Lowe v. Lowe

133 A. 729, 150 Md. 592, 46 A.L.R. 983, 1926 Md. LEXIS 55

• Court: Court of Appeals of Maryland
• Decided: May 4, 1926
• Status: Published

Opinions

Digges, J.,

delivered the opinion of the Court.

The appellant, complainant in the cross-bill, filed in the Circuit Court for Cecil County, was. refused^ a. divorce be■cause the jurisdictional residence relied on was residence on property at Perry Point, wdiieh property at the¡ time of bringing the suit belonged to the United States, and residence 'there was not, in the opinion of the trial judge, sufficient to give the court jurisdiction, becausef it was not within the county. She appeals from the decree which resulted from .that decision.

Section 37 of article 16, Code of 1924, provides:

“Courts of equity of this state shall have jurisdiction of all applications for divorce; and any person desiring a divorce shall file his or her bill in the court either where the party plaintiff or defendant resides; or if the party against whom the bill is filed bo a nonresident, then such bill may he filed in the court where •.the plaintiff resides.”' a

And section 40 of the same 'article provides:

“ETo person shall he entitled to make application for a divorce, where the causes for divorce occurred out of this state, unless the party plaintiff or defendant shall have resided within this state for two years next preceding such application.”

The lower court decided that the parties to the divorce proceeding were not residents of Maryland, and therefore, under the provisions of the statute applicable to- divorce, the courts-of Ma'ryland have no jurisdiction. If the chancellor’s decision on this point was correct, it is decisive and conclusive of the ease. „

Perry Point, with about five hundred acres of land, then, in Cecil County, Maryland, was purchased by the United: States in 1918, during the war, and devoted to the manufacture of chemicals for war purposes. A manufacturing plant was erected on it, and 'also- a large settlement of workmen’s-houses. It now has on it, in addition, hospitals for the care of disabled soldiers under the control of the United States-Veterans’ Bureau. Chapter 143, Acts of the General Assembly of Maryland, 1906, now codified as sections 31, 32.’ and 33, article 96, provides as follows:

“The consent of the State of Maryland is hereby given in accordance with the seventeenth clause, eighth section of the first article of the Constitution of the United States, to the acquisition by the United States by purchase, condemnation or otherwise of any land in this state required for sites for custom houses, court houses, post offices, arsenals or other public buildings whatever, or for any other purposes of the government.

“Exclusive jurisdiction in and over any land so acquired by the United States shall be and the saméis hereby ceded to the United States for all purposes except the service upon said sites of all civil and crim-inal process of the courts of this state, but the jurisdiction so ceded shall continue no longer than, the said. United States shall own such lands.

“The jurisdiction ceded shall not vest until the United States shall have acquired the title to said lands by purchase, condemnatiou or otherwise; and so long as the said lands shall remain the property of the United States when .acquired as aforesaid, and no longer, the same shall he and continue exempt and exonerated from all state, county and municipal taxation, assessment, or other charges which may he levied or imposed under the authority of this State.”

The Constitution of the United States, article 1, section 8, «lause 17, provides that the Congress shall have power:

“To exercise exclusive legislation in all cases whatsoever, over such district (not exceeding ton 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 he, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings.”

