Adams v. Londeree

Given, President:

In this original proceeding in mandamus, the relators, W. P. Adams, Homer Morris, Duffy Mullins, J. C. Wells and J. H. Young, prayed that defendants S. H. Mullins and Willis A. Taylor, ballot commissioners of the City of South Charleston, be directed to strike the name of defendant Joseph W. Londeree, Democratic candidate for Mayor of South Charleston, from the ballot for a general election to be held for that city, and that defendant Paul E. Wehrle, clerk, and as such registrar of voters for Kan-awha County, wherein that city is situated, be directed to strike the name of Joseph W. Londeree from the voters’ registration records. Relators prosecute this action as residents and voters of the City of South Charleston, for the benefit of themselves and all other residents and voters of South Charleston.

The questions posed having been decided by the Court, an order was heretofore entered denying the writ. This opinion is filed in accordance with an announcement made at the time of the entry of the order.

The proceeding was heard upon the petition of relators; the demurrer and answer thereto of defendant Londeree; the answer thereto of defendant Paul E. Wehrle, clerk; the demurrer and replication of relators to the answer of defendant Londeree; the depositions taken and filed on behalf of relators; and upon briefs and oral arguments.

In the certificate of Londeree announcing his candidacy for the nomination of mayor, he gave his address “as 32 Rhodes Avenue in said City”. The petition alleges “that the said address, and it was the correct address of said Londeree at said time, is within the bounds of said United States Naval Reservation”. The answer of Londeree “admits that at the time of his nomination and for several years prior thereto he was a resident of that part of the City of South Charleston included in the United States Naval Reservation and that he did give his address as 32 Rhodes Avenue in said city and that such address is correct and that said address is within the bounds of the said United States Naval Reservation * * *”.

Londeree is not a member of the armed forces and is not a civilian employee of any agency or department of the United States Government. At the time of filing the certificate of candidacy he, with his family, occupied one of a number of residential units, constructed and maintained by the United States upon the reservation, leased or rented to civilians, for a consideration, when not required for use of military personnel. The naval reservation is wholly within the exterior boundary lines of the City of South Charleston. Sometime after Londeree announced his candidacy for nomination for mayor, he moved from the reservation to an address within the City of South Charleston, but he will have resided outside of the reservation less than sixty days next preceding the date fixed by law for the holding of the election.

Defendants contended that the extraordinary remedy of mandamus would not lie for the purpose of determining the qualification of defendant Londeree, prior to his election, since it was not certain that he would be elected. In other words, they contend that the institution of the proceeding was premature. We are of the opinion, however, that the institution of the proceeding was not premature.

Section 9 of the city charter provides that “No persons shall be eligible to the office of Mayor, Treasurer, Recorder, or Councilman, unless at the time of his election he is legally entitled to vote in the town election for a member of the Common Council, and he was for the preceding year assessed with taxes upon real or personal property within said town of the assessed aggregate of at least One Hundred ($100.00) Dollars and shall have actually paid the taxes so assessed.” It is significant that the qualifications must exist “at the time of his election”, not at some future time or upon the happening of some future event. The provision is clear. It should be applied as written. In State ex rel. Morrison v. Freeland, 139 W. Va. 327, 81 S. E. 2d 685, we held: “2. Where a statute requires that a person to be elected to office shall have a specific qualification at the time of his election, the requirement is not satisfied by the removal of the disqualification after election.” This being true, since the contest can not arise until after the election, to hold that mandamus can not be invoked in such cases as to a nominee for office would have the effect of denying any remedy prior to the election and, where the candidate elected could not qualify as to the office sought, would have the effect of rendering the election as to that office a nullity. Surely no such result could have been contemplated. It would not tend to induce orderly elections. In State ex rel. Harwood v. Tynes, 137 W. Va. 52, 70 S. E. 2d 24, and in State ex rel. McKnight v. Board of Ballot Commissioners of Wetzel County, 86 W. Va. 496, 103 S. E. 399, we did hold that: “When a candidate for a nomination in a primary election files a certificate with the clerk of the circuit court, from which it appears that he is eligible to hold the office for which he is a candidate, the board of ballot commissioners have no authority to institute an inquiry for the purpose of determining the question of his legal qualifications to hold such office. The duty of said board is to place his name upon the ballot and allow the question of his eligibility to be determined by a competent tribunal, should he be elected thereto.”

