United States v. Unzueta

• Citation: 35 F.2d 750
• Parties: UNITED STATES v. UNZUETA.
• Decision Date: 05 November 1929
• Court: U.S. District Court — Panama Canal Zone

35 F.2d 750 (1929)

UNITED STATES v. UNZUETA.

District Court, D. Nebraska, Chadron Division.

November 5, 1929.

George A. Keyser, Asst. U. S. Atty., of Omaha, Neb.

Allen G. Fisher, of Chadron, Neb., for defendant.

WOODROUGH, District Judge.

The defendant is indicted for a murder charged to have been committed on a freight car in a freight train being operated upon and over the railroad tracks of the Chicago & Northwestern Railway Company within and upon the Ft. Robinson Military Reservation within the Chadron division of the district of Nebraska.

By plea to the jurisdiction the defendant, among other things, presents that the place of the alleged murder specified in the indictment was not "a place within the exclusive jurisdiction of the United States." The status of Ft. Robinson as a military reservation within the exclusive jurisdiction of the United States has been settled for this court, and is not now open to question. This court has tried a number of criminal cases, where the acts were committed upon the reservation, and has sustained the jurisdiction, because the reservation is and has long been within the exclusive jurisdiction of the United States. None of these cases are reported, but Judge Shiras reviews the history of the reservation, and establishes the conclusion for the federal court, in the published opinion in Re Ladd (C. C.) 74 F. 31, and the fact that it is a military reservation under the exclusive jurisdiction of the United States is confirmed for state authorities by the Supreme Court of Nebraska in Anderson v. C. & N. W. Ry. Co., 102 Neb. 578, 168 N. W. 196.

But, conceding the exclusive jurisdiction of the United States over the reservation, the question remains whether the trains being operated upon the railroad right of way and the strip of right of way land which bisects the reservation are also places within such exclusive federal jurisdiction. It was settled by the Supreme Court in Ft. Leavenworth R. Co. v. Lowe, 114 U. S. 525, 5 S. Ct. 995, 1004, 29 L. Ed. 264, and C., R. I. & P. Ry. Co. v. McGlinn, 114 U. S. 542, 5 S. Ct. 1005, 1006, 29 L. Ed. 270, as to the Ft. Leavenworth Reservation in Kansas, that the federal jurisdiction over the reservation rests upon a different foundation and has different scope from the federal jurisdiction over the seat of government in Washington and those places within the states which the federal government has purchased for the purposes and in the manner specified in article 1, § 8, of the Constitution.

The lands upon which the Ft. Robinson Military Reservation is situate were public lands, and belonged to the United States, when Nebraska was admitted to the Union, and by the act of admission the lands came under the jurisdiction of the state. When the federal authorities set them aside for its military purposes, the state made cession of its jurisdiction over the lands to the United States. The two legislative enactments are set out and considered by Judge Shiras in his opinion in the Ladd Case, supra. The act of cession and the acceptance thereof by the United States constituted a convention and agreement, and the federal jurisdiction rests upon that, and is limited accordingly. In those cases where the government purchases lands with the consent of the state, in accordance with, and for the purposes specified in, the constitutional provision, the federal jurisdiction is absolute; but, as the military reservation of Ft. Robinson was not so acquired, the language of the Supreme Court in the Lowe Case, supra, is applicable.

The court says: "The military reservation of Ft. Leavenworth was not * * * acquired by purchase with the consent of Kansas. And her cession of jurisdiction is not of exclusive legislative authority over the land, except so far as that may be necessary for its use as a military post." The court also says: "It is for the protection and interests of the states, their people and property, as well as for the protection and interests of the people generally of the United States, that forts, arsenals, and other buildings for public uses are constructed within the states. As instrumentalities for the execution of the powers of the general government, they are, as already said, exempt from such control of the states as would defeat or impair their use for those purposes; and if, to their more effective use, a cession of legislative authority and political jurisdiction by the state would be desirable, we do not perceive any objection to its grant by the Legislature of the state. Such cession is really as much for the benefit of the state as it is for the benefit of the United States. It is necessarily temporary, to be exercised only so long as the places continue to be used for the public purposes for which the property was acquired or reserved from sale. When they cease to be thus used, the jurisdiction reverts to the state."

Again in the McGlinn Case, supra, the Supreme Court further said on the same subject: "It is competent for the Legislature of a state to cede exclusive jurisdiction over places needed by the general government in the execution of its powers, the use of the places being, in fact, as much for the people of the state as for the people of the United States generally, and such jurisdiction necessarily ending when the places cease to be used for those purposes." And further in the same case: "The government of the state of Kansas extended over the reservation, and its legislation was operative therein, except so far as the use of the land as an instrumentality of the general government may have excepted it from such legislation."

In the case of Benson v. U. S., 146 U. S. 325, 13 S. Ct. 60, 62, 36 L. Ed. 991, the court held that a murder committed within the limits of the Ft. Leavenworth Military Reservation was cognizable in the federal court, although done upon a part thereof let out temporarily for farming. The court said: "It is contended by appellant's counsel that, * * * jurisdiction passed to the general government only over such portions of the reserve as are actually used for military purposes, and that the particular part of the reserve on which the crime charged was committed was used solely for farming purposes. But in matters of that kind the courts follow the action of the political department of the government. The entire tract had been legally reserved for military purposes. U. S. v. Stone 69 U. S. 2 Wall. 525, 537 1 S. Ct. 287, 27 L. Ed. 163. The character and purposes of its occupation having been officially and legally established by that branch of the government which has control over such matters, it is not open to the courts, on a question of jurisdiction, to inquire what may be the actual uses to which any portion of the reserve is temporarily put. There was therefore jurisdiction in the Circuit Court."

These cases are reviewed by the Supreme Court in the very recent case of Arlington Hotel v. Fant, 278 U. S. 439, 49 S. Ct. 227, 230, 73 L. Ed. 447, and...