It will be noted that the acquisition of the lands embraced ■sm and known as Perry Point was in strict accordance with idle provisions of the Federal Constitution; that is to say, if was purchased by the United States Government for the purposes mentioned in the Constitution, and the consent of the State of Maryland was given to said purchase, as well .as the exclusive jurisdiction thereover being ceded to the Federal Government as provided by the Act of .1906 above quoted. The only reservation made by the State of Maryland was the rigid of the officers of the State to serve upon such sites all civil and criminal process of the courts of ■this State. This reservation is found in almost if not all of the state statutes wherein consent is given to the Federal Government for the purchase of property within the state. It has been universally held that such a reservation does not affect the exclusive jurisdiction over such territory by the United States. The only purpose and effect of such reservation is to prevent such sites becoming’ a place of refuge for criminals or service-dodgers, and such service-of process is the action of the Federal Government, they recognizing the officers of the state in performing such duties as being officers ' of the United States for such purpose. Fort Leavenworth R. R. Co. v. Lowe, 114 U. S. 525 ; United States v. Cornell, 2 Mason, 60 ; Commonwealth v. Clary, 8 Mass. 72 ; Opinions of the Justices, 1 Metcalf (Mass.), 580 ; Brooks Hardware Co. v. Greer, 111 Maine, 78 ; Foley v. Shriver, 81 Va. 568 ; Story, Commentaries on Const. (4th ed.), vol. 2, pp. 126, 7. In the case of United States v. Cornell, supra, quoted with approval in Fort Leavenworth R. R. Co. v. Lowe, supra, in speaking of the effect of the reservatioix as to the service of civil and criminal process, it was said: “It provides only that civil and criminal process-issued under the authority of the state, which must, of course, be for acts done within and cognizable by the state, may be executed within the ceded lands, notwithstanding the cession. Hot a word is said from which we can infer that it was-intended that the state should have a light to punish for acts done within the ceded lands. The whole apparent object is answered by considering the clause as meant to prevent these lands from becoming a sanctuary for fugitives from justice for acts done within the acknowledged jurisdiction of the state. Mow. there is nothing incompatible with ex-elusive sovereignty or jurisdiction of one state that it should' permit another state in such cases to- execute its process within its limits. And a cession of exclusive jurisdiction may well be made with a reservation of a light of this-nature, which then operates only as a condition annexed to the cession, and as an agreement of the new sovereign to permit its free exercise, as quoad hoc his own process. * * *' And we have not the least hesitation in declaring that the true interpretation of the present proviso leaves the sole and exclusive jurisdiction of Fort Adams in the United States.” Acceptance by the United States of such, a cession. is evidenced by the purchase of the property, and even if this were not true, such acceptance is to be assumed. Fort Leavenworth R. R. v. Lowe, supra ; Benson v. United States, 146 U. S. 325.

The provision of the Maryland statute in respect of divorce, quoted above, is that the bill may be filed in the court either where the party plaintiff or defendant resides, or if the party against whom the bill is filed bo a non-resident, then it may be filed where the plaintiff resides. In this case the husband filed his original bill in the Circuit Court for Cecil County on August 10th, 1922, for divorce on the ground of adultery, and alleged residence in that county. The wife answered two months later; and over two years thereafter, no further proceedings having been taken in the meantime, filed her cross-bill on the ground of abandonment. The ease then proceeded on the cross-bill, without contest. Testimony taken showed that the couple lived together at Perry Point for three years, up' to October, 1921; that the wife has since resided in Washington, D. C.; that the husband, after residing at Perry Point for another1 year, left, and is now residing in Montgomery’ County. There was no suggestion that lie was in the military service, and it seems rather to have been assumed that he was a civilian employee. We shall take this to be a fact.

