I concur with Mr. Justice Angstman and dissent from the majority opinion.
The facts are very fully set out in the majority opinion; therefore I shall not attempt to cover the details of the situation, with this exception: There are several statements, particularly as to ownership, which are statements of conclusions reached by the writer of the majority opinion instead of statements of facts; with relation to these statements comment is made later.
The suit is brought by the county commissioners of Valley county against the assessor and treasurer of that county. Certain merchants in Fort Peck have intervened and are the real parties defendant. The United States is not a party and is not in any way participating in this suit. The chief point in controversy is the question of what statutes, that is the statutes of what date, apply to the alleged jurisdiction of the United States. The national Constitution (Article I, sec. 8, clause 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 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 needfulbuildings"; etc. The state Constitution in Article II provides: "Authority is hereby granted to and acknowledged in the United States to exercise exclusive legislation, as provided by the Constitution of the United States, over the military reservations of Fort Assinaboine, Fort Custer, Fort Keogh, Fort Maginnis, Fort Missoula, and Fort Shaw, as now established by law, *Page 526 so long as said places remain military reservations, to the sameextent and with the same effect as if said reservations had been purchased by the United States by consent of the legislative assembly of the state of Montana; and the legislative assembly is authorized and directed to enact any law necessary or proper to give effect to this article. Provided, that there be and is hereby reserved to the state the right to serve all legal process of the state, both civil and criminal, upon persons and property found within any of said reservations, in all cases where the United States has not exclusive jurisdiction."
The state of Montana, and in particular the section of the state in which Fort Peck townsite is situated, was acquired by the Louisiana purchase. The state acquired its jurisdiction when the Constitution was written under the provisions of the Enabling Act and accepted by the people of the state when it was organized in 1889. The state legislature enacted two provisions respecting the jurisdiction of the United States and the state: sections 24 and 25, enacted in 1893, and 1895, which authorize the United States to assume exclusive jurisdiction over such lands as the government might purchase for the purposes specified in the state and national Constitution. It must be observed that both Constitutions limit the right of the exclusive jurisdiction of the United States to lands "purchased," and this limitation is emphasized in several decisions of the Supreme Court of the United States. (See Fort Leavenworth R. Co. v. Lowe,114 U.S. 525, 5 Sup. Ct. 995, 1002, 29 L. Ed. 264.) "This jurisdiction cannot be acquired tortiously or by disseizin of the state; much less can it be acquired by mere occupancy, with the implied or tacit consent of the state, when such occupancy is for the purpose of protection." (The italicizing of the words "mereoccupancy" is by the writer.) It is practically conceded by all parties to this action that the right to exclusive jurisdiction is strictly limited to lands purchased by the United States.
As said before, the laws passed in 1893 and 1895 provided a general method by which the jurisdiction of the state was passed *Page 527 over to the United States, and both of those provisions required that "an accurate map or plat and description by metes and bounds of said land shall be filed in the office of the county clerk * * * of the county in which the same are situated," before the United States could assume exclusive jurisdiction.
On January 17, 1933, the legislature passed a special Act (Laws 1933-34, Sp. Sess., Chap. 50, now section 25.1, Rev. Codes), applying exclusively to the Fort Peck project. It provided that exclusive jurisdiction of the United States should vest as to lands purchased by the United States when that exclusive jurisdiction was demanded and a map filed with the Governor. The particular provisions of that law applicable here read as follows: "That consent to purchase or condemn all necessary lands is hereby given and concurrent jurisdiction shall be, and the same is hereby, ceded to the United States over the Fort Peck dam, the body of water or artificial lake created by such dam, the land under such body of water, and any lands now owned or which may be hereafter acquired by the United States and which shall touch such body of water, all such being situated in the counties of Valley, Phillips, McCone, Garfield, Petroleum and Fergus, State of Montana, saving, however, to the said state the right to serve civil or criminal process within the limits of the territory over which jurisdiction is so ceded in any suits or prosecutions for or on account of rights obtained, obligations incurred, or crimes committed in said state, within or without said territory, and saving further to the said state the rightto tax persons and corporations, their franchises and propertywithin said territory, and reserving further to the said state and its inhabitants, citizens, and nonresidents the right to fish or hunt by boat or otherwise, and the right of access, ingress and egress to and through said ceded territory to all persons owning or controlling livestock for the purpose of watering the same, and saving further to the state jurisdiction in the enforcement of the state laws relating to the duties of the livestock sanitary board, and the state board of health, and the enforcement of regulations promulgated by said boards in accordance *Page 528 with the laws of said state; provided, however, thatjurisdiction shall not vest until the United States, through theproper officers, notifies the governor of the state of Montanathat they assume police or military jurisdiction over saidterritory."
It will be noted that the above language specifically provides that before the United States shall assume exclusive jurisdiction, it was required to file with the Governor a statement of the lands purchased, with description thereof, and a statement that the United States was thereby demanding exclusive jurisdiction. Particular attention is called to the two methods of advising the state of the purpose of the United States to assume jurisdiction. In the older laws, notice was to be filed with the county clerk. In the later special law, the notice was to be filed with the Governor.
