Adams v. Londeree

Raymond, Judge,

dissenting:

The decision of the majority in denying the writ sought in this proceeding is based upon a misconception of the effect of Section 4 of Chapter 5, Acts of the Legislature, 1917, Second Extraordinary Session, and a misapplication of Section 3 of Chapter 1 of the Code of 1931. It is contrary to an unbroken line of decisions of the Supreme Court of the United States and appellate courts in other States, some of which, clearly refuting the conclusion reached, are cited in the majority opinion. It is also completely unsupported by any persuasive applicable text or case authority. In consequence I dissent to the extent indicated in this opinion.

Section 4 of Chapter 5, Acts of the Legislature, 1917, Second Extraordinary Session, pursuant to which the United States acquired the Naval Reservation, contains, among others, these comprehensive provisions: “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 *773as in. other cases.” The only reservation by this State of jurisdiction or authority in effect when the Act of 1917 was passed appeared in Section 5 of, Chapter 20, Acts of the Legislature, 1881, Regular Session, and consisted of the right to execute civil and criminal process within the limits of any land acquired by the United States. Section 4 of Chapter 5, Acts of the Legislature, 1917, Second Extraordinary Session, and Section 5 of Chapter 20, Acts of the Legislature, 1881, Regular Session, not the subsequent enactment of Sections 3 and 4 of Chapter 1 of the Code of 1931, govern and control the nature and the extent of the jurisdiction of the United States over the Naval Reservation on which the defendant Londeree resided when he announced his candidacy for the Democratic nomination for the office of mayor of the City of South Charleston. This is necessarily so dispite the apparent and clearly erroneous view of the majority that, because the Legislature, by the subsequent enactment of Section 3 of Chapter 1, Code, 1931, reserved concurrent jurisdiction over land acquired by the United States, this State retained or in some mysterious and unexplained manner regained its original political jurisdiction over the Naval Reservation which was purchased by the United States pursuant to the consent given by the Act of 1917.

As previously indicated, the nature and the extent of the jurisdiction acquired by the United States over land within a State purchased by the United States pursuant to consent to such acquisition given by a statute of the State which reserved only the right to execute civil and criminal process upon the land acquired by the United States, have been frequently considered by recognized text- writers and appellate courts in many other jurisdictions.

More than a century ago the illustrious Joseph Storey, then an Associate Justice of the Supreme Court of the United States, in his Commentaries on the Constitution, published in 1833, Volume II, Section 1227, 5th Edition, in discussing the civil and political rights of persons who *774reside upon military reservations acquired by the United States, under Clause 17, Section 8, Article I, of the Constitution of the United States, with the consent of the State in which such reservations are situated, used this language: “It follows from this review of the clause, that the States cannot take cognizance of any acts done in the ceded places after the cession; and, on the other hand, the inhabitants of those places cease to be inhabitants of the State, and can no longer exercise any civil or political rights under the laws of the State.” The same eminent jurist, at circuit, in United States v. Cornell, 2 Mason 60, Fed. Cas. No. 14,867, decided in 1819, held that a State which consented to the purchase by the United States of land within it for a fort had no jurisdiction of an offense there subsequently committed, and in the opinion said: “The Constitution of the United States declares that Congress shall have power to exercise ‘exclusive legislation’ in all ‘cases whatsoever’ 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, dockyards, and other needful buildings. When therefore a purchase of land for any of these purposes is made by the national government, and the State Legislature has given its consent to the purchase, the land so purchased by the very terms of the constitution ipso facto falls within the exclusive legislation of Congress, and the State jurisdiction is completely ousted. This is the necessary result, for exclusive jurisdiction is the attendant upon exclusive legislation; and the consent of the State legislature is by the very terms of the constitution, by which all the states are bound, and to which all are parties, a virtual surrender and cession of its sovereignty over the place. Nor is there anything novel in this construction. * * # JJ

Chancellor Kent, in his Commentaries, first published in 1826, Volume 1, Lecture 19, Sections 429, 430, 431, Fourteenth Edition, pages 574 to 578, with respect to the operation of Clause 17, Section 8, Article I, of the Constitution *775of the United States, entertained the same view as that held by Justice Storey and expressed it in these words:

“The state governments may likewise lose all jurisdiction over places purchased by Congress, by the consent of the legislature of .the state, for the erection of forts, dock-yards, light-houses, hospitals, military academies, and other needful buildings. The question which has arisen on the subject was as to the effect of the proviso or reservation, usually annexed to the consent of the state, that all civil and criminal process, issued under the authority of the state, might be executed on the lands so ceded, in like manner as if the cession had not been made. This point was much discussed in the Circuit Court of the United States in Rhode Island, in the case of The United States v. Cornell. It was held that a purchase of lands within the jurisdiction of a state, with the consent of the state, for the national purposes contemplated by the Constitution, did, ipso facto, by the very terms of the Constitution, fall within the exclusive legislation of Congress, and that the state jurisdiction was completely ousted. * * *. The courts of the United States have sole and exclusive jurisdiction over an offense committed within a ceded place, notwithstanding the ordinary reservation of the right to execute civil and criminal process of the state. That was no reservation of any sovereignty or jurisdiction. * * *.

