46 CONCESSIONS COMPANY v. MORRIS.
Statement of Case. 109 Wash.
[No. 15556. Department One. December 15, 1919.]
CONCESSIONS COMPANY, Appellant, v. THOMAS N. MORRIS
et al. Respondents. «1»
TAXATION 92) - PROPERTY OF UNITED STATES - BUILDINGS AND
FIXTURES ON MILITARY RESERVATION. Buildings erected and
fixtures attached by a licensee at Camp Lewis under a
contract with the commandant that they were to remain in
case the licensee left the premises, belong to the United
States and are not subject to taxation, in view of U. S.
Const., art. l, SS 8, cl. 17, giving Congress exclusive
legislation over places purchased for forts and other
needful buildings by consent of state legislatures, and Rem.
Code, SS 6853, and Laws of 1917, pp. 2, 15, consenting to
the acquisition of lands for military purposes and to the
donation of Camp Lewis for a military reservation, and Rem.
Code, SS 9098, exempting from taxation all property of the
United States.
SAME (21) - SITUS OF PROPERTY - PERSONAL PROPERTY IN
MILITARY RESERVATION. Personal property on the Camp Lewis
military reservation is not in but is without the state of
Washington, within the meaning of Rem. Code, SS 9101,
providing for the taxation of personal property "in" the
state of Washington; and is therefore not subject to state
taxation.
UNITED STATES (1) - JURISDICTION - PROPERTY CEDED FOR
MILITARY RESERVATION - CONDITIONS. The provision for the
issuance of civil and criminal process from state courts
over all tracts embraced in Camp Lewis (Laws of 1917, p. 14,
SS 20), does not make the absolute cession of exclusive
jurisdiction to the Federal government contained in said act
a conditional cession and is not inconsistent with the uses
for which the property was acquired.
SAME. The cession of jurisdiction to the Federal government
of Camp Lewis which was acquired by donation, rather than by
purchase within U. S. Const., art. 1, SS 8, may be
accompanied by such conditions as the state may see fit to
annex, if not inconsistent with the use for which the
property was acquired; and the Federal government acquired
such jurisdiction as was ceded.
Appeal from a judgment of the superior court for
Pierce county, Fletcher, J., entered May 27, 1919, upon
sustaining a demurrer to the complaint, dismissing an
action to enjoin the collection of a tax. Reversed.
«1» Reported in 186 Pac. 655.
CONCESSIONS COMPANY v. MORRIS. 47
Dec. 1919 Opinion Per MACKINTOSH, J.
Revelle & Revelle, for appellant.
William D. Askren, Frank D. Nash, and J. A. Sorley,
for respondents.
MACKINTOSH, J. - The superior court sustained the
respondents' demurrer to appellant's complaint,
which, in substance, alleged that the appellant is a
Washington corporation, with its principal place of
business in Seattle, King county, and that the
respondents are the county of Pierce and its assessor,
treasurer, and sheriff. The appellant has a concession to
operate barber shops at Green Park, which is a portion
of the Federal army post known as Camp Lewis.
This concession was granted by the Camp Lewis
Amusement Company, which holds a license and authority
from the commanding officer at Camp Lewis,
and, by the terms of the concession, the appellant had
the right to construct and operate buildings according
to plans and specifications approved by the commanding
officer, and to pay said commanding officer a location
fee and a privilege tax of ten per cent of the
daily gross receipts of the concession; the concession
further providing that all rights under it might be
terminated by the commanding officer for breach of
its terms or for military reasons; that the appellant
should submit to the commanding officer's auditor its
records and accounts, and should abide by the tariffs,
charges, rates, prices and rules which the commanding
officer may make from time to time. It was further
provided that, if the appellant failed to operate the
concession for five days, the commanding officer could
command the appellant to vacate and, upon such order,
the appellant would have seven days to take from
the buildings his personal property, and during those
seven days the appellant might sell the buildings to
any one else holding a concession approved by the
48 CONCESSIONS COMPANY v. MORRIS.
Opinion Per MACKINTOSH, J. 109 Wash.
commanding officer. If no such sale was made, the
appellant's rights in the buildings terminated. The
concession could not be assigned without the commanding
officer's consent. The complaint then alleges
that the appellant erected the buildings on the military
reservation as provided in the contract; that the
reservation is the property of the United States; that the
buildings could not be removed therefrom; and that
the appellant had only the right of use and occupation;
that, in the buildings, the plaintiff had located personal
property which is not within the jurisdiction of Pierce
county or the state of Washington, but in the exclusive
jurisdiction of the United States government. It is
then alleged that the respondents assessed the buildings,
fixtures and personal property for taxes for the
year 1918, and that the officials of Pierce county are
threatening to sell this property to collect the tax.
