United States v. Tully

• Decision Date: 23 September 1905
• Citation: 140 F. 899
• Parties: UNITED STATES v. TULLY.
• Court: U.S. District Court — District of Montana

140 F. 899

UNITED STATES v. TULLY.

United States Circuit Court, D. Montana.

September 23, 1905

Carl Rasch, U.S. Atty.

E. E Hershey and Word & Word, for defendant.

WHITSON District Judge.

On the 7th day of November, 1903, the defendant was informed against in the Fourth judicial district court of the state of Montana, county of Missoula, for the murder of Thomas Kennedy, alleged to have been committed in said county on the 18th day of October, 1903, and upon trial in said court, he was convicted of murder in the first degree. Judgement upon the verdict of the jury was entered, and defendant was accordingly sentenced to be hung. Upon appeal to the Supreme Court of the state the judgment of the lower court was reversed, upon the ground that the homicide was committed upon what it found to be the Ft. Missoula military reservation, which was held to be a place under the exclusive control of the United States; the jurisdiction, therefore, being in the federal courts, and not in those of the state. State v. Tully (Mont.) 78 P 760. The defendant, having been discharged, was apprehended by the federal authorities, held to answer, and afterwards on the 29th day of April, 1905, an indictment was returned against him in this court, which charges that the crime was committed on Ft. Missoula military reservation, alleged to be a place under the sole and exclusive jurisdiction of the United States. Defendant meets the indictment with a plea to the jurisdiction. In the state court he contended for the jurisdiction of this court, and here contends for that of the state court. A man being tried for his life, of course, is not squeamish as to consistency, and, as its power is directly challenged, it is for this court to decide, as did the Supreme Court of Montana, whether it has authority to try the offense charged in the indictment.

An answer has been filed to the plea of the defendant, to which a demurrer has been interposed, but the facts are fully set out, and, as admitted by the plea and answer, are sufficient to enable the court to pass upon the questions presented. The homicide was committed on the E. 1/2 section 36, township 13 N., of range 20 W. At the time, that portion of said section was being occupied by the government for military purposes; part of the buildings of Ft. Missoula were situated thereon, and both the deceased and the defendant were enlisted soldiers in service, and in charge of the commandant of the post, who was exercising control of this particular tract, as well as other lands, admitted to be a part of this reservation. If the act was committed upon a military reservation of the United States, the site for which had been purchased by the general government within the state, by consent of its Legislature, under article 1, Sec. 8, of the federal Constitution, then it is a place within the exclusive jurisdiction of the United States, the obvious meaning of the words 'exclusive legislation,' as used in the article being equivalent to 'exclusive jurisdiction.' United States v. Cornell, Fed. Cas. No. 14,867. Or, if the act was committed in a place where upon the admission of Montana into the Union, the right to exclusive legislation was reserved by the general government in its compact with the state, under section 5339, Rev. St. (U.S. Comp. St. 1901, p. 3627), it is punishable in this court. United States v. Bateman (C.C.) 34 F. 86; Fort Leavenworth R.R. Co. v. Lowe, 114 U.S. 531, 5 Sup.Ct. 995, 29 L.Ed. 264; Benson v. United States, 146 U.S. 329, 13 Sup.Ct. 60, 36 L.Ed. 991; United States v. Tichenor (C.C.) 12 F. 415. No purchase of land had been made within the state for military purposes for use at Ft. Missoula, at the time of the killing, and the jurisdiction must depend therefore upon whether these lands had been legally set aside as a part of said reservation, and, if so, whether exclusive jurisdiction was reserved over them at the time of the admission of the state, either by express words or necessary implication.