“It follows, as a consequence, from this doctrine of the federal courts, that state courts cannot take cognizance of any offences committed within such ceded districts; and, on the other hand, that the inhabitants of such places cannot exercise any civil or political privileges under the laws of the state, because they are not bound by those laws. This has been so decided in the state courts. * *

In 18 Am. Jur., Elections, Section 66, the text contains these statements: “Residence in a military reservation of the Federal Government will not give one a right to vote at a state election held in the county where the reservation is located. Similarly, where the land upon which an *776asylum or other institution is erected has been ceded to the United States, the inmates thereof are denied the right of suffrage upon the ground that they lose their status as citizens of the state and can no longer exercise any civil or political rights under its laws.” See also 9 R. C. L., Elections, Section 49.

In 29 C. J. S., Elections, Section 25, the statement is: “Since land which has been ceded by a state to the United States for the use of some department of the general government, without any reservation of jurisdiction except the right to serve civil and criminal process thereon, ceases to be a part of the state, * * *, such land ordinarily cannot become a voting residence in the state in which it is situated, until it is receded to the state by congress.”

In McCrary on Elections, 4th Edition, Section 89, the author uses this language: “Where a State has ceded a given tract of land to the United States for a navy yard, arsenal or the like, and where there is no reservation of jurisdiction to the State other than the right to serve civil and criminal process on such lands, persons who reside upon such lands do not acquire any elective franchise as inhabitants of such State.”

In Paine on Elections, Section 62, the text contains this statement: “Persons who reside upon land ceded by a state to the United States, as the site of an arsenal or navy yard, without reservation of jurisdiction beyond the right to serve civil and criminal process thereon, are not entitled to vote as inhabitants of the state.”

In the early but well considered and frequently cited case of Commonwealth v. Clary, 8 Mass. 72, decided in 1811, involving the question of jurisdiction of an offense committed on land in the town of Springfield, in the State of Massachusetts, purchased by the United States with the consent of the State for use in erecting arsenals, with the reservation that civil and criminal process could be served upon the land by officers of the State, the Supreme Judicial Court of Massachusetts held that the State could not take cognizance of such offense. In the opinion the court *777said:. “* * * .the territory, on which the offence, charged is agreed to have been committed, is the territory of the United States, over which congress have the exclusive power of legislation. The assent of the commonwealth to the purchase of this territory by the United States, had this condition annexed to it: — that civil and criminal process might be served therein by the officers of the commonwealth. This condition was made with a view to prevent the territory from becoming a sanctuary for debtors and criminals; and from the subsequent assent of the United States to the said condition, evidenced by their making the purchase, it results that the officers of the commonwealth, in executing such process, act under the authority of the United States. No offences committed within that territory, are committed against the laws of this commonwealth; nor can such offences be punishable by the courts of the commonwealth, unless the congress of the United States should give to the said courts jurisdiction thereof.”

In the leading case of Fort Leavenworth Railroad Company v. Lowe, 114 U. S. 525, 5 S. Ct. 995, 29 L. ed. 264, decided in 1885, cited but not followed in the majority opinion, the Supreme Court of the United States declared that when the United States acquired land within a State by purchase, with the consent of the Legislature of the State, for the erection of forts, magazines, arsenals, dockyards and other needful buildings, the Constitution of the United States confers exclusive jurisdiction upon the United States over the land so acquired. The land there involved was not acquired by purchase and the act of the Kansas Legislature ceding jurisdiction to the United States reserved to the State the right “to tax railroad, bridge, and other corporations, their franchises and property,” on the Fort Leavenworth Military Reservation. The court held that the terms of the act ceding jurisdiction governed the extent of the jurisdiction acquired by the United States and upheld the tax imposed by the State of Kansas; but in the opinion prepared by Justice Field the court used this language:

*778“When the title is acquired by purchase by consent of the Legislatures of the States, the federal jurisdiction is exclusive of all State authority. This follows from the declaration of the Constitution that Congress shall have ‘like authority’ over such places as it has over the district which is the seat of government; that is, the power of ‘exclusive legislation in all cases whatsoever.’ Broader or clearer language could not be used to exclude all other authority than that of Congress; and that no other authority can be exercised over them has been the uniform opinion of Federal and State tribunals, and of the Attorneys General.

“The reservation which has usually accompanied the consent of the States that civil and criminal process of the State courts may be sérved in the places purchased, is not considered as interfering in any respect with the supremacy of the United States over them; but is admitted to prevent them from becoming an asylum for fugitives from justice.” After citing earlier authorities the Court also said: “These authorities are sufficient to support the proposition which follows naturally from the language of the Constitution, that no other legislative power than that of Congress can be exercised over lands within a State purchased by the United States with her consent for one of the purposes designated; and that such consent under the Constitution operates to exclude all other legislative authority.”