The. question involved there, however, related to the jurisdiction of the board of ballot commissioners to determine the qualification of a candidate in a primary election, where the certificate of candidacy was regular and showed on its face that the candidate was qualified to hold the office for which he sought the nomination. No jurisdiction to determine such question was vested in the board of ballot commissioners by any statute. Therefore, it had no jurisdiction to make any independent investigation in order to determine such qualification. But lack of jurisdiction of such a board can not be determinative of jurisdiction of a court having original jurisdiction in mandamus. Defendant members of the board of ballot commissioners hold office by virtue of the election laws, and Code, 3-5-41, provides that “Any officer or person, upon whom any duty is devolved by this chapter, [on Elections] may be compelled to perform the same by writ of mandamus.” While the chapter mentioned relates particularly to elections other than municipal elections, undoubtedly the provision quoted applies to muncipal elections, by virtue of Code, 8-3-15, dealing with municipal elections. It must not be overlooked, however, that a relator in such a proceeding must show a clear legal right, and that courts are not warranted in issuing the writ unless a clear legal right exists.

This Court has carefully pointed out in its opinions that the wording of a particular statute relating to qualifications of candidates is controlling in determining the time when the qualifications must exist. The question was recently considered in State ex rel. Morrison v. Freeland, supra, and need not be further considered here. See Slater v. Varney, 136 W. Va. 406, 68 S. E. 2d 757; Dryden v. Swinburne, 20 W. Va. 89.

The further contention is made by defendants that the remedy of an election contest afforded by Code, 3-9-1, instituted and prosecuted before a city council as to city officials, is adequate for determination of qualifications of a candidate, and that any question as to qualification of Londeree lies exclusively within the jurisdiction of the city council of South Charleston. They rely on cases like State ex rel. Harwood v. Tynes, supra; State ex rel. Jones v. Ingram, 135 W. Va. 548, 63 S. E. 2d 828; Evans v. Charles, 133 W. Va. 463, 56 S. E. 2d 880; and Martin v. White, 74 W. Va. 628, 82 S. E. 505.

It is true, as pointed out in some of the cases just cited, that in some instances the qualification of a candidate may be determined in an election contest proceeding. Code, Chapter 3, Article 9. To say that it is the only available and adequate remedy, however, obviously would deny courts having original jurisdiction of such proceedings as mandamus, quo warranto or prohibition, any jurisdiction as to questions concerning qualifications of candidates for nomination or election to office. The cases cited are sufficient authority to the contrary. See State ex rel. Morrison v. Freeland, supra.

We conclude, therefore, that the action of mandamus, in the circumstances of this case, was available to relators, and that it was not prematurely instituted.

The remaining question to be answered by the Court relates to the qualification of Londeree to be elected as Mayor of South Charleston. The contention of relators was that since Londeree resided on the naval reservation for a number of years prior to becoming a candidate, the reservation being within the exclusive jurisdiction of the United States and not a part of the State of West Virginia, he was not a resident of the State at the time he filed his certificate of candidacy, and could not have become a person who had resided in West Virginia for a period of one year immediately prior to the time he would be “elected” to the office which he seeks. In other words, not being a resident of the State for a period of one year, he could not qualify for the office.

Section 4 of Article IV of the State Constitution provides that “No person, except citizens entitled to vote, shall be elected or appointed to any State, county, or municipal office * * *”. Section 1 of Article IV of the State Constitution provides that “The * * * citizens of the State shall be entitled to vote at all elections held with-in the counties in which they respectively reside; but no person * * * who has not been a resident of the State for one year, and of the county in which he offers to vote, for sixty days next preceding such offer, shall be permitted to vote while such disability continues; but no person in the military, naval or marine service of the United States shall be deemed a resident of this State by reason of being stationed therein.” Obviously, the question reduces itself to whether Londeree was a citizen and resident of the State, within the meaning of the State constitutional provision, while residing on the reservation. The answer to that question will become apparent if we can determine the true character or effect of the acquisition by the United States of the area comprising the reservation.

Title to the land within the reservation was acquired from the individual owners about 1917, prior to the incorporation of the City of South Charleston. By Sections 4 and 5 of Chapter 20 of the 1881 Acts of the Legislature, provisions were made for the acquisition of lands within the State by the United States. These sections read: “4. In pursuance of the seventeenth clause of the eighth section of the first article of the constitution of the United States, the consent of the legislature of West Virginia is hereby given to the purchase or condemnation, whether heretofore or hereafter made or had by the government of the United States, or under its authority, of any tract or parcel of land within the limits of the state, for the purpose of erecting thereon lighthouses, beacons, signal stations, post offices, custom houses, court houses, locks, dams, and works for the improvement of the navigation of any water course, and other needful buildings or structures. The evidences of title to such land shall be recorded as in other cases. But the quantity of land to be so acquired shall not exceed twenty-five acres in any one place.” “5. The state of West Virginia reserves the right to execute process, civil or criminal, within the limits of any lot or parcel of land so acquired by the United States as aforesaid.”