For a solution of this matter we must ascertain how a military reservation may be established. If none ever was established which included this place, this court has no jurisdiction; if one was established and devoted to military purposes, and the exclusive jurisdiction of the general government not reserved, the jurisdiction is in the state courts. Clearly Congress has full power to reserve from sale, or set aside, any portion of the public domain for military or other governmental purposes, and it may be appropriate legislation, authorize the President to exercise this power. In Wilcox v. Jackson ex dem. McConnel, 13 Pet. 512, 10 L.Ed. 264, it was held that the power conferred upon the President by the act of Congress of June 14, 1809, authorizing him to erect fortifications for the northern and western frontiers, gave him authority to make reservation of public lands for military posts; it was said:

'We thus see that the establishing trading houses with the Indian tribes and the erection of fortifications in the west, are purposes authorized by law; and that they were to be established and erected by the President. But the place in question is one at which a trading house has been established, and a fortification or military post erected. It would not be doubted, we suppose, by anyone, that if Congress had by law directed the trading house to be established and the military post erected at Ft. Dearborn, by name, that this would have been by authority of law. But instead of designating the place themselves, they left it to the discretion of the president, which is precisely the same thing in effect. Here then is an appropriation, not only for one but for two purposes, of the same place, by authority of law.'

The Supreme Court, at a later date, had occasion to consider this subject in Grisar v. McDowell, 6 Wall. 381, 18 L.Ed. 863, where it expressed itself as follows:

'From an early period in the history of the government it has been the practice of the President to order, from time to time, as the exigencies of the public service required, parcels of land belonging to the United States to be reserved from sale and set apart for public uses. ' 'The authority of the President in this respect is recognized in numerous acts of Congress.'

Turning, now, to the history of Ft. Missoula military reservation, we find it to be as follows: By executive order of February 19, 1877, all of section 31, township 13 N., range 19 W., containing 640 acres, was set apart as a military reservation, under that designation. Upon August 5, 1878, said reservation, by executive order, was increased by adding thereto 560 acres in section 30, township 13 N., range 19 W. On August 27, 1878, the post commander at Ft. Missoula reported by letter his discover that most of the buildings of the post were located on the east half of section 36. In response thereto, the following letter was written:

'Headquarters of the Army, Adjutant General's Office.

'Washington, Dec. 5, 1878.

'To the Commanding General, Department of Dakota, Through Headquarters Division of Missouri-- Sir: Referring to your endorsement of the 26th ultimo upon communication from the commanding officer at Ft. Missoula, Montana Territory, who invites attention to his letter of August 27, 1878, relative to the necessity of securing to military uses the East 1/2, at least, of section 36, township 13 N., range 20 west, Helena Land Dist., reserved for school purposes, I am instructed by the General of the Army to inform you that the Secretary of War will apply to Congress for the use of said school section in connection with the military reservation of Ft. Missoula, and that meantime the commanding officer of the post may prevent intrusion on the reservation as declared, as also upon the school section, the title to which still remains in the United States.

'I am, sir, very respectfully, your obedient servant,

'E. D. Townsend, Adjutant General.'

It will be observed that neither by act of Congress, nor by authority of the President, was said section ever set apart as a part of said reservation; that the President did not through the Secretary of War, or otherwise, in fact, reserve or attempt to reserve this land for military purposes. These being the only methods by which it could have been set aside, it must be held that section 36 was not, at the time of the admission of the state, a part of said military reservation, and it was not, therefore, a place within the exclusive jurisdiction of the United States.

The United States attorney has ably and zealously contended for the power of this court to try the defendant. His contention is that the President in matters of this kind may act through the head of a department, and when an order for a reservation of the character of that under discussion has been made, the presumption attends it that it was by his authority; and this is well settled. Wolsey v. Chapman, 101 U.S. 755, 25 L.Ed. 915; Scott v. Carew, 196 U.S. 109, 25 Sup.Ct 193, 49 L.Ed. 403; United States v. Tichenor (C.C.) 12 F. 415. The argument is that the action of the General of the Army, in directing the officer in charge to keep trespassers off, is of itself, in effect an order setting aside this section. If we may judge of the letter by the language used, we are compelled to arrive at a different conclusion. Passing over the contention that the General of the Army had power without authority from the Secretary of War to reserve any part of this section as untenable, as decided in United States v. Tichenor (C.C.) 12 F. 415, it is manifest that the secretary, in so far as his intention is disclosed, considered he had no power to reserve this land for military purposes, on account of the same being a school section. The fact...