The Fort Leavenworth Railroad Company case has never been overruled or departed from by the Supreme Court of the United States despite its characterization in the majority opinion as one of the “older” cases but has been cited and followed by numerous state courts and by the Supreme Court of the United States in many of its subsequent decisions, particularly the cases of Surplus Trading Company v. Cook, 281 U. S. 647, 50 S. Ct. 455, 74 L. ed. 1091, decided in 1930, and United States v. Unzeuta, 281 U. S. 138, 50 S. Ct. 284, 74 L. ed. 761, also decided in 1930, both of which are cited, but neither of which is followed, in the majority opinion. In Surplus Trading *779Company v. Cook, 281 U. S. 647, 50 S. Ct. 455, 74 L. ed. 1091, the Supreme Court of the United States held that the jurisdiction of the United States over lands within a State purchased by the United States with the consent of the State, for the erection of forts, magazines, arsenals, dockyards and other needful buildings, is exclusive; and in discussing that point in the opinion made this statement: “The question is not an open one. It long has been settled that, where lands for such a purpose are purchased by the United States with the consent of the state Legislature, the jurisdiction theretofore residing in the state passes, in virtue of the constitutional provision, to the United States, thereby making the jurisdiction of the latter the sole jurisdiction.” In United States v. Unzeuta, 281 U. S. 138, 50 S. Ct. 284, 74 L. ed. 761, the same court held that the jurisdiction of the United States over lands purchased for such use “is exclusive of all State authority.” See also Arlington Hotel Company v. Fant, 278 U. S. 439, 49 S. Ct. 227, 73 L. ed. 447, decided in 1929, the opinion in which was prepared by Chief Justice Taft. In that case, which is also cited but not followed in the majority opinion, the principle that the jurisdiction of the United States over land within a State, acquired by the consent of the State, is exclusive of all state authority was recognized and applied.

Other decisions of the Supreme Court of the United States, subsequent to the case of Fort Leavenworth Railroad Company v. Lowe, 114 U. S. 525, 5 S. Ct. 995, 29 L. ed. 264, which recognize and approve the principle of that case that when the United States acquires land within a State by purchase, with the consent of the Legislature of the State, accompanied with a reservation by the State of the right to execute civil and criminal process upon the land so acquired, the jurisdiction of the United States is exclusive of all State authority, are Standard Oil Company v. People of State of California, 291 U. S. 242, 54 S. Ct. 381, 78 L. ed. 775, decided in 1934, and Johnson v. Yellow Cab Transit Company, 321 U. S. 383, 64 S. Ct. 622, 88 L. ed. 814, decided in 1944. In the Standard Oil Com*780pany case the court held that the sale of gasoline on the Presidio Military Reservation, was not subject to tax by the State and said: “A state cannot legislate effectively concerning matters beyond her jurisdiction and within territory subject only to control by the United States.”; and in the Johnson case the court held that the seizure at Oklahoma City, Oklahoma, by state officers, of a shipment of 225 cases of wines and liquors from East Saint Louis, in the State of Illinois, to an officers club at Fort Sill, in the State of Oklahoma, was illegal and ordered its return on the ground that the jurisdiction of the United States over the Fort Sill Military Reservation in that State, which had been ceded to the United States by the Legislature of the State with reservation of the right of the State to serve civil and criminal process, was exclusive. In James v. Dravo Contracting Company, 302 U. S. 134, 58 S. Ct. 208, 82 L. ed. 155, 114 A. L. R. 318, cited and discussed in the majority opinion, the Supreme Court of the United States cites the Fort Leavenworth Railroad Company case and does not depart from its holding.

Among the numerous decisions of appellate courts in many States which recognize or apply the same principle of exclusive jurisdiction of the United States over territory acquired by the consent of the State in which it is located are these cases: Arledge v. Mabry, 52 N. M. 303, 197 P. 2d 884, decided in 1948; Kiker v. City of Philadelphia, 346 Pa. 624, 31 A. 2d 289, decided in 1943, cited but not followed in the majority opinion; People v. Hillman, 246 N. Y. 467, 159 N. E. 400, decided in 1927; Farley v. Scherno, 208 N. Y. 269, 101 N. E. 891, 47 L. R. A., N. S., 1031, decided in 1913; Commonwealth v. King, 252 Ky. 699, 68 S. W. 2d 45, decided in 1934; Webb v. J. G. White Engineering Corporation, 204 Ala. 429, 85 So. 729, decided in 1920; Concessions Company v. Morris, 109 Wash. 46, 186 P. 655, decided in 1919; State ex rel. Jones v. Mack, 23 Nev. 359, 47 P. 763, 62 Am. St. Rep. 811, decided in 1897; Willis v. Oscar Daniels Company, 200 Mich. 19, 166 N. W. 496, decided in 1918; Anderson v. Chicago and Northwestern Railroad Company, 102 Neb. 578, 168 N. W. 196, decided in *7811918; Bank of Phoebus v. Byrum, 110 Va. 708, 67 S. E. 349, 27 L. R. A., N. S., 436, 135 Am. St. Rep. 953, decided in 1910; Foley v. Shriver, 81 Va. 568, decided in 1886; State v. Morris, 76 N. J. Law. 222, 68 A. 1103, decided in 1908 and Mitchell v. Tibbetts, 17 Pick. (Mass.) 298, decided in 1836.

