Steele v. Halligan

• Decision Date: 07 February 1916
• Docket Number: 1938.
• Citation: 229 F. 1011
• Court: U.S. District Court — Western District of Washington
• Parties: STEELE v. HALLIGAN.

229 F. 1011

STEELE v. HALLIGAN.

No. 1938.

United States District Court, W.D. Washington, Southern Division.

February 7, 1916

[Copyrighted Material Omitted]

Griffin & Griffin, of Seattle, Wash., for plaintiff.

George P. Fishburne, Asst. U.S. Atty., of Tacoma, Wash., for defendant.

CUSHMAN District Judge.

Plaintiff moves that the cause be remanded to the state court. By the complaint he seeks to recover damages in excess of $3,000 for defendant's alleged negligence, and states as a cause of action:

'That at all times hereinafter named the plaintiff was a prisoner confined in the United States penitentiary at McNeil's Island, and that the defendant, O. P. Halligan, at all times hereinafter named was the warden of the United States penitentiary at McNeil's Island, in charge of the inmates and of the maintenance and control of all of the inmates confined therein, including the plaintiff, John H Steele.

'That * * * the plaintiff was negligently and carelessly placed to work, by and through the direction of the defendant, beneath a steep bank of from 25 to 30 feet in height of sliding loose strata of sand, gravel, and earth, and * * * without any fault or negligence of the plaintiff, the said bank under which the plaintiff was working caved, gave way, and fell upon the plaintiff, greatly injuring and damaging the plaintiff. * * *

'That all of the injuries and damages sustained by the plaintiff were wholly caused by and due to the negligent careless acts and omissions of the defendant in negligently and carelessly placing the plaintiff to work under guard and underneath a bank of loose sliding clay, gravel, and earth.'

The petition for removal to this court alleges:

'That the alleged accident and injury to plaintiff, as described in his complaint, occurred at the United States penitentiary, within the limits of the same, and on land and property used exclusively for a United States penitentiary, and exclusively within the jurisdiction of the United States and of the United States courts.'

It clearly appears from the complaint that the defendant, the warden, is charged with negligently discharging the duty imposed upon him by law and the judgment of the court committing the plaintiff to his care and custody. It would appear to need no citation of authority to show that such suit is one arising under the laws of the United States. Bachrack v. Norton, 132 U.S. 337, 10 Sup.Ct. 106, 33 L.Ed. 377; Feibelman v. Packard, 109 U.S. 421, 3 Sup.Ct. 289, 27 L.Ed. 984; Sonnentheil v. Moerlein Brewing Co., 172 U.S. 401, 19 Sup.Ct. 233, 43 L.Ed. 492; Bryant Bros. Co. v. Robinson, 149 F.

321, 79 C.C.A. 259; In re Dunn, 212 U.S. 374, 29 Sup.Ct. 299, 53 L.Ed. 558; Pacific R.R. Removal Cases, 115 U.S. 1, 5 Sup.Ct. 1113, 29 L.Ed. 319; Caha v. U.S., 152 U.S. 211, 14 Sup.Ct. 513, 38 L.Ed. 415; Cosmos Exploration Co. v. Gray Eagle Iron Co., 190 U.S. 301, 23 Sup.Ct. 692, 47 L.Ed. 1064. The acts of Congress affecting federal prisons are set out in volume 6, Federal Statutes Annotated, pages 23 to 47. Sections 2 and 4 of the act of March 3, 1891 (26 Stat.at Large, 839, c. 529), provide:

'That the sum of one hundred thousand dollars is further appropriated, to be expended under the direction of the Attorney General, in the fitting of workshops for the employment of the prisoners: Provided, however, that the convicts be employed exclusively in the manufacture of such supplies for the government as can be manufactured without the use of machinery, and the prisoners shall not be worked outside the prison inclosure. * * *

'That the control and management of said prisons be vested in the Attorney General, who shall have power to appoint a superintendent, assistant superintendent, warden, keeper, and all other officers necessary for the safe-keeping, care, protection, and discipline of such United States prisoners. He shall also have authority to promulgate such rules for the government of the officials of said prisons and prisoners as he may deem proper and necessary. ' Vol. 6, Fed. St. Ann. p. 25, Comp. St. 1913, Secs. 10553, 10555.

