concurring in part; .dissenting in part. I concur with the result reached by the majority because the City of Barling’s attempted annexations of property in Fort Chaffee were void ad initio. FCRA raised the issue of whether Barfing had the power to annex a large portion of Fort Chaffee while it was still a federal enclave. If it did not, then the annexations were void ab initio. The majority holds, as did the trial court below, that the federal government permits a city to annex a portion of a federal enclave. However, the court asked and answered the wrong question. The issue here is whether Arkansas law empowered Barfing to annex a portion of a federal enclave, not whether the federal government permitted it. The majority’s decision today, which upholds Barling’s annexation of almost 14,000 acres in the Fort Chaffee federal enclave, opens the door for municipal land grabs of property ceded to the federal government.
Three United States Supreme Court cases frame the issue of the type of power that a state and its political subdivisions may exercise over a federal enclave. In Arlington Hotel Co. v. Fant, 278 U.S. 439 (1929) (Fant III), the Supreme Court upheld our holding in Arlington Hotel Co. v. Fant, 176 Ark. 613, 4 S.W.2d 7 (1928) (Fant II), that when Arkansas cedes exclusive jurisdiction over to the federal government, it takes “away the authority of the State Government to legislate over the territory ceded to the General Government.” Id. at 615 (quoting Fant v. Arlington Hotel Co., 170 Ark. 440, 280 S.W.20 (1926) (Fant I)). This court also held that the state retained jurisdiction over transient matters (such as civil claims), but not over local matters (such as property), and that the federal enclave continued to be subject to laws in effect at the time the state ceded authority to the federal government. Fant II, supra. The next opinion by the Supreme Court on this issue came in 1953. In Howard v. Commissioners of Sinking Fund of City of Louisville, 344 U.S. 624 (1953), the Court held that a federal enclave was not a state within a state, and that the federal government was not concerned with where a city might draw its boundaries; rather the issue was whether a city’s attempt to exercise authority over the property created friction between the city and the federal government. The third case on point is Paul v. United States, 371 U.S. 245 (1963). The Paul Court cites Fant III with favor for the proposition that “[a] State may not legislate with respect to a federal enclave unless it reserved the right to do so when it gave its consent to the purchase by the United States. ...” Id. at 268. The Paul Court did temper the Fant III view by concluding that regulatory changes that are consistent with state law, as it existed at the time of the cession, are applicable within a federal enclave. Id.
Reading the three cases harmoniously, it is clear that while the federal government does not object to a city annexing a portion of a federal enclave so long as it does not create friction, the power to annex the property is a question of state law, i.e. whether the State reserved that power to itself when it ceded jurisdiction to the federal government. The majority concludes that because the State and its municipal subdivisions had the power to annex property at the time the State ceded jurisdiction, cities continued to have that power. This court and the United States Supreme Court agree that laws in existence at the time of cession continue to be in effect on the federal enclave so long as they are not inconsistent with federal laws and purpose. See Fant I, Fant II, and Fant III, supra. This same proposition was affirmed by the Supreme Court in Howard, supra. Ten years later in Paul, the Supreme Court reaffirmed that laws in effect at the time of cession, and regulations consistent with those laws, remain in effect over a federal enclave, but the State retains the power to legislate over the property only to the extent that the State specifically reserved that legislative power. See Paul v. United States, supra.
Arkansas ceded exclusive jurisdiction over the Fort Chaffee property to the federal government on December 21, 1942, and reserved to itself no legislative authority over the property. This court has previously held that when Arkansas cedes exclusive jurisdiction to the federal government, the state does not retain jurisdiction over local matters, such as property. Fant II, supra. The process of annexation has long been recognized as a municipal legislative function. Gregg v. Hartwick, 292 Ark. 528, 731 S.W.2d 766 (1987); City of Little Rock v. Town of North Little Rock, 79 S.W 785 (1904). It is axiomatic that annexation asserts jurisdiction over property, a local matter. When Barling was incorporated in 1956, it had no powers beyond those granted to it by the General Assembly, the Constitution, or those incidental powers necessary to its statutory powers. Brooks v. City of Benton, 308 Ark. 571, 826 S.W.2d 259 (1992). Because Arkansas retained no legislative authority over the Fort Chaffee property at the time Barling was incorporated in 1956, Barling could not have been granted any power to annex that property. Therefore, Barling’s attempted annexations were void ab initio. Where an annexation is void ab initio, no right can accrue under it. Posey v. Paxton, 201 Ark. 825, 147 S.W.2d 39 (1941).
For the above-stated reasons, I would hold that the trial court was clearly erroneous in concluding that Barling had the legislative authority to annex portions of Fort Chaffee. Thus, I would reverse the trial court on FCRA’s cross-appeal.