In Kiker v. City of Philadelphia, 346 Pa. 624, 31 A. 2d 289, involving the question of the right of the city to impose a tax upon income received by a nonresident of Pennsylvania from his employment by the United States at the Philadelphia Navy Yard, and in which it was held that the city could impose such tax by virtue of an Act of Congress which receded that authority to the state, the opinion contains these statements:

“It is clear that since this Commonwealth granted to the United States government exclusive jurisdiction, without qualification or restriction, save as to the service of civil and criminal process and as to limitation upon the duration of the cession, the City of Philadelphia could not lawfully impose a tax upon income received by a nonresident from transactions occurring or services performed in the Federal Area of League Island (Standard Oil Company v. California, 291 U. S. 242), unless, of course, Congress can grant such consent. See United States v. City of Buffalo, 54 F. (2d) 471. It was originally supposed that a State, in granting consent to the Federal government to purchase territory upon which to erect forts, magazines, arsenals, dock-yards and other needful buildings, could not constitutionally qualify its consent, and that jurisdiction, under such circumstances, had to be exclusively in the United States government, on account of the provisions of Article I, Section 8, Clause 17 of the Constitution of the United States: United States v. Cornell, 2 Mason’s Reports (U. S. C. C.) 60; Fort Leavenworth R. R. Co. v. Lowe, 114 U. S. 525. However, it is now well settled that in granting consent to the Federal government a State can reserve to itself such jurisdiction (e. g. the right to impose taxes in the area in question) as will not interfere with the enjoyment by the government of *782the United States of the property for the uses and purposes for which it was obtained: James v. Dravo Contracting Company, 302 U. S. 134. * * *.

“It follows, therefore, that the Commonwealth of Pennsylvania, when it consented to the purchase of League Island by the National government and ceded jurisdiction over it, could have reserved to itself the right to tax in such area, even though the territory was acquired for use as a dock-yard, just as a number of States have done under similar circumstances with respect to land within their respective geographical limits. There can be no logical objection on constitutional grounds if the same result is accomplished by a recession to the State of the right to tax, should Congress see fit by this means to promote local efficiency, as it appears to us to have done in passing Public Act No. 819. Similar retrocessions to the States of the Union are not unusual. While any cession, or recession, of jurisdiction by one sovereignty to another requires an acceptance in order to render it effective (Yellowstone Park Transp. Co. v. Gallatin County, 31 F. (2d) 644); such acceptance will be presumed in the absence of a contrary intent (Mason Co. v. Tax Common., supra). No such contrary intent appears anywhere in the record in the instant case. ‘The States of the Union and the National Government may make mutually satisfactory arrangements as to jurisdiction of territory within their borders and thus in a most effective way, cooperatively adjust problems flowing from our dual system of government’: Collins v. Yosemite Park Co., 304 U. S. 518, 528”.

In the Kiker case the court recognized the principle of exclusive jurisdiction in the United States resulting from the purchase of the territory by the United States with the consent of the State with no reservation of the power to tax in that area but held that, by virtue of the Act of Congress of October 9, 1940, Public Act No. 819, 54 Stat. 1059, 4 U. S. C. A., Section 14, commonly known as the Buck Act, which provided by Section 2 that persons living or receiving income in a Federal area should not be re*783lieved' from liability to pay any income tax levied by any State or any duly constituted State taxing authority having jurisdiction to levy such a tax, by reason of residence or employment in the Federal area, the State had regained from the United States its power to impose the tax the collection of which the plaintiff sought to enjoin.