Before the acquisition by the United States of title to the area comprising the reservation, by Chapter 5 of the 1917 Acts of the Legislature, Second Extraordinary Session, Section 4 was amended to read, in so far as material here: “In pursuance of the seventeenth clause of the eighth section of the first article of the constitution of the United States, the consent of the Legislature of West Virginia is hereby given to the purchase or condemnation or acceptance as a gift, whether heretofore or hereafter made or had to the government of the United States, or under its authority, of any tract or parcel of land within the limits of the state, for the purpose of erecting thereon light houses, beacons, signal stations, post offices, custom houses, court houses, locks, dams, works for the improvement of the navigation of any watercourse, armor plate manufacturing plants, projectile factories or factories of any kind or character, or any other needful buildings or structures or proving grounds, or work of public improvement whatever, or for any other purpose for which the same may be needed or required by the government of the United States. The evidence of title to such land shall be recorded as in other cases.”

Section 4, as amended, and Section 5, quoted above, were in force at the time the South Charleston Reservation was ceded to the United States.

Subsequent to the acquisition by the United States, with the adoption of the 1931 Code, Sections 4 and 5, quoted above, were revised and, in so far as material here, read: “4. The consent of this State is hereby given to the acquisition by the United States, or under its authority, by purchase, lease, condemnation, or otherwise, or any land acquired, or to be acquired in this State by the United States, from any individual, body politic or corporate, for sites for light houses, beacons, signal stations, post offices, customhouses, courthouses, arsenals, soldiers’ homes, cemeteries, locks, dams, armor plate manufacturing plants, projectile factories or factories of any kind or character, or any needful buildings or structures or proving grounds, or works for the improvement of the navigation of any watercourse, or work of public improvement whatever, or for the conservation of the forests, or for any other purpose for which the same may be needed or required by the government of the United States. The evidence of title to such land shall be recorded as in other cases * * * Concurrent jurisdiction with this State in and over any land so acquired by the United States shall be, and the same is hereby, ceded to the United States for all purposes; but the jurisdiction so ceded shall continue no longer than the United States shall be the owner of such lands, and if the purposes of any grant to the United States shall cease, or the United States shall for five consecutive years fail to use any such land for the purposes of the grant, the jurisdiction hereby ceded over the same shall cease and determine, and the right and title thereto shall reinvest in this State. The jurisdiction ceded shall not vest until the United States shall acquire title of record to such land. Jurisdiction heretofore ceded to the United States over any land within this State by any previous acts of the legislature shall continue according to the terms of the respective cessions.” “5. The State of West Virginia reserves the right to execute process, civil or criminal, within the limits of any lot or parcel of land heretofore or hereafter acquired by the United States as aforesaid, and such other jurisdiction and authority over the same as is not inconsistent with the jurisdiction ceded to the United States by virtue of such acquisition.” See Sections 3 and 4 of the 1931 Code.

Section 8 of Article I of the United States Constitution, in so far as material, reads: “The Congress shall have the 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, dock-Yards, and other needful buildings * *

At the time of the acquisition of title to the lands within the reservation, an Act of Congress provided: “No public money shall be expended upon any site or land purchased by the United States for the purposes of erecting thereon any armory, arsenal, fort, fortification, navy-yard, customhouse, lighthouse, or other public building, of any kind whatever, until the written opinion of the Attorney-General shall be had in favor of the validity of the title, nor until the consent of the legislature of the State in which the land or site may be, to such purchase, has been given * * *”. Revised Statutes, Section 355. The provision as amended now reads: “* * * Notwithstanding any other provision of law, the obtaining of exclusive jurisdiction in the United States over lands or interests therein which have been or shall hereafter be acquired by it shall not be required; but the head or other authorized officer of any department or independent establishment or agency of the Government may, in such cases and at such times as he may deem desirable, accept or secure from the State in which any lands or interests therein under his immediate jurisdiction, custody, or control are situated, consent to or cession of such jurisdiction, exclusive or partial, not theretofore obtained, over any such lands or interests as he may deem desirable and indicate acceptance of such jurisdiction on behalf of the United States by filing a notice of such acceptance with the Governor of such State or in such manner as may be prescribed by the laws of the State where such lands are situated. Unless and until the United States has accepted jurisdiction over lands hereafter to be acquired as aforesaid, it shall be conclusively presumed that no such jurisdiction has been accepted.” 50 U. S. C., Section 175.