The complaint then prays for an injunction against
Pierce county and its officers, and asks that the
assessments be cancelled of record. The respondents, by
demurring, admit the appellant's allegation that the title
to the reservation is in the Federal government, and
that, therefore, the provisions of the act of 1917,
hereinafter referred to, relating to the acquisition of such
title, have been complied with.
This appeal presents for the determination of this
court the question as to whether or not property interests
of the appellant, located on the military reservation
at Camp Lewis, are subject to taxation by the
state as a part of the property within the state, the
appellant claiming that this property, being situated
on a military reservation, is within the jurisdiction of
the United States, and not within the jurisdiction of
the state of Washington or Pierce county.
The constitution of the United States, article 1, SS 8,
provides that:
CONCESSIONS COMPANY v. MORRIS. 49
Dec. 1919 Opinion Per MACKINTOSH, J.
"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, dockyards and other needful
buildings."
The state of Washington, by SS 6853, Rem. Code, consented
to the acquisition by the United States of lands
for military purposes, this act being in harmony with
the Federal constitutional provision above quoted, and
the act providing that:
"The jurisdiction of this state is hereby ceded to
the United States of America over all such land or
lands as may have been or may be hereafter *acquired
by purchase or condemnation, or set apart by the general
government* for any or either of the purposes before
mentioned: Provided, that this state shall retain
concurrent jurisdiction with the United States in and
over all tracts so acquired or set apart as aforesaid,
so far as that all civil and criminal process that may
issue under the authority of this state against any
person or persons charged with crimes committed, or
for any cause of action or suit accruing without the
bounds of any such tract, may be executed therein, in
the same manner and with like effect as though this
assent and cession had not been granted."
And in the following section, being SS 6854, the
legislature provided
"The tracts, pieces or parcels of land so acquired
or set apart, together with the tenements and appurtenances
for the purposes before mentioned, shall be held exempt
from taxation by the state of Washington. "
The legislature in 1917, in chapter 3, and chapter 4,
was dealing particularly with the Camp Lewis Reservation,
50 CONCESSIONS COMPANY v. MORRIS.
Opinion Per MACKINTOSH, J. 109 Wash.
and in those chapters consented to the
acquisition and granted exclusive jurisdiction to the
Congress of the United States of the territory donated for a
military reservation; SS 20, ch. 3, being as follows:
"Pursuant to the Constitution and Laws of the
United States, and especially to paragraph seventeen
of section eight of article one of such constitution, the
*consent* of the legislature of the State of Washington
is hereby given to the United States to acquire, by
*donation* from Pierce county, title to all lands herein
intended to be referred to. . . and the consent of the
State of Washington is hereby given to the exercise
by the Congress of the United States of exclusive
legislation in all cases whatsoever over such tracts or
parcels of land so conveyed to it. . . provided,
that all civil process issued from the courts of this
state and such criminal process as may issue under
the authority of this state, against any person charged
with crime in cases arising outside of said reservation,
may be served and executed thereon in the same mode
and manner and by the same officers as if the consent
herein given had not been made." Laws 1917, p. 14,
SS 20.
The state of Washington and its subsidiary municipalities
have no right to assess and tax the lands,
buildings and fixtures situated within the military
reservation which are the property of the United
States government, and it cannot be disputed that so
much of such property as has been attempted by the
respondents to be assessed against the appellant has
been assessed wrongfully; under the contract, the
buildings and fixtures being the property of the government
and not of the appellant. The contract clearly
provides that the buildings are to be of a permanent
nature and to remain where constructed, and the contract
especially provides against their removal by the
appellant, whose only right was to their use and occupation,
subject to the power of the commanding officer
CONCESSIONS COMPANY v. MORRIS. 51
Dec. 1919 Opinion Per MACKINTOSH, J.
to terminate that right at any time for military reasons.
That right is also terminated by the cessation
of the use by the appellant. Therefore, by express
agreement in the contract, as well as by the common law
principle governing the construction of buildings
upon lands of another and the attachment of fixtures
thereto, the buildings and fixtures used by the appellant
are the property of the United States. The Laws
of 1915, ch. 131, p. 358 (Rem. Code, SS 9098), expressly
provide that "all property, whether real or personal,
belonging exclusively to the United States"
shall be exempt from taxation. There then only remains
a question of whether the appellant's personal
property situated upon the reservation is subject to
state and county assessment and taxation.
