Johnson v. Yellow Cab Transit Co. ( 1943 )

BRATTON, Circuit Judge

(concurring).

The United States acquired by cession from France the lands' comprising the Fort Sill Military Reservation in Oklahoma, and since long prior to the admission of the state into the Union, the Reservation has been used continuously and exclusively for military purposes of the United States. By statute, the state ceded to the United States exclusive jurisdiction over all territory owned by the United States and comprising the Reservation so long as the United States should own and hold the Reservation for military purposes, except that the state reserved the right to serve civil or criminal process therein in suits or prosecutions for or on account of rights acquired, obligations incurred, or crimes committed in the state but outside the Reservation, and the further right to tax railroad companies and other corporations and their franchises and property within the Reservation. 80 O.S. 1941 § 4. The United States did not expressly accept the cession but that was unnecessary as it will be presumed in the absence of any dissent. Fort Leavenworth R. Co. v. Lowe, 114 U.S. 525, 5 S.Ct. 995, 29 L.Ed. 264. By act of Congress, the United States consented that the several states should have authority to make their Workmen’s Compensation Acts applicable to lands and premises owned by the United States within the exterior boundaries of such states. 49 Stat. 1938, 40 U.S.C.A. § 290. Oklahoma accepted the cession and extended its Workmen’s Compensation Act accordingly.' 85 O.S.1941 § 4. And by act of Congress, the United States consented that the several states be empowered to extend their income, sales, and use tax acts to Federal areas within such states. 54 Stat. 1059, 4 U.S.C.A. §§ 13, 14. Aside from these exceptions, none of which has any material bearing here, the laws of Oklahoma as state laws do not have any force or effect within the Reservation. Fort Leavenworth R. Co. v. Lowe, supra; Collins v. Yosemite Park Co., 304 U.S. 518, 58 S.Ct. 1009, 82 L.Ed. 1502.

Section 272 of the Criminal Code, 18 U. S.C.A. § 451; and section 289 óf such Code, 18 U.S.C.A. § 468, commonly called the Assimilative Crimes Act, together, runvide in effect that the doing or failure to do any act or thing on lands reserved or acquired for the exclusive use of the United States and under the exclusive jurisdiction thereof, which is not made penal by an act of Congress but which if committed within the jurisdiction of the state in which such lands-are situated would constitute a penal offense, shall constitute a like offense and be-subject to like punishment.

An existing statute in Oklahoma, 37' O.S.1941 § 41, provides that it shall be unlawful to import or transport into the state intoxicating liquor containing more than four per cent of alcohol by volume, without a permit first secured therefor as therein-after provided. And there are other state statutes making it penal to do certain things-in respect of intoxicating liquor but it is-unnecessary to detail them. However, theAssimilative Crimes Act does not make-these state statutes effective as state laws-within the Reservation. Where that act applies, it adopts as laws of the United'. States for the government of designated places under the exclusive jurisdiction of the United States the criminal laws of the respective states in which such places are situated. Under its provisions, the laws of the state become laws of the United States, in respect of such a place. They have no. effect whatever as laws of the state. Franklin v. United States, 216 U.S. 559, 30 S.Ct. 434, 54 L.Ed. 615; United States v. Press Publishing Co., 219 U.S. 1, 31 S.Ct. 212, 55 L.Ed. 65, 21 Ann.Cas. 942; People of Puerto Rico v. Shell Co., 302 U.S. 253, 58-S.Ct. 167, 82 L.Ed. 235.

The Twenty-first Amendment of' the Constitution of the United States, and the Act of August 27, 1935, 49 Stat. 877, 27 U.S.C.A. § 122, each prohibit the transportation or importation of intoxicating liquor into a state in violation of the laws of such state. A state is therefore free to. forbid the importation of intoxicating liquor in interstate commerce into its territorial' boundaries or it may enact regulatory provisions for such importation. State Board v. Young’s Market Co., 299 U.S. 59, 57 S. Ct. 77, 81 L.Ed. 38; Mahoney v. Triner Corp., 304 U.S. 401, 58 S.Ct. 952, 82 L.Ed. 1424; Indianapolis Brewing Co. v. Liquor Control Commission, 305 U.S. 391, 59 S.Ct. 254, 83 L.Ed. 243. And it may impose reasonable ' regulations intended to safeguard . the'movement of such liquor in interstate-commerce through the state, provided they do not constitute a substantial burden on such commerce. Duckworth v. Arkansas, 314 U.S. 390, 62 S.Ct. 311, 86 L.Ed. 294, 138 A.L.R. 1144. But a state has no power to forbid the transportation in interstate commerce of intoxicating liquor through its territorial boundaries. United States v. Gudger, 249 U.S. 373, 39 S.Ct. 323, 63 L.Ed. 653; Williams v. Commonwealth, 169 Va. 857, 192 S.E. 795. And that is true even though the shipment is enroute to a destination where the manufacture and sale of such liquor is prohibited by state law. McCanless v. Graham, 177 Tenn. 57, 146 S.W. 2d 137; Barnett v. State, 243 Ala. 410, 9 So.2d 267.

This shipment crossed state lines and was in every essential respect a movement in interstate commerce. It originated in Illinois, and its destination was a point within the geographical boundaries of Oklahoma but wholly beyond the jurisdiction or control of the state in respect of the sale, possession, or use of intoxicating liquor. The state had no power, either under the sweep of the Twenty-first Amendment, as an attribute of sovereignty, or otherwise, to interfere by seizure and confiscation with such interstate commerce under color of preventing the importation of intoxicating liquor in violation of its local law. Cf. Collins v. Yosemite Park Co., supra.