In considering the question posed, we need not consider the different methods whereby the Federal Government may acquire title to State lands, or the power or jurisdiction of the Federal Government over such lands, other than the method whereby title is acquired pursuant to the consent of the Legislature of the State. The basis and, to some degree, the effect of the “consent” provision of such statutes is stated in Fort Leavenworth Railroad Co. v. Lowe, 114 U. S. 525, 29 L. ed. 264, 5 S. Ct. 995, in this language: “This power of exclusive legislation is to be exercised, as thus seen, over places purchased, by consent of the Legislatures of the States in which they are situated, for the specific purposes enumerated. It would seem to have been the opinion of the framers of the Constitution that, without the consent of the States, the new government would not be able to acquire lands within them; and therefore it was provided that when it might require such lands for the erection of forts and other buildings for the defense of the country, or the discharge of other duties devolving upon it, and the consent of the States in which they were situated was obtained for their acquisition, such consent should carry with it political dominion and legislative authority over them. Purchase with such consent was the only mode then thought of for the acquisition by the General Government of title to lands in the States. Since the adoption of the Constitution this view has not generally prevailed. Such consent has not always been obtained, nor supposed necessary, for the purchase by the General Government of lands within the States. If any doubt has ever existed as to its power thus to acquire lands within the States, it has not had sufficient strength to create any effective dissent from the general opinion. The consent of the States to the purchase of lands within them for the special purposes named is, however, essential, under the Constitution, to the transfer to the General Government, with the title, of political jurisdiction and dominion. Where lands are acquired without such consent, the possession of the United States, unless political jurisdiction be ceded to them in some other way, is simply that of an ordinary proprietor. The property in that case, unless used as a means to carry out the purposes of the government, is subject to the legislative authority and control of the States equally with the property of private individuals.

“But not only by direct purchase have the United States been able to acquire lands they needed without the consent of the States, but it has been held that they possess the right of eminent domain within the States, using those terms, not as expressing the ultimate dominion or title to property, but as indicating the right to take private property for public uses when needed to execute the powers conferred by the Constitution; and that the General Government is not dependent upon the caprice of individuals or the will of State Legislatures in the acquisition of such lands as may be required for the full and effective exercise of its powers. This doctrine was authoritatively declared in Kohl v. U. S., 91 U. S. 367***”.

The Fort Leavenworth Railroad Co. case involved the payment of certain taxes assessed by the State against property situated on the Fort Leavenworth Military Reservation. Title to the land within the reservation was acquired pursuant to an Act of the Legislature of Kansas ceding “Jurisdiction to the United States over the Territory of the Fort Leavenworth Military Reservation”, but saving to the State the right to “serve civil or criminal process within said Reservation * * * and * * * the right to tax railroad, bridge and other corporations, their franchises and property, on said Reservation”. The saving to the State was held valid and the tax assessment against the railroad company upheld. It must be conceded, however, that statements found in the opinion, and also in other opinions, can possibly be construed to mean that where land is acquired by the United States pursuant to Clause 17 of Section 8 of Article I of the Federal Constitution, for the purposes therein mentioned, the Federal Government will be presumed to have accepted full and complete jurisdiction over the territory, not merely “power * * * to exercise exclusive legislation in all cases whatsoever * * *” as to the purposes for which the United States acquired the land. It must also be conceded that some of the authorities consider the holdings in the older cases to mean that the Federal Government becomes sole and absolute sovereign over such territory, in all respects and as to all purposes, not merely as to the purposes for which Clause 17 authorized the acquisition, and that it becomes such, without any acceptance, by Act of Congress or otherwise, upon the mere acquisition of title to the property. See Surplus Trading Company v. Cook, 281 U. S. 647, 74 L. ed. 1091, 50 S. Ct. 455; United States v. Unzeuta, 281 U. S. 138, 74 L. ed. 761, 50 S. Ct. 284; Arlington Hotel Company v. Fant, 278 U. S. 439, 73 L. ed. 447, 49 S. Ct. 227; McMahon v. Polk, 10 S. D. 296, 73 N. W. 77, 47 L. R. A. 830; In Re Town of Highlands, 22 N. Y. S. 137; Arledge v. Mabry, 52 N. M. 303, 197 P. 2d 884; State ex rel. Wendt v. Smith, 63 Ohio Law Abst. 31, 103 N. E. 2d 822; Sinks v. Reese, 19 Ohio St. 306, 2 Am. Rep. 397; Kiker V. City of Philadelphia, 31 A. 2d 289, Certiorari Denied 320 U. S. 741.

The reasoning usually followed in the cases was that the ceding of land to the United States ousted the State as a sovereign and constituted the United States the sole sovereign as to such territory, following by analogy, the ceding of territory by one nation to another nation, whereby the laws of the ceding nation were superseded entirely by the laws of the nation to which the territory was ceded. See Chicago, Rock Island and Pacific Railway Co. v. McGlinn, 114 U. S. 542, 29 L. ed. 270, 5 S. Ct. 1005. Is not the analogy inept? Our American form of government is not two separate and distinct sovereigns. It is, in fact, as all recognize, a single sovereign, of dual aspect. Within its own field the Federal Government is absolutely sovereign. It is just as true, however, that a State within its own field is absolutely sovereign. It is also true that the sovereign power of the United States and of the different States, respectively, is concurrently exercised over all the territory of the several States. These facts are demonstrated almost daily when the Federal Courts refuse to hear matters of litigation where no Federal question is involved, or where a State Court refuses to hear questions cognizable only under Federal laws. The State and the United States constitute one, and only one, sovereign. This being true, is there any reason or necessity for holding that the Federal Government must necessarily oust the State of its sovereignty as to those matters constituting no impediment or interference with the use by the Federal Government of the land for the purpose or purposes for which it is acquired pursuant to the provisions of Clause 17? The question is not new. It has been considered often and, except in some of the older cases, usually answered in the negative.