Under our law, Rem. Code, SS 9101, only personal
property in the state of Washington can be listed for
taxation, and the question, therefore, must be answered
by a determination of whether personal property situated
upon this military reservation is in the state of
Washington. It seems to us that the answer to this
is clear, and that such property is without the state in
both a jurisdictional and territorial sense, for, as we
have seen by the constitution of the United States, and
the act of the legislature of this state, both the military
reservation itself and the jurisdiction and legislation
over it have been granted to the United States, and
thereby there has been created an independent sovereignty
the territory of which is surrounded by the
state of Washington, but over which the state of Washington
has no jurisdiction. A territory has been
created which resembles that of the District of Columbia,
the only reservation being that the state of Washington
can serve civil and criminal process therein on
actions arising outside the reservation.
52 CONCESSIONS COMPANY v. MORRIS.
Opinion Per MACKINTOSH, J. 109 Wash.
The supreme court of Massachusetts, in Commonwealth
v. Clary, 8 Mass. 72, had before it the question
of jurisdiction over the lands in Springfield purchased
by the United States for the purpose of erecting an
arsenal by consent of the state, and that court, through
its chief justice, said:
"On facts agreed upon in this case we are of the
opinion, that the territory on which the offence charged
is agreed to have been committed, is the territory of
the United States, over which the 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 offenses committed within that territory
are committed against the laws of this commonwealth,
nor can such offenses be punishable by the
courts of the commonwealth, unless the Congress of
the United States should give to the said courts
jurisdiction thereof.
"As a consequence of these positions, it is the
opinion of the Court, that they have no cognizance of the
offenses charged in this indictment, and that the defendant
must be discharged.
"An objection occurred to the minds of some members
of the Court, that if the laws of the commonwealth
have no force within this territory, the inhabitants
thereof cannot exercise any civil or political privileges,
under the laws of Massachusetts, within the
town of Springfield. We are agreed that such consequence
necessarily follows; and we think that no hardship
is thereby imposed on those inhabitants; because
they are not interested in any election made within
the State; or held to pay any taxes imposed by its
CONCESSIONS COMPANY v. MORRIS. 53
Dec. 1919 Opinion Per MACKINTOSH, J.
authority, nor bound by any of its laws - And it might
be very inconvenient to the United States to have their
laborers, artificers, officers and other persons employed
in their service, subjected to the services required by
the commonwealth of the inhabitants of the several
towns."
Cooley on Taxation (3d ed.), vol. 1, page 84, says:
"Persons and property not within the territorial
limits of a state cannot be taxed by it. In such a case
the state affords no protection, and there is nothing
for which taxation can be equivalent. This rule is
applicable. . . to persons who reside on lands
*purchased by or ceded to* the United States for navy
yards, forts, . . . etc., where the state has reserved
no other jurisdiction than that to serve process."
The case of State of Indiana ex rel. Wolf v. Pullman
Palace Car Co., 16 Fed. 193, defines the limits of the
state power of taxation as being co-extensive with its
sovereignty and reaches all the property in the state
which is not within the jurisdiction of the Federal
government, the court holding that, while the taxing
power of the state is unlimited within its jurisdiction,
it cannot, however, be exercised over persons or property
beyond its territory or jurisdiction. To the same
effect see Central Railroad Co. of New Jersey v. Jersey
City, 70 N.J. L. 81, 56 Atl. 239; and People ex rel.
Hatch v. Reardon, 184 N.Y. 431, 77 N. E. 970, 112 Am.
St. 628, 8 L. R. A. (N. S.) 314; and the Cleveland etc.
R. Co. v. Pennsylvania (State Tax on Foreign-Held
Bonds), 15 Wall. (82 U. S.) 300, where the supreme
court said:
"The power of taxation, however vast in its character
and searching in its extent, is necessarily limited
to subjects within the jurisdiction of the state. These
subjects are persons, property, and business. Whatever
form taxation may assume, whether as duties,
imposts, excises, or licenses, it must relate to one of
these subjects."
54 CONCESSIONS COMPANY v. MORRIS.
Opinion Per MACKINTOSH, J. 109 Wash.
The supreme court of the United States, in Fort
Leavenworth R. Co. v. Lowe, 114 U. S. 525, discusses
this question in a most exhaustive and interesting
opinion by Mr. Justice Field, in the course of which he
says:
"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 served 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. . .
"Thus, in United States v. Cornell, 2 Mass. 60, it
was held by Mr. Justice Story, that the purchase of
land by the United States for public purposes, within
the limits of a state, did not of itself oust the
jurisdiction or sovereignty of the state over the lands
purchased; but that the purchase must be by consent of
the legislature of the state, and then the jurisdiction of
the United States under the Constitution became exclusive
. . .