The controversy here depends almost entirely upon which one of the three laws governs. The older laws do not make any exceptions to the exclusive jurisdiction. The later special law, effective January 17, 1934, reserves the right to the state to tax personal property. It is plain that no tax could be levied on any property belonging to the United States within this territory, and no claim is made by the state that it can do so. Buildings, if any, placed on this Fort Peck land by private individuals are not in issue in this case. Certain merchants on the Fort Peck townsite appearing as interveners are the real parties defendant in this suit. As said before, the federal government is not appearing in any manner or taking any part.
It is alleged that work was commenced on the dam and certain roads and streets were laid out in the Fort Peck townsite in the late fall of 1933. The land was owned by Chester Taylor and others in severalty. There is no definite statement of the extent or character of the possession taken by the government. The interveners allege that the land embraced within what is now the townsite of Fort Peck was occupied by the government prior to January 1, 1934, which would be prior to the passage of the special Fort Peck Act; but resort is necessary to an unofficial map to point out the townsite. The interveners allege *Page 529 that on November 11, 1933, "Taylor, the owner of the land embraced in tract 1 * * * gave the United States an option topurchase the land." That on November 29, 1933, the district engineer, United States Engineer Department, requested authority from the chief engineer to buy the land from Mr. and Mrs. Taylor, and to take immediate possession thereof. That on December 26, 1933, the acting chief of engineers of the United States Engineer Department requested authority of the Secretary of War of the United States to buy the land, take immediate possession, and proceed with the construction work of the town of Fort Peck thereon, and such authority was granted by the Secretary of War on December 28, 1933. Under the option, but before the approval by the Secretary of War, and on or about December 1, 1933, interveners allege the United States took exclusive possession of the land in the Fort Peck townsite, and ever since has been in such exclusive possession, and has been and is the sole owner thereof. It is further alleged by interveners that "owing to the need for clearing title the deeds of conveyance from Mr. and Mrs. Taylor to the United States were not delivered until April 11, 1934." The conveyances of the other owners were made later, the last on January 5, 1935, "sometime after the establishment of the town."
Let it be noted that the possession was under the option and that the earliest deed was April 11, 1934, over a month after the special Fort Peck Act went into effect. The interveners and the defendants claim that the possession taken by the government prior to January 1, 1934, then constituted the government a purchaser, and therefore then qualified it to assume exclusive possession. I think there can be no controversy over the statement that an option must be accepted by the proposed purchaser and such acceptance communicated to the owner of the land before the acceptance of the option is complete, and that the sole offer is not beyond the power of the owner to withdraw unless some consideration has passed or the time limit in the option prevents. There is no allegation or evidence or statement in the record as to when this option was to expire or the terms thereof, or when it was actually accepted by the government, *Page 530 and particularly when such acceptance was communicated to the owners. The Taylor deed was dated April 11, 1934, long after the special Act went into effect. It further appears that a portion of the land in the townsite was owned by a school district and only a reversionary interest was to be purchased.
The government, through the War Department, did not express its desire to assume exclusive jurisdiction to any officer of the county or state until its communication to the Governor of the state on October 10, 1934, many months after the special Act became effective. The communication is as follows:
"I take pleasure in transmitting for your information a map showing in colors the land acquired, and being acquired, for the execution of the project authorized by the Public Works Administration for the construction of the Fort Peck dam. These lands include the site of the dam, construction town, tunnels and spillway. The lands, as shown in the map in color, are noweither owned by the United States or are in course ofacquisition. Those in course of acquisition are in possession of the United States under the terms of agreement with owners orunder order of the Court in condemnation.
"The nature, character and extent of the work at the locality is such that the United States must now assume police jurisdiction over the lands hereinbefore described. It is my duty therefore, to issue instructions to the federal officials in charge of the work that they shall assume complete and exclusive jurisdiction over these lands. I shall appreciate your cooperation in so advising the officials of your state." (Signed by Harry H. Woodring, Acting Secretary of War.)
"(Note.) This map was filed in the office of the Secretary of State of Montana, and copies of the letter from the War Department were sent to officials of the counties interested."
This is the only official communication from the government to the state with relation to the above matter.
The map filed with the letter shows three classes of lands, the one in red comprising about 22,680 acres, the area over which exclusive jurisdiction was assumed by the letter dated October 10, 1934, from the Assistant Secretary of War to the Governor. *Page 531 Apparently the lands shown on the map in yellow, covering several thousand acres over a territory a hundred miles long, were not claimed for exclusive jurisdiction by the government, as evidenced by the letter and map of October 10, 1934. This letter states that these lands include "the site of the dam, construction town, tunnels and spillway" and that only part of them has been acquired, but it states that the lands notacquired are in the possession of the government, and proceedings "are pending for purchase." The titled lands are not specifically described, so that it is impossible from the letter or map to tell exactly what lands have been purchased and, therefore, what lands could lawfully at such time be placed under the exclusive jurisdiction of the United States. However, by the letter, the Fort Peck townsite is not definitely described, and the lands marked in red are important in this case as demonstrating the indefinite character of the description of the area, and also very important in this case to show the first date when jurisdiction of any land was claimed by the United States. The letter further states that the "United States must nowassume police jurisdiction over the lands hereinbeforedescribed." That statement would imply that previous jurisdiction was not claimed; indeed, the failure of the government to file any other map or statement claiming any character of jurisdiction prior to that time would necessarily imply that no previous exclusive jurisdiction was claimed. The letter addressed to the Governor, instead of filing the description with the county clerk, would further carry the very significant implication that the government did not claim exclusive jurisdiction over any other lands in the state for this purpose, and that the claim then made was under the special, and not under the general, Act.