Thus, in James v. Dravo Contracting Company, 302 U. S. 134, 82 L. ed. 155, 58 S. Ct. 208, one of the questions involved related to the validity of a tax assessment by the State against the Dravo Contracting Company “As to work done within the exterior limits of West Virginia, the question is whether the United States has acquired exclusive jurisdiction over the respective sites. Wherever the United States has such jurisdiction the State would have no authority to lay the tax”. The assessment was upheld. In discussing the question, Mr. Chief Justice Hughes, in the opinion of the Court, uses this language: “It is not questioned that the State may refuse its consent and retain jurisdiction consistent with the governmental purposes for which the property'was acquired. The right of eminent domain inheres in the Federal Government by virtue of its sovereignty and thus it may, regardless of the wishes either of the owners or of the States, acquire the lands which it needs within their borders. Kohl v. United States, 91 U. S. 367, 371, 372, 23 L. ed. 449, 451. In that event, as in cases of acquisition by purchase without consent of the State, jurisdiction is dependent upon cession by the State and the State may qualify its cession by reservations not inconsistent with the governmental uses. 2 Story, Const. § 1227; Kohl v. United States, supra (91 U. S. 374, 23 L. ed. 452); Ft. Leavenworth R. Co. v. Lowe, 114 U. S. 525, 29 L. ed. 264, 5 S. Ct. 995, supra; Surplus Trading Co. v. Cook, 281 U. S. 647, 74 L. ed. 1091 50 S. Ct. 455, supra; United States v. Unzeuta, 281 U. S. 138, 74 L. ed. 761, 50 S. Ct. 284, supra. The result to the Federal Government is the same whether consent is refused and cession is qualified by a reservation of concurrent jurisdiction, or consent to the acquisition is granted with a like qualification. As the Solicitor General has pointed out, a transfer of legislative jurisdiction carries with it not only benefits but obligations, and it may be highly desirable, in the interest both of the national government and of the State, that the latter should not be entirely ousted of its jursdiction. The possible importance of reserving to the State jurisdiction for local purposes which involve no interference with the performance of governmental functions is becoming more and more clear as the activities of the Government expand and large areas within the States are acquired. There appears to be no reason why the United States should be compelled to accept exclusive jurisdiction or the State be compelled to grant it in giving its consent to purchases.” We do not overlook the fact that the land acquired by the United States, upon which the work was performed by Dravo, was acquired under the later statute whereby concurrent jurisdiction was saved to the State, but the case seems clear authority for the position that the State may reserve such rights, in the ceding of its lands to the United States, as it may deem wise, and for the further position that there must be an acceptance by the United States of such rights as it desires to exercise before it can be charged with exclusive power to legislate.

In Carnegie-lllinois Steel Corporation v. Alderson, 127 W. Va. 807, 34 S. E. 2d 737, Certiorari denied 326 U. S. 764, 90 L. ed. 460, 66 S. Ct. 146, this Court held: “2. A concern engaged exclusively in producing war material for the use of the United States Government at a time of national emergency, with machinery and in a plant leased from the Government and under contracts providing a fixed unit price to be paid by the Government, is not to be treated as exercising a sovereign function of the Federal Government and therefore exempt from a state tax, in the absence of an Act of Congress recognizing the claimed exercise.” There were involved in the case the assessment and collection of a tax by the State against a taxpayer operating as a lessee of the United States upon the very reservation involved in the instant proceeding. The tax was held valid by virtue of the Act of Congress commonly referred to as the “Buck Act”, Public Act No. 819, 54 Statutes 1059, 4 U. S. C., Section 14. The significance of the holding here is that any “power to legislate” as to the assessment and payment of the tax acquired by the United States by virtue of the “Buck Act” has been re-ceded to the State, so that the defendant Londeree would be liable for a like tax and, if not entitled to vote, we would have a clear case of taxation without representation, brought about by deliberate actions of the State and the United States. Assuming that the consent of the State to the acquisition of the reservation here involved deprived the State of all rights of sovereignty over the territory therein, has not the United States re-ceded such sovereignty to the State, in so far as taxation and the right to vote are concerned?