"These authorities [cited in the opinion in preceding
paragraphs] 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
CONCESSIONS COMPANY v. MORRIS. 55
Dec. 1919 Opinion Per MACKINTOSH, J.
under the Constitution operates to exclude all other
legislative authority.
"But with reference to lands owned by the United
States, acquired by purchase without the consent of
the State, or by cessions from other governments, the
case is different. Story, in his Commentaries on the
Constitution, says: 'If there has been no cession by
the State of the place, although it has been constantly
occupied and used under purchase, or otherwise, by
the United States for a fort or arsenal, or other constitutional
purpose, the state jurisdiction still remains
complete and perfect;' and in support of this statement
he refers to People v. Godfrey, 17 Johns. 225.
In that case the land on which Fort Niagara was
erected, in New York, never having been ceded by the
State to the United States, it was adjudged that the
courts of the State had jurisdiction of crimes or offenses
against the laws of the State committed within
the fort or its precincts, although it had been garrisoned
by the troops of the United States and held by
them since its surrender by Great Britain, pursuant to
the Treaties of 1793 and 1794. In deciding the case,
the court said that the possession of the post by the
United States must be considered as a possession for
the State, not in derogation of her rights, observing
that it regarded it as a fundamental principle that the
rights of sovereignty were not to be taken away by implication.
'If the United States,' the court added,
'had the right of exclusive legislation over the Fortress
of Niagara they would have also exclusive jurisdiction;
but we are of the opinion that the right of exclusive
legislation within the territorial limits of any State
can be acquired by the United States only in the mode
pointed out in the Constitution, *by purchase, by 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.*' The essence
of that provision is that the state shall freely cede the
particular place to the United States for one of the
specific and enumerated objects. This jurisdiction
cannot be acquired tortiously by disseisin of the state;
much less can it be acquired by mere occupancy, with
56 CONCESSIONS COMPANY v. MORRIS.
Opinion Per MACKINTOSH, J. 109 Wash.
the implied or tacit consent of the State, when such
occupancy is for the purpose of protection.'
"Where, therefore, lands are acquired in any other
way by the United States within the limits of a State
than by purchase with her consent, they will hold the
lands subject to this qualification; that if upon them
forts, arsenals, or other public buildings are erected
for the uses of the General Government, such buildings
with their appurtenances, as instrumentalities for
the execution of its powers, will be free from any
such interference and jurisdiction of the state as would
destroy or impair their effective use for the purposes
designed. Such is the law with reference to all instrumentalities
created by the general Government.
Their exemption from state control is essential to the
independence and sovereign authority of the United
States within the sphere of their delegated powers.
But when not used as such instrumentalities, the
legislative power of the State over the places acquired will
be as full and complete as over any other places within
her limits.
"As already stated, the land constituting the Fort
Leavenworth Military Reservation was not purchased,
but was owned by the United States by cession from
France many years before Kansas became a State;
and whatever political sovereignty and dominion the
United States had over the place comes from the cession
of the State since her admission into the Union.
It not being a case where exclusive legislative
authority is vested by the Constitution of the United States,
that cession could be accompanied with such conditions
as the State might see fit to annex, not inconsistent
with the free and effective use of the fort as a military
post. . .
"We are here met with the objection that the Legislature
of a State has no power to cede away her jurisdiction
and legislative power over any portion of her
territory, except as such cession follows under the
Constitution from her consent to a purchase by the
United States for some one of the purposes mentioned.
If this were so it would not aid the Railroad Company;
the jurisdiction of the State would then remain as it
CONCESSIONS COMPANY v. MORRIS. 57
Dec. 1919 Opinion Per MACKINTOSH, J.
previously existed. But aside from this consideration,
it is undoubtedly true that the state, whether represented
by her Legislature, or through a convention
specially called for that purpose, is incompetent to
cede her political jurisdiction and legislative authority
over any part of her territory to a foreign country,
without the concurrence of the general government.
The jurisdiction of the United States extends over all
the territory within the States, and, therefore, their
authority must be obtained, as well as that of the State
within which the territory is situated, before any
cession of sovereignty or political jurisdiction can be
made to a foreign country. And so when questions
arose as to the northeastern boundary, in Maine, between
Great Britain and the United States, and negotiations
were in progress for a treaty to settle the
boundary, it was deemed necessary on the part of our
government to secure the cooperation and concurrence
of Maine, so far as such settlement might involve a
cession of her sovereignty and jurisdiction as well as
title to territory claimed by her, and of Massachusetts,
so far as it might involve a cession of title to lands held
by her. Both Maine and Massachusetts appointed
commissioners to act with the Secretary of State, and
after much negotiation the claims of the two states
were adjusted, and the disputed questions of boundary
settled. The Commissioners of Maine were appointed
by her Legislature; and those of Massachusetts by her
Governor under authority of an act of her Legislature.
