State v. Johnson

• Decision Date: 28 August 1964
• Docket Number: No. 10126,10126
• Citation: 81 S.D. 20,130 N.W.2d 106
• Parties: STATE of South Dakota, Plaintiff and Appellant, v. Hubert Elwood JOHNSON, Defendant and Respondent.
• Court: South Dakota Supreme Court

Page 106

130 N.W.2d 106

81 S.D. 20

STATE of South Dakota, Plaintiff and Appellant, v. Hubert Elwood JOHNSON, Defendant and Respondent.

No. 10126.

Supreme Court of South Dakota.

Aug. 28, 1964.

Frank L. Farrar, Atty. Gen., Alan Williamson, Asst. Atty. Gen., Pierre, Robert C. Bakewell, Jr., State's Atty., Custer, for plaintiff and appellant.

Norman K. Blatchford, Hot Springs, for defendant and respondent.

ROBERTS, Judge.

Defendant was charged by an information with the crime of operating a motor vehicle while under the influence of alcoholic liquor alleged to have been committed on June 26, 1963, on U. S. Highway 385 in Wind Cave National Park. Defendant maintains that the state courts have no jurisdiction since the Park was at the time of the commission of the alleged offense within the federal criminal jurisdiction. From a judgment setting aside the information and dismissing the action, the state appeals.

A tract of public land lying within Custer County, South Dakota, was withdrawn from settlement and set apart as Wind Cave National Park by an Act of Congress approved January 9, 1903, 16 U.S.C.A. Sec. 141. Additional lands within the same county were included and made a part of the Park by an Act of Congress approved August 9, 1946, 16 U.S.C.A. Sec. 141a. These acts did not purport to consent to the acquisition by the United States of exclusive jurisdiction over the Park.

General statutory provisions, Chapter 95, Laws 1891 and Chapter 129, Laws 1895, consenting to the purchase or condemnation of land within this State by the United States and granting to it the right to exercise jurisdiction thereover, were in effect prior to the establishment of the Park. These provisions were subsequently codified and apply to acquisitions by purchase or condemnation. Chap. 1, Rev.Pol.Code of 1903; Sections 5049-5051, Rev.Code 1919; Section 55.0102, South Dakota Code of 1939. Another statute, Chap. 373, Laws 1917, ceded criminal jurisdiction to the United States within Wind Cave National Park on condition that the United States by Act of Congress accept jurisdiction. This statute became Section 5058, Rev.Code of 1919, without material change. The language of that section relating to acceptance by Act of Congress was deleted in the 1939 revision. SDC 55.0107 provides: 'Jurisdiction of the lands and their appurtenances which have been or may be acquired by the United States through donations * * * or which may have been acquired by exchange, purchase, or condemnation by the United States for use of * * * Wind Cave National Park * * * is hereby ceded to the United States and all such prior grants or donations of this state are hereby confirmed * * *.'

Since 1940, the Congress has provided a definite method of accepting jurisdiction on behalf of the United States. An Act of Congress approved October 9, 1940, 40 U.S.C.A. Sec. 255, provides in part as follows:

'Notwithstanding any other provision of law, the obtaining of exclusive jurisdiction in the United States over lands or interests therein which have been or shall hereafter be acquired by it shall not be required; but the head or other authorized officer of any department or independent establishment or agency of the Government may, in such cases and at such times as he may deem desirable, accept or secure from the State in which any lands or interests therein 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 or interests as he may deem desirable 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.'

The Supreme Court of the United States has said that a transfer of jurisdiction rests upon a grant by the state and an acceptance by the United States. There is 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 Commission of Washington, 302 U.S. 186, 58 S.Ct. 233, 82 L.Ed. 187. The fact that there is an outstanding grant to the United States of the right to exercise exclusive jurisdiction does not divest a state of jurisdiction. It retains jurisdiction until there is an acceptance. James v. Dravo Contracting Co., 302 U.S. 134, 58 S.Ct. 208, 82 L.Ed. 155; Atkinson v. State Tax Commission of Oregon, 303 U.S. 20, 58 S.Ct. 419, 82 L.Ed. 621; Collins v. Yosemite Park & Curry Co., 304 U.S. 518, 58 S.Ct. 1009, 82 L.Ed. 1502; Bowen v. Johnston, 306 U.S. 19, 59 S.Ct. 442, 83 L.Ed. 455; Adams v. United States, 319 U.S. 312, 63 S.Ct. 1122, 87 L.Ed. 1421; 91 C.J.S. United States Sec. 7; 54 Am.Jur., United States, Secs. 87, 88.

In Adams v. United States, supra, the three defendants were convicted of an offense committed within the confines of Camp Claiborne, Louisiana, a military camp. The question presented was whether the camp was, at the time of the commision of the crime, within the federal criminal jurisdiction. The court construing the provisions of 40 U.S.C.A. Sec. 255, above quoted, said:

'The legislation followed our decisions in James v. Dravo Contracting Co., 302 U.S. 134, 58 S.Ct. 208, 82 L.Ed 155, 114 A.L.R. 318; [Silas] Mason Co. v. Tax Commission, 302 U.S. 186, 58 S.Ct. 233, 82 L.Ed. 187; and Collins v. Yosemite Park [& C.] Co., 304 U.S. 518, 58 S.Ct. 1009, 82 L.Ed. 1502. These cases arose from controversies concerning the relation of Federal and state powers over government property and had pointed the way to practical adjustments. The bill resulted from a cooperative study by government officials, and was aimed at giving broad discretion to the various agencies in order that they might obtain only the necessary jurisdiction. The Act created a definite method of acceptance of jurisdiction so that all persons could know whether the government had obtained 'no jurisdiction at all, or partial jurisdiction, or exclusive jurisdiction.'

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