United States v. Heard, 22385.

• Decision Date: 05 May 1967
• Docket Number: No. 22385.,22385.
• Citation: 270 F. Supp. 198
• Parties: UNITED STATES of America, Plaintiff, v. Harold HEARD, Jr., Defendant.
• Court: U.S. District Court — Western District of Missouri

270 F. Supp. 198

UNITED STATES of America, Plaintiff, v. Harold HEARD, Jr., Defendant.

No. 22385.

United States District Court W. D. Missouri, W. D.

May 5, 1967.

Russell Millin, Dist. Atty., by William A. Kitchen, Asst. Dist. Atty., Kansas City, Mo., for plaintiff.

J. Whitfield Moody, Public Defender, Kansas City, Mo., for defendant.

MEMORANDUM AND ORDER

ELMO B. HUNTER, District Judge.

On March 31, 1967, by duly filed information Harold Heard, Jr., was charged with "on or about February 11, 1967, at Excelsior Springs, Missouri, on the premises of the Job Corps Center, the same being lands acquired for the use of the United States and under the jurisdiction thereof * * * in a place where people were assembled for social purposes" carrying concealed upon or about his person a dangerous or deadly weapon, to wit, a loaded .22 caliber revolver, in violation of Section 564.610, Revised Statutes of Missouri, 1949, all in violation of Sections 7 and 13, Title 18, United States Code. Defendant Heard has executed the usual waiver of prosecution by indictment and consent that the proceeding may be by information, subject to the stipulation that by executing the waiver he does not forego any right to challenge the information for its failure to state a violation of law cognizable by a federal court. Specifically, defendant has moved to dismiss the information for the reasons:

"1. That the said sections 7 and 13 when used in connection with the provisions of a State Statute are unconstitutional in that it permits a person charged under those sections with the violation of a state crime to be placed twice in jeopardy for the same offense in violation of the Fifth Amendment to the United States Constitution.

"2. That Section 564.610, Revised Statutes of Missouri, 1949, as amended, is unconstitutional in that it is vague and indefinite and provides penalties which would constitute either a felony or a misdemeanor for the same act without describing which acts shall constitute a conviction for a misdemeanor or for a felony.

"3. That the acts charged in the information did not occur on land required for the use of the United States and that therefore the United States Government does not have jurisdiction to prosecute this defendant for the acts which are alleged to have occurred."

An evidentiary hearing was held at defendant's counsel's request relative to the Motion to Dismiss the information. At that hearing through evidence adduced by the Government, which defendant does not challenge, the following facts emerge, and are hereby found by the Court to exist:

The land comprising the Veterans Administration Hospital reservation, Excelsior Springs, Missouri, consisting of approximately 24.6 acres was acquired in parcels by the United States in the years 1922, 1929, 1930 and 1937 from E. L. Morse and his wife, Harriet C. Morse; Joseph W. Sexton and Nettie M. Sexton, his wife; Martha A. Maxwell; Willie Jenkins and Maggie M. Jenkins, his wife; and the City of Excelsior Springs, respectively.

Prior to the acquisition of the title to the major portion of the reservation in 1922, it had been under lease by the Public Health Service of the Treasury Department from Mr. E. L. Morse, the owner. By Executive Order No. 3669 dated April 29, 1922, certain specifically described hospitals, among which was the hospital at Excelsior Springs, Missouri, then under the supervision of the United States Public Health Service and operated for hospital or sanatoria or other uses, for sick and disabled former soldiers, sailors and marines, were transferred to the United States Veterans Bureau.

On July 12, 1922, President Warren G. Harding approved a request of the Acting Director of the Veterans Bureau for authority to purchase the property then under lease from Mr. E. L. Morse for use as a hospital under the authority of the Act of August 9, 1921. By deed dated July 26, 1922, E. L. Morse and Harriet C. Morse, his wife, conveyed the property to the United States for a consideration of $173,000.00.

Subsequent to the acquisition of the original reservation in 1922, the Director of the Veterans Bureau decided that four parcels of land adjoining the hospital reservation were desired in connection with the proposed enlargement of the hospital. Three of these parcels, owned respectively by E. L. Morse, Joseph W. Sexton and Willie Jenkins, were acquired by purchase in 1929 for a total consideration of $7,500. The fourth parcel was acquired by condemnation in 1930 from Martha A. Maxwell, et al., in Civil Action No. 7609 instituted in the United States District Court for the Western District of Missouri, Western Division, for a consideration of $10,000.00.

