State v. Mimms.

• Court: New Mexico Supreme Court
• Writing for the Court: ZINN, Justice.
• Citation: State v. Mimms, 43 N.M. 318, 92 P.2d 993, 1939 NMSC 37 (N.M. 1939)
• Decision Date: 02 August 1939
• Docket Number: No. 4460.,4460.
• Parties: STATEv.MIMMS.

43 N.M. 318

92 P.2d 993

STATE

v.MIMMS.

No. 4460.

Supreme Court of New Mexico.

Aug. 2, 1939.Rehearing Denied Aug. 22, 1939.

Appeal from District Court, Sierra County; Eugene D. Lujan, Judge.

J. G. (Glen) Mimms was convicted of possessing beer and wine for purposes of sale without a license, and he appeals.

Affirmed.

The state's sovereignty and taxing power will not be presumed to have been relinquished by statute, in absence of clear and unmistakable language making such surrender.

W. A. Gillenwater, of Hot Springs, and J. B. Newell, of Las Cruces, for appellant.

Filo M. Sedillo, Atty. Gen., George Lougee, Asst. Atty. Gen., and William A. Watson, of Santa Fe, for the State.

ZINN, Justice.

J. G. (Glen) Mimms was found guilty of possessing beer and wine for purposes of sale without first obtaining a license as required by L.1937, Ch. 130, Art. IV, Sec. 401. He was sentenced to thirty days in jail and ordered to pay a fine of $50, and that sentence be suspended. From the judgment and sentence this appeal is prosecuted.

The facts revolving around this case were stipulated between the State and the appellant, and it was agreed that the trial court in determining the issues may consider such stipulated facts as proven.

From the stipulated facts it appears that Mimms first engaged in business at the Elephant Butte Dam on April 1, 1930, under a four-year exclusive contract with the Federal Bureau of Reclamation authorizing him to sell beer and wine and for other purposes. Upon expiration of that contract Mimms had yearly contracts for the same business. The contract subjected Mimms to Compliance with all Federal Laws.

On June 4, 1938, Mimms had beer and wine exposed for sale in the building occupied by him upon the land owned by the U. S. Government. On that date Mimms did not have the requisite licenses required by the State authorities for the sale of liquor under the laws of New Mexico. He had the Federal Stamp required by the U. S. Government for sale of all classes of liquors.

The appellant conducted his place of business upon land acquired by the United States Government, either by purchase or condemnation, for reclamation purposes, pursuant to U. S. Const., Art. I, Sec. 8, Subsec. 17, U.S.C.A., to which acquisition the State of New Mexico had given its consent by 1929 Comp.St., Sec. 146-101. The title to the land was vested in the U. S. Government.

The stipulation further recites that during the construction of the Elephant Butte Dam and the facilities at Elephant Butte by the government, the department (presumably the Reclamation Department) maintained schools and a jail at the Dam upon the property then and now owned by it; that a U. S. Deputy Marshal was constantly upon the project. That at the present time, however, no schools are maintained by the Federal Government, and children living on the Reservation go to schools of the state and county without cost, but transportation is cared for individually. All residents on government property qualified to vote, vote in all county and state elections. No U.S. Marshal is now maintained at the Dam and no jail is now in use there.

From the stipulation it also appears that the dam and all facilities, including the building occupied by defendant, were built by the government and not by contract with third parties, and that during the World War the U. S. Government maintained guards for the dam and all property of the United States. This has not been done since the war. The highways within the exterior boundaries of the Reclamation Project are maintained by the Bureau of Reclamation exclusively. The Bureau of Reclamation operates and maintains a water and electric light supply to all buildings occupied by Mimms as well as all other houses and buildings on the project.

The Federal Government has established a wild life refuge over the entire property covered by the dam and lake extending to the exterior boundaries thereof.

The Bureau of Reclamation has just completed a new building to be used by Mimms for a restaurant, commissary, and lounge rooms. It has been equipped with fixtures for these various purposes by the Bureau of Reclamation at an estimated cost of $40,000. This building will be operated by Mimms under his contract just the same as the old building.