In the opinion in Foley v. Shriver, 81 Va. 568, the Supreme Court of Virginia, after citing Fort Leavenworth Railroad Company v. Lowe, 114 U. S. 525, 5 S. Ct. 995, 29 L. ed. 264; United States v. Cornell, 2 Mason 60, Fed. Cas. No. 14,867; Commonwealth v. Clary, 8 Mass. 72; Mitchell v. Tibbetts, 17 Pick. (Mass.) 298, the opinion of the Justices of the Supreme Judicial Court of Massachusetts, 1 Metc. 580, and Sinks v. Reese, 19 Ohio St. 306, 2 Am. Rep. 397, uses this language: “From the foregoing cases it is clear that no other legislative power than that of congress can be exercised over lands within a State purchased by the United States with the consent of the State for one of the purposes designated and that such consent, under the constitution, operates to exclude all other legislative authority. If the United States has the right of exclusive legislation over the ceded lands, they also have the exclusive jurisdiction. The right of exclusive legislation gives exclusive jurisdiction. United States v. Cornell, supra, People v. Godfrey, 17 Johns. 225; 16 Opinions Attorney-General, 592. In this case, the State legislature having given the required consent, and the United States having purchased the land in question, the United States have acquired, under the Federal Constitution, exclusive jurisdiction over the ceded lands, and they are no longer a part of the State of Virginia and are not subject to the jurisdiction of the State courts. Persons residing there are not citizens of Virginia; the property situated there is not subject to the control or disposal of any State court, and the circuit court of Elizabeth City county is without jurisdiction within the said territory. The reservation in the act of cession of concurrent jurisdiction with the United States over the same piece or parcel of land, so that the courts, magistrates and officers of the State may *784take such cognizance, execute such process, and discharge such other legal functions within the same as may not be incompatible with the consent hereby given, is subject to the provisions of the first article and eighth section of the Federal Constitution — that is, as may not be incompatible with the exclusive jurisdiction of the United States, and which, may operate to authorize the service by the officers of the State of the civil and criminal process of the State courts, with reference to acts done within the acknowledged territory of the State outside of the ceded lands.”

The specific question here under consideration with respect to the right of elective franchise of persons who reside upon land within a State purchased by the United States, with the consent of the Legislature of the State, for the erection of forts, magazines, arsenals, dockyards and other needful buildings, accompanied by the reservation by the State of the right to execute civil and criminal process in the area so purchased has been considered by “an unruffled current of authority” in several States and in each instance the claimed right to exercise such franchise by persons permanently residing in the territory so purchased by the United States has been denied. Miller v. Hickory Groves School Board, District No. 4, 162 Kan. 528, 178 P. 2d 214, decided in 1947; State ex rel. Parker v. Corcoran, 155 Kan. 714, 128 P. 2d 999, 142 A. L. R. 423, decided in 1942; Herken v. Glynn, 151 Kan. 855, 101 P. 2d 946, decided in 1940; State ex rel. Lyle v. Willett, 117 Tenn. 334, 97 S. W. 299, decided in 1906; McMahon v. Polk, 10 S. D. 296, 73 N. W. 77, 47 L. R. A. 830, decided in 1897; In re Town of Highlands, 48 N. Y. 795, 22 N. Y. Supp. 137, decided in 1892; and Sinks v. Reese, 19 Ohio St. 306, 2 Am. Rep. 397, decided in 1869. See also Arledge v. Mabry, 52 N. M. 303, 197 P. 2d 884, in which the Court, referring to the question of the exercise of the elective franchise by persons residing upon territory acquired by the United States in the manner provided by the Constitution of the United States, used this language: “However, there are several precedents in the books where that issue was *785involved. Without exception, under circumstances similar to those here present, courts have denied the claimed right upon the ground of want of residence within the state by the person asserting it.”

In McMahon v. Polk, 10 S. D. 296, 73 N. W. 77, 47 L. R. A. 830, also cited but not followed in the majority opinion, the Supreme Court of South Dakota held that a person, not in the army or the navy, can not, by long and continuous residence within the boundaries of a reservation jurisdiction over which is ceded to the United States, acquire the right to vote at a state election in the county in which the reservation is situated; and in the opinion said: “The vote of R. W. Wells, cast at Sturgis precinct for appellant, was rejected by the court as illegal and void upon the ground that said Wells was a nonresident of the precinct, having his place of abode within the military reservation of Ft. Meade; and to this point our attention is directed by the first assignment of error. By the fifth subdivision of Section 18, Art. 26, of the Constitution, jurisdiction over the military reservation of Ft. Meade is surrendered to the United States without reservation other than the right to serve legal process in certain cases; and the question presented by the record is whether a person in no way connected with the army or navy may, by long and continuous residence within the boundaries of the reservation thus ceded, acquire the right to vote at an election held in the county where the same is situated, pursuant to the law of the state. In his Commentaries on the Constitution (Sec. 1227), Judge Story, in treating the eighth section of the first article of the Constitution authorizing congress to exercise exclusive legislative power over military reservations obtained by the consent of the state in which the same are situated, says: ‘The inhabitants of those places cease to be inhabitants of the state, and can no longer exercise any civil or political rights under the laws of the state.’ The doctrine resting upon and sustained by an unruffled current of authority seems to be that all political powers and jurisdiction over a military reservation, not expressly retained by the state, *786are surrendered absolutely to the general Government by a voluntary transfer of lands for the exclusive use of the army or navy; and consequently a person residing thereon acquires none of the constitutional qualifications of an elector.”