In 1937, 2.6 acres of additional land were acquired by donation from the City of Excelsior Springs, Missouri.

The lands which were acquired for use as a Veterans Hospital have remained under the ownership of the United States Government and at the present time are being used as a Job Corps Center.

Partial jurisdiction over the lands comprising the Veterans Administration Hospital reservation, Excelsior Springs, Missouri, was ceded to the United States by the Missouri General Act of Cession, Chapter 56-1, Code of 1919.

Under Section 11072, Revised Statutes of Missouri (1929), (12.010 V.A.M.S.) the state consented to the acquisition of any land "which has been or which may hereafter be acquired" by the Federal Government for hospitals and other listed purposes of the Government. Section 11073 (12.020 V.A.M.S.) ceded jurisdiction to the United States over land purchased or acquired as provided in Section 11072 "so long as the United States shall own said land," and the state retained only the right to serve civil and criminal processes within such land.

Turning to defendant's last stated reason for dismissal, 18 U.S.C. § 7, par. (3) provides that the territorial jurisdiction of the United States includes, "Any lands * * * acquired for the use of the United States, and under the exclusive or concurrent jurisdiction thereof, or any place purchased or otherwise acquired by the United States by consent of the legislature of the State in which the same shall be, for the erection of a fort, magazine, arsenal, dockyard, or other needful building." 40 U.S.C. § 255, creating a presumption against acceptance of jurisdiction and requiring actual acceptance is inapplicable to land acquired prior to the enactment thereof. Markham v. United States, 4 Cir., 215 F.2d 56, cert. den. 348 U.S. 939, 75 S.Ct. 360, 99 L.Ed. 735 (1954). Since the lands were acquired by the United States prior to February 1, 1940, acceptance of the jurisdiction by the United States is presumed. See, Fort Leavenworth R. R. Co. v. Lowe, 114 U.S. 525, 5 S.Ct. 995, 29 L.Ed. 264; United States v. Watkins, D.C., 22 F.2d 437; United States v. Cornell, 25 Fed.Cas. p. 650, 656, No. 14,868.

Defendant's counsel contends that although the United States still owns the land by virtue of the fact it no longer maintains a hospital or sanitorium thereon it no longer uses the land for the purpose for which it was acquired, and, hence, no longer has jurisdiction over crimes committed thereon. As support for this contention defendant's counsel notes that in 1957, while the United States was maintaining a hospital on the land the State of Missouri amended Section 12.020 by enacting 12.040 V.A.M.S. which provides "* * * but the jurisdiction ceded to the United States continues no longer than the United States owns the lands and uses the same for the purposes for which they were acquired." (Emphasis added)

Counsel for the United States contends that once the United States gains jurisdiction the State cannot recapture jurisdiction by amending the statute.

While true a state cannot by an amending statute recapture jurisdiction of land once granted to the United States¹ that principle may not be applicable to the present facts. First it must be determined whether Missouri, at the time the various parcels were obtained by the United States or were under United States ownership ceded a conditional jurisdiction for the purpose solely of establishing or maintaining hospitals and sanitoriums. If so, then upon termination of the condition jurisdiction would revert to the State of Missouri for the reason that the condition terminated, and not by reason of a later enacted amending statute.

It is fundamental Missouri law that statutes on the same subject should be read and considered together to ascertain the intent of the legislative body. Where reasonably possible such statutes are to be harmonized rather than be held to be in conflict in their terms. State ex rel. Smithco Transp. Co. v. Public Service Commission, Mo.Sup., 316 S.W. 2d 6. Turning again to the pertinent Missouri statutes Section 12.010, titled "Consent Given United States to acquire land by purchase for certain purposes" provides, "The consent of the state of Missouri is hereby given * * * to the acquisition by the United States * * * for the purpose of establishing and maintaining * * * hospitals, sanatoriums * * * (others named not relevant)." This section concerns only consent to acquire land for certain purposes. The tracts in question were acquired for an authorized purpose. There is no provision in the statute for title to revert if the land is once acquired for an authorized purpose. If the Missouri legislature had intended reverter of title in Section 12.010 where title was properly once attained it is only logical to believe it would have so provided. It is note-worthy that neither the State of Missouri nor the Federal Government has contended, insofar as this Court could ascertain, that title to this land was other than in the United States....