It was not deemed necessary to call a convention of the
people in either of them to give to the commissioners
the requisite authority to act effectively for their
respective states. 5 Webster's Works, 99; 6 Id. 273.
"In their relation to the general government, the
States of the Union stand in a very different position
from that which they hold to foreign governments.
Though the jurisdiction and authority of the General
Government are essentially different from those of
the State, they are not those of a different country;
and the two, the State and general government may
deal with each other in any way they may deem best
to carry out the purposes of the Constitution. It is
58 CONCESSIONS COMPANY v. MORRIS.
Opinion Per MACKINTOSH, J. 109 Wash.
for the protection and interests of the States, their
people and property, as well as for the protection and
interests of the people generally of the United States,
that forts, arsenals, and other buildings for public
uses are constructed within the States. As instrumentalities
for the execution of the powers of the General
Government, they are, as already said, exempt
from such control of the states as would defeat or impair
their use for those purposes; and if, to their more
effective use, a cession of legislative authority and
political jurisdiction by the State would be desirable,
we do not perceive any objection to its grant by the
legislature of the state. Such cession is really as much
for the benefit of the State as it is for the benefit of the
United States. It is necessarily temporary, to be
exercised only so long as the places continue to be used for
the public purposes for which the property was acquired
or reserved from sale. When they cease to be
thus used, the jurisdiction reverts to the State.
"The Military Reservation of Fort Leavenworth
was not, as already said, acquired by purchase with
the consent of Kansas. And her cession of jurisdiction
is not of exclusive legislative authority over the
land, except so far as that may be necessary for its
use as a military post; and it is not contended that the
saving clause in the act of cession interferes with such
use. There is, therefore, no constitutional prohibition
against the enforcement of that clause. The right of
the State to subject the railroad property to taxation
exists as before the cession."
That case establishes that property purchased by
the Federal government within the state and by its
consent for the purposes enumerated in the constitution
is held by the government in its proprietary and
sovereign capacity only when there has been a cession
of sovereignty by the state; that property owned by
the Federal government, of which it had both proprietary
and sovereign jurisdiction prior to the admission
of the state into the Union, is, after such admission,
held by the Federal government only in its proprietary
CONCESSIONS COMPANY v. MORRIS. 59
Dec. 1919 Opinion Per MACKINTOSH, J.
capacity, unless the state, after its creation, cedes
sovereignty, and that such cession of sovereignty may
be as restricted as the state sees fit to grant; that
property acquired by the Federal government without
consent of the state, as by condemnation or otherwise, is
held by the Federal government in its proprietary capacity
only; that the various states can cede to the
Federal government sovereignty over lands which are
held in Federal proprietorship, with such limitations
upon that cession of sovereignty as the state may impose, but
that, where such cession of sovereignty is
made to the Federal government of property acquired
by the Federal government by purchase and with the
state's consent and for the purposes enumerated in
the constitution, the cession of the state's sovereignty
must be complete.
To the point that, where land within the state is
purchased by the Federal government for the purposes
enumerated in the constitution with consent of the
legislature, Federal jurisdiction of the same is
exclusive of state jurisdiction, see Sharon v. Hill, 24 Fed.
726; Martin v. House, 39 Fed. 694. In Bannon v.
Burnes, 39 Fed. 892, the circuit court of Missouri said:
"So the sovereign - the local state government - consented
to this purchase by the superior government
before it was made, and covenanted on its part
that, when the United States should acquire the title
of the owner, the jurisdiction of the state should cease
over the property, and that of the United States should
attach, with the single reservation of the right of
entry for service of legal process. Then follows the
covenant of assurance that, whenever the state obtained
such property by purchase or grant, the property
thenceforth should be forever 'exonerated from
all taxes, assessments, and other charges, which may
be levied or imposed under the authority of the state.'