In the frequently cited case of Sinks v. Reese, 19 Ohio St. 306, 2 Am. Rep. 397, involving the question whether inmates of a National A|sylum for Disabled Volunteer Soldiers, established by act of Congress upon land within the State of Ohio acquired by the United States with the consent of the Legislature of the State, were entitled to vote at an election held in the county in which the asylum was situated, the Supreme Court of Ohio held that the asylum was a needful building within the constitutional provision permitting the United States to acquire land, that the United States had exclusive jurisdiction over the land, and that the inmates of the asylum were not residents of the State and for that reason were not entitled to vote at the election. In the opinion, with respect to the act of the Legislature consenting to the establishment of the asylum, the court said: “This act of the State Legislature, consenting to the establishment of the asylum within her borders, and ceding ‘jurisdiction of the lands and appurtenances’ of the asylum to the United States, under the operation of the clauses of the eighth section of the first article of the Constitution of the United States above referred to, fixes the exclusive jurisdiction of the general government over this institution, its lands and its inmates, ‘in all cases whatsoever,’ except as to the execution of process issuing under State authority.” The opinion also contains these expressions: “This leads us to consider what is the legal status of persons who become residents upon the grounds, and within the limits of the institution thus within the exclusive jurisdiction of the United States; and how does it affect their claim to exercise the elective franchise in Ohio, under its constitution and laws? In passing on these questions, there is little need of speculative reasoning; for they have been in effect settled by repeated decisions of courts of high and *787conclusive authority. By becoming a resident inmate of the asylum, a person though up to that time he may have been a citizen and resident of Ohio, ceases to be such; he is relieved from any obligation to' contribute to her revenues, and is subject to none of the burdens which she imposes upon her citizens. He becomes subject to the exclusive jurisdiction of another power, as foreign to Ohio as is the State of Indiana or Kentucky, or the District of Columbia. The constitution of Ohio requires that electors shall be residents of the State; but under the provisions of the Constitution of the United States, and by the consent and act of cession of the legislature of this State, the grounds and buildings of this asylum have been detached and set off from the State of Ohio, and ceded to another government, and placed under its exclusive jurisdiction for an indefinite period. We are unanimously of the opinion that such is the law, and with it we have no quarrel; for there is something in itself unreasonable that men should be permitted to participate in the government of a community, and in the imposition of charges upon it, in whose interests they have no stake, and from whose burdens and obligations they are exempt.”

To the same effect as the Sinks case is the holding of the Supreme Court of Tennessee in State ex rel. Lyle v. Willett, 117 Tenn. 334, 97 S. W. 299, in which that court said: “If, as we have held, and as controlling authorities elsewhere hold, the United States has exclusive jurisdiction over the land on which the Soldiers’ Home in question was erected, then the residents in that home are nonresidents of the State of Tennessee, and cannot fall within the requirements for legal voters laid down by our constitution.”

In re Town of Highlands, 48 N. Y. 795, 22 N. Y. Supp. 137, the Supreme Court of New York held that, as the State of New York had ceded to the United States the territory comprising the West Point reservation and reserved no jurisdiction except the right to execute process in the ceded territory, that territory was not subject to *788the jurisdiction of the State and was not a part of the State and that persons having no other qualifications as residents than a residence in the ceded territory were not residents of the State and were not entitled to vote.

In Herken v. Glynn, 151 Kan. 855, 101 P. 2d 946, the opinion states that: “No case has been found where it has been held that residents on lands ceded by a state to the United States retained or acquired a right to vote as residents of the ceding state.” The quoted passage is presently pertinent for it is significant that the majority opinion neither cites nor refers to an opinion in any case by any appellate court of last resort in any jurisdiction which holds that a permanent resident upon land purchased by the United States, with the consent of the State in which it is situated, accompanied merely with a reservation by the State of the right to serve civil and criminal process in the purchased territory, has the right to vote at any election held under the laws of such State. Though the case of Arapajolu v. McMenamin, 113 Cal. App. 2d 824, 249 P. 2d 318, 34 A. L. R. 2d 1185, decided by a California District Court of Appeal in 1952, cited in the majority opinion, holds that residents of a United States military reservation were entitled to vote at elections conducted under the laws of the State of California, the opinion does not disclose the manner in which the area was acquired by the United States or what reservations accompanied the acquisition of the territory by the United States, and the holding of the district appellate court can not be said to be final or persuasive authority applicable to residents of the Naval Reservation here involved which was purchased by the United States with the consent of this State without reservation of any jurisdiction or authority except the right to execute civil and criminal process in the purchased area.

From the foregoing authorities it is clear that when the United States purchased the Naval Reservation by virtue of the consent given for that purpose by the Legislature of this State by Section 4 of Chapter 5, Acts of 1917, Second Extraordinary Session, and the Legislature *789had reserved by Section 5 of the Act of 1881 only the right to execute civil and criminal process within the limits of the land so acquired, and the United States recognized that consent by making such purchase and accepting deeds for the land, the United States became vested with exclusive jurisdiction over the Naval Reservation to the exclusion “of all State Authority”, United States v. Unzeuta, 281 U. S. 138, 50 S. Ct. 284, 74 L. ed. 761; that though such grant or cession of jurisdiction by this State to the United States must be accepted by the United States to render it effective, acceptance is presumed in the absence of evidence of a contrary intent, Kiker v. City of Philadelphia, 346 Pa. 624, 31 A. 2d 289; Silas Mason Company v. Tax Commission of State of Washington, 302 U. S. 186, 58 S. Ct. 233, 82 L. ed. 187; that in order to regain any portion of the jurisdiction so transferred by this State to the United States there must be a recession by the United States of such jurisdiction to the State, Kiker v. City of Philadelphia, 346 Pa. 624, 31 A. 2d 289; and that this State, in consenting to the acquisition of land within its borders by the United States, could have reserved concurrent jurisdiction or jurisdiction with respect to particular matters in the territory so acquired which would not interfere with the use for which the land was acquired by the United States, James v. Dravo Contracting Company, 302 U. S. 134, 58 S. Ct. 208, 82 L. ed. 155, 114 A. L. R. 318.