In Silas Mason Co. v. Tax Commission of the State of Washington, 302 U. S. 186, 82 L. ed. 187, 58 S. Ct. 233, the question of exclusive jurisdiction of the United States over territory acquired pursuant to authority of a statute of the State of Washington, very similar if not to the precise effect as that of the West Virginia statute presently involved, was considered. In the opinion, Mr. Chief Justice Hughes stated: “Even if it were assumed that the state statute should he construed to apply to the Federal acquisitions here involved, we should still be met by the contention of the Government that it was not compelled to accept, and has not accepted, a transfer of exclusive jurisdiction. As such a transfer rests upon a grant by the State, through consent or cession, it follows, in accordance with familiar principles applicable to grants, that the grant may be accepted or declined. Acceptance may be presumed in the absence of evidence of a contrary intent, but we know of no constitutional principle which compels acceptance by the United States of an exclusive jurisdiction contrary to its own conception of its interests. The mere fact that the Government needs title to property within the boundaries of a State, which may be acquired irrespective of the consent of the State (Kohl v. United States, 91 U. S. 367, 371, 372, 23 L. ed. 449, 451) does not necessitate the assumption by the Government of the burdens incident to an exclusive jurisdiction. We have frequently said that our system of government is a practical adjustment by which the national authority may b'e maintained in its full scope without unnecessary loss of local efficiency. In acquiring property, the Federal function in view may be performed without disturbing the local administration in matters which may still appropriately pertain to state authority * *

In Atkinson v. State Tax Commission of Oregon, 303 U. S. 20, 82 L. ed. 621, 58 S. Ct. 419, land was ceded to the United States under a state statute whereby the United States could acquire exclusive jurisdiction of certain lands. The question before the Court related to the validity of personal income taxes assessed under Oregon law arising from work done upon land acquired by the United States. In holding the tax valid, the Supreme Court of Oregon stated: “The mere fact that there may be on the statute books of the state a general law, such as §60-1303, Oregon Code 1930, consenting to the purchase of land by the United States and granting to the national government the right to exercise exclusive jurisdiction thereover, does not imply that over all lands purchased by the national government in the state after the enactment of such law the state is divested ipso facto of sovereignty, and exclusive control over the acquired area is assumed by the federal government. In the instant case there is nothing to indicate that the federal government desires to exercise exclusive legislative jurisdiction over the land purchased by it within the Bonneville project * * In upholding the validity of the tax and in affirming the judgment of the Supreme Court of Oregon, the Federal Supreme Court stated: “* * * If, however, exclusive jurisdiction, although offered, was not accepted by the United States, there is no warrant for the conclusion that the State did not retain its territorial jurisdiction over the area in question so far as its exercise involved no interference with the carrying out of the federal project. And as we have decided that there is no such intereference through the enforcement of a tax such as is here assailed, we find no ground for overruling the decision of the state court.”

In Sadrakula v. James Stewart & Co., 280 N. Y. 730, 21 N. E. 2d 217, it was held that the labor laws of the State of New York remained in force within territory over which the United States had obtained exclusive jurisdiction. On affirming, the United States Supreme Court stated: “It is now settled that the jurisdiction acquired from a state by the United States whether by consent to the purchase or by cession may be qualified in accordance with agreements reached by the respective governments. The Constitution does not command that every vestige of the laws of the former sovereignty must vanish. On the contrary its language has long been interpreted so as to permit the continuance until abrogated of those rules existing at the time of the surrender of sovereignty which govern the rights of the occupants of the territory transferred. This assures that no area however small will be left without a developed legal system for private rights * * James Stewart & Co. v. Sadrakula, 309 U. S. 94, 84 L. ed. 596, 60 S. Ct. 431.

In Arapajolu v. McMenamin, 113 Cal. App. 2d 824, 249 P. 2d 318, the Court had under consideration questions relating to the rights of persons residing upon reservations acquired by the United States under a consent statute to the same practical effect as the applicable West Virginia statute. The Court, in holding the persons entitled to vote, stated: “Respondents argue in their brief: ‘The states could have reserved the right to vote at the time of original cession where such right did not conflict with federal use of the property * * * but did not do so.’ We cannot follow the force of this argument. The State of California did not relinquish to the United States the right of citizens resident on federal lands to vote nor did the United States acquire those rights. The right to vote is personal to the citizens and depends on whether he has met the qualifications of sec. 1, Art. II of our Constitution. If the State retains jurisdiction over a federal area sufficient to justify a holding that it remains a part of the State of California a resident therein is a resident of the State and entitled to vote by virtue of the Constitutionally granted right. No express reservation of such rights is necessary, nor could any attempted express cession of such rights to the United States be effective.” The reasoning applied in that opinion is applicable in the instant case.

