,153 Ind. 302 |
| Parties | State, ex rel. Cashman et al., v. Board of Commissioners of Grant County |
| Court | Indiana Supreme Court |
From the Grant Circuit Court.
Appeal dismissed.
John A Kersey, Chris. C. Gordon, A. G. Smith and C. A. Korbly, for appellant.
H. J Paulus, O. L. Cline, Steel & Radcliff, W. L. Taylor Attorney-General, Merrill Moores and C. C. Hadley, for appellee.
This is a proceeding for a writ of mandamus, under the provisions of § 1 of the act concerning elections, approved March 6 1889 (Acts 1889, p. 157), to compel the board of commissioners of Grant county to re-divide into voting precincts certain territory in Center township, and to exclude therefrom certain territory alleged to be without the jurisdiction of the State.
The petition sets forth that, by an act of the General Assembly approved February 11, 1889 (Acts 1889, p. 10), the State of Indiana ceded to the United States jurisdiction of a certain 304 acres of territory situate in Grant county, upon which was established, and is maintained by the United States, a branch of the National Home for Disabled Volunteer Soldiers, containing about 2,000 inmates; and that said commissioners, pretending to act under § 1 of the elections act of 1889, had, together with other territory, included in each of six election precincts of Center township a part of said 304 acres and a part of the inmates resident thereon; that said 304 acres were within the exclusive jurisdiction of the United States; that the inmates of said home were not residents of the State of Indiana nor voters therein. Prayer, that the respondent be compelled "to divide into voting precincts, containing as nearly as practicable 200 voters, and in no case containing more than 250 voters, all that part of said Center township which is within said six, so called, voting precincts, and to exclude from said voting precincts, so to be established, all of said 304 acre tract of land, which was so ceded by the State of Indiana to the United States as aforesaid, and which is occupied by said branch Home for Disabled Volunteer Soldiers."
The petition was filed in the Grant Circuit Court May 30, 1898, and on the same day an alternative writ of mandate was issued therefrom. On July 7, 1898, Congress passed and the President approved an act embracing the following provision: "The jurisdiction over the places purchased for the location of the branches of the National Home for Disabled Volunteer Soldiers, under and by authority of an act of Congress, approved July twenty-third, eighteen hundred and eighty-eight, in Grant county, State of Indiana, and upon which said branch home is located, and by authority of an act of Congress approved June fourth, eighteen hundred and ninety-seven, 'at the town of Danville, in the county of Vermilion, state of Illinois', and upon which said branch is now located, is hereby ceded to the respective states in which said branches are located and relinquished by the United States; and the United States shall claim or exercise no jurisdiction over said places after the passage of this act: Provided, That nothing herein contained shall be construed to impair the powers and rights heretofore conferred on the board of managers of the National Home for Disabled Volunteer Soldiers in and over said places." (Acts of Congress, 1897-98, p. 668.)
The State accepted from the National Government the retrocession of the territory in controversy by an act of the General Assembly approved February 7, 1899, which is as follows: "An act to accept jurisdiction of certain lands and territory ceded by the Congress of the United States of America to the State of Indiana, and declaring an emergency.
Appellee moves to dismiss the appeal upon the ground that, since the commencement of the action, a state of facts has arisen, from the retrocession of jurisdiction by Congress and the acceptance thereof by the State, that removes all real controversy, and leaves the question involved a mere abstract proposition that can not now be carried out or made effective by any judgment that may be rendered.
It was the duty of the commissioners, under the act of 1887, to divide Center township into election precincts as required thereby, and to include all the territory within the limits of the township that was subject to the jurisdiction of the State. How they should accomplish the division--that is, the particular boundaries of the several precincts, was a matter of discretion and judgment that can not be questioned so long as the provisions of the law are observed. It was their duty to count the male residents, over the age of twenty-one years, and apportion them to the precincts in conformity to the statute. They should enumerate men; but not determine the qualification of electors. And if it is a fact that the 304 acres, at the commencement of this suit, were without the jurisdiction of the State, but erroneously included within certain election precincts, and that, since the commencement of this action, they have been brought within that jurisdiction, without impairing the integrity of the precinct lines or unsettling the due and lawful number of male residents therein, over the age of twenty-one years, what remains now for the commissioners to do? If the precincts as now established are in conformity to law, that is the end of it. The court will not command the doing of a thing that is already done. And it is not pretended but the precinct lines, and apportionment of electors, are according to law if the territory in question is within the jurisdiction of the State, and the male residents therein are qualified voters.
The whole inquiry then comes to this: Does the State now have jurisdiction over the territory, and are the bona fide residents therein for six months legal voters in the precincts, from anything that has transpired since the commencement of this suit?
Appellants insist that the congressional act of July 7, 1898, known as the retrocession act, is void for being violative of article 1, section 8 of the Federal Constitution, which reads as follows: "The 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 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, dock-yards, and other needful buildings; and to make all laws which shall be necessary and proper for carrying into execution the foregoing powers and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof."
The contention is that while the Constitution confers upon Congress the power to acquire, within the states, exclusive jurisdiction over places for "needful buildings," it does not delegate to it the power to cede jurisdiction, when once acquired, to any other power or sovereignty, and that, when the United States once acquires jurisdiction over such a place, it becomes concurrent with the use to which it is put, and remains under the exclusive jurisdiction of the National Government until the use thereof is abandoned.
The proposition is too broadly stated. The rule, as affirmed by the highest judicial decision, is to the effect that when the National Government, in the exercise of the powers granted by the above constitutional provision, acquires land by purchase, for any of the enumerated purposes, with the consent of the state, expressed through its legislature, the grant carries with it exclusive jurisdiction over the place, and all state rights and sovereignty are excluded therefrom; and residents therein are alien to the state making the grant. Fort Leavenworth R. Co. v. Lowe, 114 U.S. 525, 5 S.Ct. 995, 29 L.Ed. 264; Mitchell v. Tibbetts, 34 Mass. 298; Commonwealth v. Clary, 8 Mass. 72; Sinks v. Reese, 19 Ohio St. 306.
But when the United States acquires land for any of such purposes, without the consent of the state, either by purchase, or by the...
To continue reading
Request your trial