In reply to the above letter the Acting Governor of the state expressed his understanding to the same effect in very definite language, as follows:
"October 15, 1934.
"This is to acknowledge receipt of your letter of October 10 (E.D. 6500-Fort Peck Res.-362) giving notice that the Federal *Page 532 Government assumes complete and exclusive jurisdiction over lands acquired and being acquired for the construction of the Fort Peck Dam. This is in accordance with the provisions of Chapter 50, Laws of the Extraordinary Session of 1933-34. I thank you for the information conveyed, and shall file the map inclosed with the proper state authority, and advise the officials of the state of the action taken by the Federal Government." (Signed by R. Pauline, Acting Governor.)
It will be observed that the Governor construed the letter from the government as complying with the special Act, and not in any way a compliance with the general Act. Therefore it would appear that both the government and the state assumed that all parties were acting under the special Act. If the government were a party to this action and claiming otherwise, the many citations of the United States Supreme Court decisions appearing in the majority opinion might be appropriate. The parties to this contract, if it may properly be called a contract, are the only proper parties to define the extent of the jurisdiction of the United States.
Another situation of grave and practical importance presents itself. The Constitutions of both the United States and the state authorize the government to assume exclusive jurisdiction only of lands purchased. The majority opinion asserts that taking possession of lands amounted to a purchase, and it cites several United States Supreme Court cases which, in the abstract, appear to support this proposition. But the fact is, as will appear upon reading the full text of these decisions, that they were suits for the recovery of the purchase price of the lands in question, and the decisions have no reference to the time when the right of the federal government to assume exclusive jurisdiction accrued. The language of both Constitutions is so plain and unambiguous that no authorities are required to construe it. "Purchase" means more than mere possession. Referring again to the letter from the government dated October 10, 1934, we note the description of the lands actually theretofore purchased is not shown either in the letter or in the map. It merely says that the lands are eitherpurchased *Page 533 or are in course of acquisition. Since the lands not yet purchased, that is, the lands in course of acquisition, are not definitely defined, neither are the lands which have been purchased defined. It is plain that the purpose of the law is that, before exclusive jurisdiction is taken, the lands must be definitely described. Indeed, if the state is to divest itself of its jurisdiction, that is to say, if this large area of land indicated in red on the map embracing about 22,680 acres is to be eliminated from the state, it becomes vastly important to have an accurate description. Further than this, it is almost necessary that the divested lands should be in a reasonably compact body. If the government is to assume exclusive jurisdiction over scattered subdivisions marked only by survey lines on paper, the jurisdiction of the state and the federal government, respectively, will be in frequent conflict for uncertainty. If the land is checker-boarded, one jurisdiction here and another across a 40-acre subdivision line, an assessor will have to take with him a surveyor whenever he attempts to assess the property in that territory. The government will have equal difficulty in determining the extent of its supervision over the checker-boarded territory.
On the other hand, if the assumption of the exclusive jurisdiction be delayed until all the land desired can be purchased and exclusive jurisdiction then assumed over a compact area, it will be far more practical than to accept the fragmentary area that may isolate tracts as small as 40 acres. At all events, the entire area shown in red on the map, much of it admittedly not purchased at the time the letter was written, could not be claimed as all subject to the exclusive jurisdiction by the federal government. If a part only, what is the part?
As stated before, the Constitutions authorize exclusive jurisdiction of forts, arsenals, and other needful buildings. Some courts have construed this language to include stocks of merchandise and other personal property, basing their conclusions solely on the words "other needful buildings." This construction goes beyond my limit and I cannot lend my approval *Page 534 thereto, even though it be contrary to the decisions of several very prominent United States Supreme Court judges. While my objection is not in any way vital to the decision of the case, I take this occasion to voice my objection to such a perverted construction.
In conclusion, let me again say that so long as the lands in the Fort Peck townsite had not been purchased at the time the special Act of January 17, 1934, became effective, the Constitution did not authorize the granting by this state of exclusive jurisdiction to, or the assumption of such jurisdiction by, the United States of the area in question — the Fort Peck townsite — and therefore the assessor had the right to assess the personal property on the Fort Peck townsite.
MR. CHIEF JUSTICE SANDS and MR. JUSTICE ANGSTMAN dissenting.
Appeal taken to Supreme Court of the United States September 17, 1937.