There is authority for the position that where property ceded to the United States is no longer used for the purposes for which acquired, it automatically becomes subject to the laws of the State from which acquired. See S. R. A., Inc. v. Minnesota, 327 U. S. 558, 90 L. ed. 851, 66 S. Ct. 749; Palmer v. Barrett, 162 U. S. 399, 40 L. ed. 1015, 16 S. Ct. 837; Fort Leavenworth Railroad Co. v. Lowe, 114 U. S. 525, 29 L. ed. 264, 5 S. Ct. 995.

Other authorities which have considered the question or reflect the numerous difficulties arising from the doctrine of exclusive Federal jurisdiction over such reservations may prove helpful. Adams v. United States, 319 U. S. 312, 87 L. ed. 1421, 63 S. Ct. 1122; Penn Dairies v. Milk Control Commission of Pennsylvania, 318 U. S. 261, 87 L. ed. 748, 63 S. Ct. 617; Pacific Coast Dairy v Department of Agriculture of California, 318 U. S. 285, 87 L. ed. 761, 63 S. Ct. 628; Western Union Telegraph Co. v. Chiles, 214 U. S. 274, 53 L. ed. 994, 29 S. Ct. 613; Renner v. Bennett, 21 Ohio St. 431; Devine v. Unaka National Bank, 125 Tenn. 98, 140 S. W. 747; In Re Kernan, 288 N. Y. S. 329; Harrison v. Laveen, 67 Ariz. 337, 196 P. 2d 456; Barrett v. Parks, 352 Mo. 974, 180 S. W. 2d 665; Herken v. Glynn, 151 Kan. 855, 101 P. 2d 946; Wolcott v. Holcomb, 97 Mich. 361, 56 N. W. 837, 23 L. R. A. 215; 12 George Washington Law Review 80; 37 Yale Law Journal 796; 58 Yale Law Journal 1402; 53 Harvard Law Review 1046; 22 California Law Review 152; 24 California Law Review 573.

In a number of Acts of Congress, rights of States to exercise jurisdiction in some respects over such reservations have been recognized, thus making it clear, we believe, that the lands within such reservations in some respects remain the territory of the ceding States. Thus, in the “Buck Act” mentioned above, 4 U. S. C., Section 14, the’ rights of the respective States to assess and collect “such tax in any Federal area within such State to the same extent and with the same effect as though such area was not a Federal Area”, were recognized. A statute, 40 U. S. C., Section 290, authorizes the several States to apply and enforce the workmen’s compensation laws “to all lands and premises owned or held by the United States of America by deed or act of cession, by purchase or otherwise * * *”. Another statute, 16 U. S. C., Section 457, provides that in case of wrongful death “within a national park or other place subject to the exclusive jurisdiction of the United States * * * such right of action shall exist as though the place were under the jurisdiction of the State * * *”. Another Act, 26 U. S. C., Section 1606, authorizes the respective States to enforce their unemployment compensation laws over “premises owned, held or possessed by the United States, and any State shall have full jurisdiction and power to enforce the provisions of such law to the same extent and with the same effect as though such place were not owned, held, or possessed by the United States”. As early as 1825 the Congress enacted an assimilation crimes statute, providing, in effect, that any offense for which any penalty was not provided by Federal law should be subject to the penalty provided by the State. Revised Statutes, Second Edition, Section 5391. Thus, the effect of such statutes is to recognize or vest in the respective States certain rights and privileges over such reservations and, especially in view of later Acts of Congress authorizing acceptance by the United States of partial jurisdiction, there certainly no longer exists any basis for the holdings to the effect that the United States must have and exercise complete and exclusive jurisdiction over such reseva-tions. “In matters not affecting the operation of the national government, there is no sound reason why federal area residents should not have the same rights, immunities, and responsibilities as residents of the surrounding state”. 58 Yale Law Journal 1402, 1406.

From the authorities considered it is clear, we think, that the State can not be denied sovereignty over any part of its territory except by its own consent; that the consent of the State to acquisition by the United States of territory for certain defined purposes does not deny the exercise of sovereignty of the State over the territory as to purposes which can in no manner conflict or interfere with the use of the territory by the United States for the purpose or purposes for which it was acquired; that exclusive jurisdiction over such territory can not be foisted upon the United States without its acceptance; and that the State and Federal Governments may, and in numerous cases do, exercise concurrent jurisdiction over territory ceded by the respective States to the Federal Government under consent statutes similar to that under which the South Charleston Naval Reservation was acquired.

The same conclusions are clearly reflected under the present State “consent” statute and the applicable Act of Congress quoted above. Thus, the State statute cedes territory only on the condition that it have concurrent jurisdiction over the territory ceded “to execute process * * * and such other jurisdiction and authority over the same as is not inconsistent with the jurisdiction ceded to the United States by virtue of such acquisition”. As to territory acquired pursuant to the provisions of 50 U. S. C., Section 175, quoted above, the United States can not claim jurisdiction greater than indicated in its acceptance. In these circumstances, joint sovereignty will exist. The State sovereignty is limited, of course, to the extent that it will not conflict or interfere with the sovereign power of the United States over such reservations for the purpose or purposes for which acquired.