Proper application of the foregoing firmly established principles of law impels the conclusion that this State by the enactment of Section 4, Chapter 5, Acts of the Legislature, 1917, Second Extraordinary Session, consenting to the purchase of the area used by the United States for the Naval Reservation, with only a prior reservation of the right to serve civil and criminal process upon the land so purchased, resulted in the acquisition by the United States of exclusive jurisdiction over the purchased territory under Clause 17, Section 8, Article I of the Federal Constitution; that this State could have effectively reserved, by the Act of 1917, as it did by the later statute, Section 3, Chapter 1, Code, 1931, concurrent *790jurisdiction over any territory purchased with its consent by the United States but did not reserve such concurrent jurisdiction over any territory acquired by the United States with the consent conferred by the Act of 1917; that as to the Naval Reservation acquired by the United States with the consent conferred by the Act of 1917, this State could not, by its unilateral subsequent action in enacting Sections 3 and 4, Chapter 1, Code, 1931, regain its civil and political jurisdiction over the Naval Reservation which had passed to the United States in the absence of any recession of such jurisdiction by the United States; that no jurisdiction of the United States over the Naval Reservation has been receded by the United States to this State except the right to impose taxes to the extent permitted by the Act of Congress of October 9, 1940, Public Act No. 819, 54 Stat. 1059, 4 U. S. C. A., Section 14, commonly known as the Buck Act and such other particular rights, which do not involve or affect the right of suffrage, as may have been receded to this State by other Acts of Congress'; that in all other respects the exclusive jurisdiction of the United States over the Naval Reservation continues in force and effect; and that the defendant Londeree, as well as “the large ever growing number of individuals” mentioned in the majority opinion, by voluntarily becoming a permanent resident of the Naval Reservation necessarily acquired the status of a nonresident of this State and, as such, relinquished his right to vote at any election conducted under the laws of this State. Not being entitled to vote at any such election when he filed his certificate as a candidate for the Democratic nomination for mayor of the City of South Charleston and not having acquired the status of a resident of this State entitling him to vote at the municipal election to be held on June 6, 1954, under Article IV, Section 4, of the Constitution of this State and Section 9 of the city charter, he is not eligible to be elected to, or to hold, the office of mayor of that municipality.

The confusion in thé reasoning and the fallacy in the conclusion reached in the majority opinion result from *791the labored effort of the majority to distort the clear meaning and effect of Section 4 of Chapter 5, Acts of the Legislature, 1917, Second Extraordinary Session, which is the only applicable statute here involved, and to substitute for it the later inapplicable provisions of Sections 3 of Chapter 1, Code, 1931, notwithstanding the provision in Section 3 of that statute that “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.”

James v. Dravo Contracting Company, 302 U. S. 134, 58 S. Ct. 208, 82 L. ed. 155, 114 A. L. R. 318, decided December 6, 1937, and Carnegie-lllinois Steel Corporation v. Alderson, 127 W. Va. 807, 34 S. E. 2d 737, decided in 1945, certiorari denied 326 U. S. 764, 66 S. Ct. 146, 90 L. ed. 460, cited and discussed in the majority opinion, have no present application except to the extent that the opinion in the James case states that “Clause 17 governs those cases where the United States acquires lands with the consent of the Legislature of the State for the purpose there described.”; and to that extent that case supports my contention that the consent given by the Act of 1917 to the purchase of the land comprising the Naval Reservation conferred exclusive jurisdiction over it upon the United States when the land was acquired by such purchase. In Silas Mason Company v. Tax Commission of State of Washington, 302 U. S. 186, 58 S. Ct. 233, 82 L. ed. 187, decided December 6, 1937, also cited and discussed in the majority opinion, the facts and the provisions of the Acts of Congress and of the Statute of the State of Washington involved in that case, the specific and limited purposes for which the territory in question was acquired by the United States, which related chiefly to the improvement of the rivers and the harbors of that State and the development of irrigation and industrial power, and the clearly disclosed intent of the United States and of the State of Washington, as determined by the Supreme Court of that State, that the jurisdiction of the United States over the territory acquired should not be exclusive, *792distinguished that case from, and render its holding inapplicable to, the case at bar. The opinion in that case, however, with reference to the cession of jurisdiction by a State to the United States and its acceptance by the United States, contains the statement, quoted in the majority opinion, that such “Acceptance may be presumed in the absence of evidence of a contrary intent, * *