The taxing power is the attribute of sovereignty, and
the exercise of the highest jurisdiction. As it is a
60 CONCESSIONS COMPANY v. MORRIS.
Opinion Per MACKINTOSH, J. 109 Wash.
power to be exercised or forborne at the will of the
sovereign having jurisdiction, it follows logically that
the sovereign. may cede away such right, and release
the burden. And when the grant has been accepted
by the general government, and the conditions of the
purchase have been fully performed, such grant becomes
a solemn compact, which the general government
would not permit the state to violate. The term
'exonerated' was, presumably, employed in its ordinary
acceptation; 'to be relieved of as a charge; to be
discharged or exempted.' Be the contention of plaintiff's
counsel correct, that the lien of the city government
on this property, so far as the owner and all
other persons were concerned, attached on the 1st day
of January, 1879, yet under the city charter (section 4,
art. 6) the fiscal year begins on the third Monday in
April, which in 1879 was the 21st day of April. The
assessment is made between the 1st day of January
and the third Monday of April, and is delivered to the
council at its first meeting of the fiscal year. The
council then by ordinance proceeds 'to levy taxes for
the fiscal year.' A copy of this, with the assessment
books, is delivered to the auditor, who then extends
the taxes, and delivers the tax-book to the collector
on the 1st day of May. Sections 20, 21. From which
it is manifest that the taxes for the year 1879 were
not levied until after the 9th day of April, and after
the United States had acquired title to the property
by purchase. . . The state, by the act of cession,
covenanted, in effect, that when the government should
purchase this property it would not thereafter make
any levy; and if the state itself had proceeded as did
the city to make a levy for the purpose of taxation,
after the 9th day of April, 1879, this property would
have been exonerated therefrom. The municipal corporation
of Kansas City is an integral part of the
state. It is but an adjunct of the state power, to aid
in carrying out the ends of government. It is therefore
no less an action taken by the state when done
through the agency of a subordinate municipal corporation.
When the superior sovereignty ceded away
its right and jurisdiction to make this levy and sale,
CONCESSIONS COMPANY v. MORRIS. 61
Dec. 1919 Opinion Per MACKINTOSH, J.
it necessarily negatived and withdrew the power of
its inferior, existing by its consent, and acting as one
of its governmental instruments, to do that which itself
could not."
In the case of In re Ladd, 74 Fed. 31, it was held
that the state had no jurisdiction over crimes committed
at Fort Robinson, the title to the land within
the fort having been acquired from France in 1803,
but when Nebraska was admitted to the Union in 1867,
the land, then not being used for military purposes,
passed into the jurisdiction of the state. In 1876, a
military reservation was established there by the government,
and in 1887 the legislature of Nebraska ceded
jurisdiction of the reservation with certain conditionsú
The court held that the cession of jurisdiction created
by the act of 1887 was legal, and when it went into
effect the jurisdiction was wholly ceded to the United
States, and until that exclusive jurisdiction is
terminated by the Federal government ceasing to own or
exercise control thereof or retrocedes it to the state,
such cession was within the legislative power of the
state, the court saying:
"Here we find that there were parties competent to
contract; a subject-matter to be contracted about; an
agreement reached, as evidenced by the adoption of
the act of March, 1887, by the legislature of the state,
and its acceptance by the United States; and a sufficient
consideration, in the large outlay of money made
by the United States in the enlargement of the post,
and other improvements made on the reservation.
. . . By the cession of jurisdiction contained in the
act of March, 1887, the state had parted with the power
of legislative control over the reservation, except in
the matter of service of process, and in regard to
roads and highways; and under the provisions of
section 10, art. 1, of the constitution of the United
States, the state could not abrogate the contract it
had entered into with the United States."
62 CONCESSIONS COMPANY v. MORRIS.
Opinion Per MACKINTOSH, J. 109 Wash.
State ex rel. Jones v. Mack, 23 Nev. 359, 47 Pac. 763,
held that, where a state cedes to the United States
exclusive jurisdiction of land purchased by consent
for a public building, for all purposes except
enforcement of "criminal laws of this state," there was no
jurisdiction for the punishment of crimes on the
reservation, but only the right to execute criminal process
there for a violation of the laws of the state committed
elsewhere within the state.
United States v. Bateman, 34 Fed. 86, recognizes the
rule as set forth in the above cases, but distinguishes
that case for the reason that therein the Federal government
had retroceded to the state its jurisdiction
over territory purchased by consent of the state for
the location of a national home for disabled soldiers.
In that case it is said:
"These observations are as applicable to the Presidio
as to the Fort Leavenworth reservation, as will
be seen by reference to the act admitting California.
The only reservation relating to the public land affected
the proprietary interest of the United States
in the lands. That interest was to be in no way interfered
with. There was no reservation whatever as to
sovereignty, or governmental powers or jurisdiction.