To hold that the exclusive jurisdiction doctrine contended for by relators applies in the circumstances of the instant case would effectively deny the large ever growing number of individuals residing within Federal enclaves the privilege of voting, notwithstanding they are charged with burdens of government. It would also deny them the benefits of laws in fields wherein the Federal Government can not, or has not, legislated. See Lowe v. Lowe, 150 Md. 592, 133 A. 729, Divorce; Harris v. Harris, 205 Iowa 108, 215 N. W. 661, Divorce; Tagge v. Gulzow, 132 Neb. 276, 271 N. W. 803, Public Schools; Devine v. Unaka National Bank, 125 Term. 98, 140 S. W. 747, Administration of Estates; In Re Kernan, 288 N. Y. S. 329, Custody; Foley v. Shriver, 81 Va. 568, Attachment Proceedings; Heirich v. Howe, 50 N. M. 90, 171 P. 2d 312, Adoptions; In Re Burrus, 136 U. S. 586, 34 L. ed. 500, 10 S. Ct. 850, Domestic Relations. We can not believe that such results were ever intended by the United States or by the State. No necessity therefor existed.

We must now determine the effect of the ceding by the State, and the acquisition of the territory within the South Charleston Naval Reservation, with reference to the rights of a person residing therein with the consent, in fact, at the instance, of the United States, who was for years prior to moving thereon a citizen, resident and voter of the State of West Virginia, and continued as such un~ less residence on the reservation changed his status to that of a nonresident. In considering that question we keep in mind that nothing in the record of this case indicates that the United States has ever accepted, by exercised authority or otherwise, any right of jurisdiction as to the voting privilege of persons residing on the reservation, or of the State in considering and treating such persons as citizens and residents of the State for the purpose of voting therein. We believe no basis exists for any contention that the existence of the right and privilege to vote would in any way conflict or interfere with the use of the property by the United States for the purpose or purposes for which it was acquired. Mere ownership of the land by the United States would enable it to prevent persons from residing thereon. Sovereignty for that purpose would not be necessary. We also keep in mind that the privilege of voting is one of the most prized privileges under our form of government, and that the proper exercise thereof is essential to the continuous and efficient operation of government, both Federal and State. That privilege is guarded jealously by both State and Federal laws, and should not be denied upon superficial technicalities, or refined theories.

As to the question posed, we have concluded that the State, in ceding the territory within the South Charleston Naval Reservation, retained sovereignty over the same to the extent that such State sovereignty does not conflict or interfere with the “power” of the Federal Government “to exercise exclusive jurisdiction” as to the uses and purposes for which the land was acquired, and that such uses and purposes have no relation to the right or privilege of persons residing thereon, with the consent of the United States, to vote in State elections. In so far as this record shows, the Federal Government has never accepted, claimed or attempted to exercise, any jurisdiction as to the right of any resident of the reservation to vote.

Considering the State consent statute under which the land within the reservation was acquired, quoted above, it will be observed that the “consent” given extended only “for the purpose” for which the land could be acquired under Clause 17 “or for any other purpose for which the same may be needed or required by the government of the United States”. The reservation was most certainly not acquired by the United States, and is not needed or used, for any purpose necessitating the disfranchisement of individuals permitted to reside thereon. Being thus qualified and limited, it seems clear that the State intended to consent to the exercise of jurisdiction over the territory by the United States only as to those matters for which the territory was acquired, and to retain sovereignty over the same to the extent that State sovereignty would not conflict with the use of the territory by the United States. Further indication of the intent on the part of the State to retain some right in the territory is found in the provision that “The evidence of title to such land shall be recorded as in other cases”. Would the State be interested in “evidence of title” to land situated completely and absolutely in some foreign jurisdiction?

It may be that in the early history of our country, when the areas of such reservations were few and small (see West Virginia statute quoted above limiting areas which could be ceded to twenty five acres), there was some justifiable reason, or at least no serious injustice, in holding that the Federal Government acquired sole sovereignty over such ceded lands. But can such a result be justified where large and numerous areas are now owned and are being continually acquired by the United States? However that may be, the United States has, we think, long since refused to accept sole sovereignty of such ceded lands and has repeatedly, both through its Courts and by Acts of Congress, recognized and insisted that States have retained sovereignty as to such matters as do not interfere or conflict with the use of the areas by the United States for the purpose or purposes for which the same were ceded. By so holding, the necessity of disfranchising a large number of citizens is avoided.

Having reached the conclusions indicated, the peremptory writ of mandamus prayed for was denied.

Writ denied.