As the majority opinion concedes, the land involved in the James case was obtained by the United States under the later statute of 1931 by which this State reserved concurrent jurisdiction over the land acquired by the United States, and the Court in upholding a tax imposed by a statute of this State, upon the gross income derived from business and other activities conducted within its borders based its holding upon the reservation by the State of concurrent jurisdiction over the land in question and sustained the validity of the reservation of such jurisdiction and its effectiveness for the purpose of permitting the imposition of the tax upon the income derived from business and other activities within the territorial limits of this State. In the James case, however, the prior Act of 1917, the only applicable statute involved in this proceeding, was not considered, interpreted, applied or even mentioned by the Court.

In the Carnegie-Illinois Steel Corporation case, which involved the validity of a state occupational tax upon certain business activities conducted upon this same South Charleston Naval Reservation, the tax was upheld by virtue of the recession by the United States under the Buck Act, Public Act No. 819, 54 Stat. 1059, 4 U. S. C. A., Section 14, to this State, of the jurisdiction to impose the tax. On that point this Court held, in point 1 of the syllabus, that: “The Act of Congress officially referred to as Public Act No. 819 deprives persons engaged in business the operations of which are located upon a reservation owned by the United States Government of immunity from the provisions of a statute of the State of West Virginia imposing an occupational tax, the claim of immunity *793resting upon the lack of territorial jurisdiction on the part of the State.”

The passage of the Apts of Congress mentioned in the majority opinion authorizing state action relating to the respective subjects dealt with in those statutes is indicative of the long standing general recognition of the principle that when the United States acquires, by purchase or cession, territory within the borders of a State for any of the purposes designated in Clause 17, Section 8, Article I of the Federal Constitution, with the consent of the State without reservation of jurisdiction by the State except the right to execute, civil and criminal process by the State in the territory so acquired by the United States, the jurisdiction of the United States over such territory is exclusive. If this were not so there would have been no reason or necessity for the enactment of any of the Federal statutes referred to in the majority opinion. The enactment of such legislation is necessarily based on the assumption that the particular jurisdiction ceded in each instance was vested in and possessed by the United States at and until the time of its recession to the ceding State by the various Acts of Congress.

The statement in the majority opinion to the effect that as the defendant Londeree would be subject to a state tax permitted by the Buck Act, if he is not entitled to vote, he would be subjected to taxation without representation, is entirely inapplicable to his status as a resident of the Naval Reservation who, having voluntarily assumed that status, is not entitled to vote at an election held under the laws of this State. The principle or the maxim of taxation without representation does not apply to the defendant Londeree as a permanent resident of the Naval Reservation just as it does not apply to permanent residents of the District of Columbia who, as a matter of common knowledge, are subject to many types of taxation, but who, as such residents, do not have the right to exercise the elective franchise in the District or in any State of the Union of which they may have been former resi*794dents but which status they have voluntarily relinquished by becoming permanent residents of the District. There are also many aliens residing in this State who do not have the right to vote at elections conducted under its laws but who are subject to various taxes, among which are property, license and excise taxes. I know of no instance in which it has been seriously asserted, as to a permanent resident of the District of Columbia or an alien who resides in this State, that any such person is subject to taxation without representation, or that any tribunal has so held in any proceeding.

The statement of the majority with respect to the loss by the defendant Londeree and “a large number of citizens” of the right to vote at elections held in this State by reason of their permanent residence upon the Naval Reservation is not of important or controlling force in the proper determination of the jurisdictional questions presented in this proceeding. If the status of the defendant Londeree, at the time he filed his certificate as a candidate for nomination for the office of mayor was that of a permanent resident of the Naval Reservation, that status was not enforced or placed upon him by compulsion of the United States in purchasing the land on which the Naval Reservation is located or of this State in consenting to such purchase by the Act of 1917 without reservation of jurisdiction with respect to elections under its laws. That status did not arise by virtue of the acquisition of exclusive jurisdiction by the United States over the Naval Reservation but in fact resulted from the free act of the defendant Londeree in becoming a resident of the reservation by voluntarily making it his permanent place of abode. Neither he nor any other person was required by any constitutional or statutory provision to reside upon the reservation. His permanent residence in that area was his own voluntary act; and it is not the province of this Court to disregard or nullify the well established legal effect of the free choice of the defendant Londeree in selecting the Naval Reservation as his permanent place of residence.

*795I agree that mandamus is a proper proceeding to determine the questions presented, and I concur in the principles stated in points 1 and 2 of the syllabus; but, for the reasons stated and under the numerous authorities cited, quoted from and discussed in this opinion, I dissent from the statements contained in points 3, 4 and 5 of the syllabus and the decision of the majority in denying the relief sought. I would, therefore, have awarded the writ as prayed for in this proceeding.