There was no distinction made in the act of admission
between these lands and other lands constituting the
public domain in California. There being no reservation
of governmental powers or jurisdiction over the
Presidio lands in the act admitting California into the
Union, in the language of the supreme court in the
case cited, 'the United States, therefore, retained, after
the admission of the state, only the rights of an
ordinary proprietor.' And, again, says the court; '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,
CONCESSIONS COMPANY v. MORRIS. 63
Dec. 1919 Opinion Per MACKINTOSH, J.
unless political jurisdiction be ceded to them in some
other way, is simply that of an ordinary proprietor.'
The United States were both proprietors and sovereigns
of the Presidio lands till the admission of the
state of California into the Union. By the act of admission,
reserving only their proprietary right over
these lands, they relinquished to the state their governmental
or local sovereign right, and jurisdiction,
and were thenceforth only proprietors in the sense that
any natural person owning land is a proprietor. Having
so relinquished their sovereign rights, that condition
remains to this day, unless the state has in some
way, either directly or by implication, receded to the
United States its sovereign jurisdiction. This could
be done by direct cession, or by consenting through its
legislature to the purchase of land for such governmental
purposes, and a purchase for such purposes in
pursuance of such consent. Neither has been done in
this instance. There is no act directly ceding the
jurisdiction. By the act of 1852, we have seen, the
legislature in the proper form consented that the United
States might purchase lands for certain specific purposes,
including military purposes. But these lands
were not so purchased. They were owned by the
United States before California became a state, and
by her admission into the Union the sovereignty was
relinquished."
Exum v. State, 90 Tenn. 501, 17 S. W. 107, 25 Am.
St. 700, 15 L. R. A. 381, seems to hold contrary to the
rule here announced, but in that case there was a dissenting
opinion by Justices Lurton and Snodgrass,
which weakens the effect of the main opinion, in itself
ill-considered.
It is, of course, true that the Federal government
may acquire any land which it may see fit by purchase,
without the consent of the state or by the exercise of
eminent domain. Van Brocklin v. State of Tennessee,
117 U. S. 151; Chappell v. United States, 160 U. S. 499.
The reservations, so often contained in the cession
accompanying the consent for the Federal government
64 CONCESSIONS COMPANY v. MORRIS.
Opinion Per MACKINTOSH, J. 109 Wash.
to obtain by purchase, that the process of the state
courts may be served in the places purchased, in actions
arising outside such places, is intended to prevent
such reservations from becoming the asylums of
fugitives from justice, and is not invalid as interfering
with the exclusive jurisdiction of the United States.
In the Federal constitutional section to which we have
called attention (section 8, article 1), the cession of
jurisdiction which is made to the Federal government
in furtherance or in conformity with that constitutional
provision is an absolute cession, but a provision
such as our act of cession contains for the service of
process within the purchased lands does not make the
cession conditional.
United States v. Meagher, 37 Fed. 875, holds that,
where lands within a state are acquired by the Federal
government in other ways than by purchase with the
consent of the state and there has been no cession of
sovereignty, the jurisdiction of the Federal government
will, in the exercise of its ownership, be free from
such state interference, as that would impair the
effective use of the property for the governmental purposes
for which it was acquired.
In Crook, Homer & Co. v. Old Point Comfort Hotel
Co., 54 Fed. 604, the court says:
"It [the supreme court of the United States] held
moreover, that where land is acquired by the United
States in any other manner than by such actual purchase,
with the consent of the state, attended by a cession
from the state of all jurisdiction over it, there the
clause of the constitution giving the power of exclusive
legislation to congress, and giving exclusive jurisdiction
to the United States, does not apply. The
court held that in this class of cases the United States
takes the lands only under such a tenure, limited or
unlimited, as the state confers by each special act of
cession, and that such title is to be dealt with by the
CONCESSIONS COMPANY v. MORRIS. 65
Dec. 1919 Opinion Per MACKINTOSH, J.