The Bureau of Reclamation exercises exclusive control of all boating facilities upon Elephant Butte Lake. Even the State Game Commission of New Mexico is required to pay the annual fee of $1.50 to keep its boat upon the lake, although all persons exercising the privilege of fishing in the Reservation are required by state law to have a license, and some persons apprehended in violation of this law have been prosecuted in the state courts.

Before pleading to the charge laid in the information, the appellant interposed his plea to the jurisdiction of the state court to try the cause. The plea to the jurisdiction was predicated upon the theory that inasmuch as appellant was engaged in business in a public building on land belonging to the United States, and inasmuch as the State of New Mexico had, by 1929 Comp. St., Sec. 146-102, ceded to the United States exclusive jurisdiction for all purposes over such lands, that therefore the state courts had no jurisdiction to try the accused.

Appellant also argues that in the absence of any showing that the United States has by some legislative enactment conferred concurrent jurisdiction upon the state, the presumption is that the “exclusive jurisdiction” conferred upon the Federal Government by Sec. 146-102 is controlling.

The plea to the jurisdiction was overruled, the appellant plead to the information and judgment and sentence followed as first related. There is only one question before us, a clear question of law, namely, whether the state court had jurisdiction.

The clause of the Federal Constitution cited, 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 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, 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 consent given the Federal Government by our state to acquire the land reads as follows: “Consent to acquisition of land by. The consent of the state of New Mexico is hereby given, in accordance with the seventeenth clause, eighth section, of the first article of the constitution of the United States to the acquisition by the United States, by purchase, condemnation, or otherwise, of any land in this state required for sites for custom houses, court houses, post offices, arsenals, or other public buildings whatever, or for any other purposes of the government.” Sec. 146-101, N.M. Stat.Ann.1929 Comp.

The statute which appellant claims grants exclusive jurisdiction to the Federal Government over lands so acquired reads as follows: “Jurisdiction over land acquired. Exclusive jurisdiction in and over any land so acquired by the United States shall be, and the same is hereby, ceded to the United States for all purposes except the service upon such sites of all civil and criminal process of the courts of this state; but the jurisdiction so ceded shall continue no longer than the United States shall own such lands.” Sec. 146-102, N.M.Stat.Ann. 1929 Comp.

Similar questions have arisen in many jurisdictions. Some of the cases examined will be referred to hereafter. The majority of the cases examined deal with the power of the State to tax property located or situated on government reservations within the exterior boundaries of the state, and which property does not belong either to the U. S. or to tribal Indians, or which property is otherwise exempt from taxation.

In 46 A.L.R. at page 224, the annotator in reviewing the case of Nikis v. Virginia, 144 Va. 618, 131 S.E. 236, 46 A.L.R. 219, says: “While it is settled beyond question that a state has no power to tax the means and instrumentalities of the Federal government (see 26 R.C.L. 95, § 71), a state may, nevertheless, impose a personal property tax on property situated on government reservations within its limits, not belonging to the United States or to tribal Indians or otherwise exempt from taxation. 26 R.C.L. 100, § 75. The question presented by this annotation is whether a state may impose a license tax on the business of an individual being conducted on land owned by the Federal government. The reported case (Nikis v. Com. [144 Va. 618, 131 S.E. 236, 46 A.L.R.] 219) appears to be the only decision dealing with this power. In that case the court holds to be subject to a state license tax, a business carried on in a railroad station situated on land ceded to the Federal government for an approach to an interstate bridge. This decision is placed on the somewhat technical ground that a bridge approach is not a ‘building’ within article 1, § 8 of the Constitution (10 Fed.Stat.Ann. 838, U.S.C.A.), giving the Federal government exclusive jurisdiction over lands ceded for ‘forts, magazines, arsenals, dockyards, and other needful buildings.’ Being outside this provision, the court points out that the only other available source of exemption, the act exempting property of the United States from taxation, is not applicable to property of an individual on land belonging to the United States. Related and analogous holdings and an unreported decision of the Federal district court are set out in the reported case.”

The Virginia case reviews many of the...