Counsel for plaintiff contends that, while the cause may be affected by laws of the United States, it is controlled, and therefore arises, under the municipal law-- the general law of negligence, and does not arise under the laws of the United States, as required by chapter 2, section 24, of the Judicial Code (Act March 3, 1911, c. 231, 36 Stat. 1091 (Comp. St. 1913, Sec. 991)). Carson v. Dunham, 121 U.S. 421, 7 Sup.Ct. 1030, 30 L.Ed. 992; Starin v. N.Y., 115 U.S. 248, 6 Sup.Ct. 28, 29 L.Ed. 388; Wichita Nat. Bank v. Smith, 72 F. 568, 19 C.C.A. 42; McFadden v. Robinson (C.C.) 22 F. 10; Foster Fed. Prac. (4th Ed.) vol. 1, Sec. 17, pp. 116 and 147. It is necessary to consider whether this assumption is correct and leads to a different conclusion than that already indicated.

The Constitution of the United States (article 1, section 8, subsection 17) provides:

'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, dockyards, and other needful buildings.'

The Constitution of the state of Washington, adopted October 1, 1889, provides:

'The consent of the state of Washington is hereby given to the exercise by the Congress of the United States of exclusive legislation in all cases whatsoever over such tract or parcels of land as are now held or reserved by the government of the United States for the purpose of erecting or maintaining thereon forts, magazines, arsenals, dockyards, lighthouses, and other needful buildings, in accordance with the provisions of the seventeenth paragraph of the eighth section of the first article of the Constitution of the United States: Provided, that a sufficient description by metes and bounds, and an accurate plat or map of each such tract or parcel of land be filed in the proper office of record in the county in which the same is situated, together with copies of the orders, deeds, patents, or other evidences in writing of the title of the United States: And provided, that all civil process issued from the courts of this state, and such criminal process as may issue under the authority of this state, against any person charged with crime in cases arising outside of such reservations, may be served and executed thereon in the same mode and manner and by the same officers as if the consent herein given had not been made. ' Article 25.

Section 6853 of Remington & Ballinger's Code provides:

'The consent of the state of Washington be and the same is hereby given to the acquisition by purchase or by condemnation, under the laws of this state relating to the appropriation of private property to public uses, by the United States of America, or under the authority of the same, of any tract, piece, or parcel of land, from any individual or individuals, bodies politic or corporate, within the boundaries or limits of this state, for the sites of locks, dams, piers, breakwaters, keepers' dwellings, and other necessary structures and purposes required in the improvement of the rivers and harbors of this state, or bordering thereon, or for the sites of forts, magazines, arsenals, docks, navy yards, naval stations, or other needful buildings authorized by any act of Congress, and all deeds, conveyances of title papers for the same shall be recorded as in other cases, upon the land records of the county in which the land so acquired may lie, and in like manner may be recorded a sufficient description by metes and bounds, courses and distances, of any tract or tracts, legal divisions or subdivisions of any public land belonging to the United States which may be set apart by the general government for any or either of the purposes before mentioned by an order, patent, or other official document or papers describing such land; the consent herein and hereby given being in accordance with the seventeenth clause of the eighth section of the first article of the Constitution of the United States, and with the acts of Congress in such cases made and provided; and the jurisdiction of this state is hereby ceded to the United States of America over all such land or lands as may have been or may be hereafter acquired by purchase or by condemnation, or set apart by the general government for any or either of the purposes before mentioned: Provided, that this state shall retain a concurrent jurisdiction with the United States in and over all tracts so acquired or set apart as aforesaid, so far as that all civil and criminal process that may issue under the authority of this state against any person or persons charged with crimes committed, or for any cause of action or suit accruing without the bounds of any such tract, may be executed therein, in the same manner and with like effect as though this assent and cession had not been granted.'

Whether the state has any power to impose, as a condition subsequent the obligation upon the United States of making a record of the land acquired in an office of the state, it is not necessary to decide, as it will be presumed that such record was made, the cession being for the benefit of the state and the nation. Ft. Leavenworth R.R. Co. v. Lowe, 114 U.S. 525 at 528, 5 Sup.Ct. 995, 29 L.Ed. 264. The original prison site was purchased and the prison erected while the state of Washington was still a territory, in pursuance of Act Jan. 22, 1867, c. 9, 14 Stat.at...