courts precisely as if the land had been ceded by the
state to a private individual. . . However much
these decisions may have disturbed opinions previously
entertained by the legal profession, they are
the supreme law of the land, and must be enforced by
the courts. An inspection of the act of cession of
Virginia conveying to the United States the lands of Old
Point Comfort, belonging to herself, *and not purchased
by the United States with her consent,* from any other
owner, and ceding jurisdiction over them, will show
that the case falls within the ruling of the supreme
court in the two cases of Railroad Co. v. Lowe and
Railroad Co. v. McGlinn, and that Fortress Monroe is
held by the United States, not subject to clause 17, SS 8,
art. 1, of the constitution [the section heretofore
discussed in this opinion] but only by the tenure prescribed
by Virginia's act of cession of March 1, 1821,
and her governor's deed of cession of December 12,
1838. These acts contain quite a number of very material
limitations of the power of the United States
over file land at Old Point Comfort. "
In In re Kelly, 71 Fed. 545, it was held that
purchase of land in the state by the general
government with the consent of the legislature does not ipso facto
confer on the general government exclusive jurisdiction
unless the purchase is for one of the
purpose distinctly named in article 1, SS 8, of the constitution,
but in order that exclusive jurisdiction may be acquired
over land taken for any other purpose, the
consent of the state government and the cession of its
jurisdiction must be declared unequivocally and it must
appear conclusively that the state is ceding exclusive
jurisdiction, in order to oust it completely of
jurisdiction. See, also, Ex parte Gaines, 56 Ark. 227,
19 S. W. 602; Barrett v. Palmer, 135 N.Y. 336, 31 N. E. 1017,
31 Am. St. 835, 17 L. R. A. 720.
But the cession of jurisdiction to the Federal
government over property not acquired as provided in
66 CONCESSIONS COMPANY v. MORRIS.
Opinion Per MACKINTOSH, J. 109 Wash.
the constitution may be accompanied by such conditions
as the state may see fit to annex, as long as those
conditions are not inconsistent with the use of the
property for the purposes for which it is purchased.
Territory v. Burgess, 8 Mont. 57, 19 Pac. 558, 1 L. R.
A. 808, and Barrett v. Palmer and United States v.
Bateman, above. The Burgess case holds that the
jurisdiction of the United States over Fort McGinnis
Military Reservation was not exclusive for the reason
that the reservation was a part of the territory of
Montana, and that the Federal government possessed
sovereignty as long as there existed territorial government.
To the same effect, see Rice & Quinette v.
Hammond, 19 Okl. 419, 91 Pac. 698, where the supreme
court of Oklahoma held that the county taxing officers
had a lawful right to levy and collect taxes on personal
property belonging to private individuals located
on the Fort Sill Military Reservation. It appears
from the case that Oklahoma at the time was a
territory and, as such, Congress had a right to legislate
therefor, and Congress having granted the right
to subject all property to taxation, it was immaterial
that part of the property was located on a government
reservation. The court said:
"Counsel have overlooked the fact that Congress
has not only exclusive legislative control over military
reservations in the territories, but it has legislative
control of the territories themselves. The Fort Sill
military reservation is within the organized county of
Comanche and constitutes a part thereof. The persons
and property within such reservation have the protection
of the laws of the territory, and it is only equitable
that the property therein not belonging to the
United States should pay a part of the expenses of the
same. If Congress had intended that the property on
this or other reservations in the territory should not
be taxed, it would have so declared, as it did with
CONCESSIONS COMPANY v. MORRIS. 67
Dec. 1919 Opinion Per MACKINTOSH, J.
reference to property of the United States and property
belonging to certain Indians."
As was decided in Fort Leavenworth R. v. Lowe,
above, the legislatures of the various states have
power to cede sovereignty to the Federal government
of any territory within the state, and it appears from
the record in this case that the title to the property
here in question had been donated to the Federal government
by Pierce county, and the state having the
power to cede exclusive jurisdiction thereover, or with
such reservations as the legislature might desire to
make, it follows that the Federal government by such
cession, made by the state confirming the donation of
Pierce county, acquired such jurisdiction as was ceded.
Were this a case where Camp Lewis had been purchased
by the consent of the state, the legislature
could have only ceded exclusive jurisdiction subject to
the modifications we have noted, that is, that the state
could have reserved the right to serve civil and criminal
process in actions arising out of the Federal reservation
It is to be borne in mind that we are not here concerned
with the question of whether the personal property
owned by the appellant might or might not be
assessed and taxed against it at its place of residence
within the state.
The rule here announced does not conflict with those
cases, among which is Page v. Pierce County,
25 Wash. 6, 64 Pac. 801, which allow the taxation of property on
Indian reservations, as there is no question but that
such property is territorially within the confines of
the state, nor does this opinion conflict with the right
of the state to assess and tax improvements upon public
lands, which improvements have been construed as
personal property for the purposes of taxation. Percival
v. Thurston County, 14 Wash. 586, 45 Pac. 159.
68 CHICAGO, M. & ST. P. R. CO. v. FRYE & CO.
Syllabus. 109 Wash.
From the foregoing considerations, it appears that
the demurrer should have been overruled, and for that
reason the judgment of the lower court is reversed.
HOLCOMB, C.J., PARKER, MITCHELL, and MAIN, JJ.,
concur.