The question of the right of a resident on a United States reservation to sue for a divorce in the state court seems not to have been decided in any one of the many cases on the relations of such residents to the state government. We are of the opinion that in view of the Maryland statute in reference to residence in the state as being a, prerequisite to filing a bill for divorce, the question depends upon whether or not the government reservation at Perry Point was, at the time of the bill filed, Maryland territory. The record does not disclose that either of the parties, to this divorce proceeding were ever residents of the State, of Maryland before the filing of the bill, unless residence on the government reservation also makes them residents of Maryland for the purpose ox invoking tke aid of tke state courts in obtaining a divorce. Tke federal constitutional provision speaks only of tke power in Congress to exercise exclusive legislation over the land, but tke courts kave, witk practical unanimity, keld tkat tke power of exclusive legislation carries witk it exclusive jurisdiction, and in many cases kave treated tke cession as accomplishing a thorough separation of tke land and its inkabitants from tke state. It kas been stated generally tkat tke states cannot take cognizance of any 'acts done in tke ceded places after tke cession; the inkabitants of those places cease to be inkabitants of tke state and can no longer exercise any civil or political rights under the laws of tke state. Story’s Commentaries on Const., sec. 1222 ; 1 Kent’s Commentaries, p. 430 ; Fort Leavenworth R. R. Co. v. Lowe, supra ; Chicago, Rock Island & Pacific R. R. Co. v. McGlinn, 114 U. S. 542. It kas accordingly been keld tkat residents on suck reservations cannot vote at state elections (Sinks v. Reese, 19 Ohio St. 306), cannot kave tke benefit of tke common schools of tke state for their children, are exempt from all state and county taxes, are not entitled to receive state support for the relief of tke poor, and are not affected on tke reservation by state liquor laws. Opinions of the Justices, 1 Metc. (Mass.), 580 ; United States v. Ames, 1 Woodb. & Minot, 76 ; Commonwealth v. Clary, supra ; Fort Leavenworth R. R. Co. v. Lowe, supra ; Maurice v. Worden, 52 Md. 283. It kas also been keld tkat a law concerning deliveries of stone witkin Massachusetts: had no application to deliveries at tke Charleston Navy Yard (Mitchell v. Tibbetts, 1 7 Pick. [Mass.] 298) ; tkat an incorporated national home was not subject to attachment because not a corporation witkin tke state (Brooks Hardware Co. v. Greer, supra ; Foley v. Shriver, supra) ; and tkat a state law imposing a penalty for failure to deliver a telegram witkin tke state could not apply to deliveries witkin a navy yard (Western Union Telegraph Co. v. Childs, 214 U. S. 274).

Erom an examination of tke authorities on this subject it appears tkat there are three principal methods by which tke United States may acquire land within a state. First, the method spoken of as the constitutional method, being that provided by clause 17, section 8, article 1 of the federal constitution, which method is by purchase of the land by the federal government from the owners; with the consent of the state wherein the land is located. Acquisition by this method transfers to the federal government exclusive dominion and jurisdiction thereover for all purposes, with the single exception of the right by the state through its officers to serve civil and criminal process on such reservation. Second, by purchase without obtaining tbe consent of tbe state, or by condemnation. In such a case tbe federal government owns tbe land thus acquired in the same manner as an individual would, and the state has full jurisdiction thereover for all purposes, with the limitation that its jurisdiction cannot be so exercised as to' interfere with the essential and necessary operations of the federal government thereon. Third, where the land acquired by the government was the property of the state, such acquisition being by a cession by tbe state to, the federal government in the nature of a gift. If such method be pursued, the state can annex any conditions, or reservations to the cession as it may see fit; and if the federal government takes thei land, it accepts it subject to such conditions or reservations. Illustrations of this last method of acquisition are found in the cases of Fort Leavenworth R. R. Co. v. Lowe, supra ; Chicago, Rock Island & Pacific R. R. Co. v. McGlinn, supra, and Crook, Horner & Co. v. Old Point Comfort Hotel Co., 54 Fed. 604. Tho first two cases deal with cession by tho State of Kansas, of land belonging to that state, to the federal government, with certain reservations as to taxes etc., which reservations were upheld by the Supreme Court; the ease last cited being tbe case of a cession by tbe State of Virginia of land belonging to it at Fortress Monroe, with the reservation that should any part thereof cease to be used for governmental purposes, it should revert to the state.

In the case of Divine v. Unaka Nat. Bank, 125 Tenn. 98, the court held that administration upon the estate of an in mate of the National Home for Disabled Volunteer’ Soldiers might be properly had in the state probate court. In its opinion the court says: “But where land within a state is acquired by the United States, with the consent of a state, then under article 1, section 8, sub-section 11, of the federal constitution, the jurisdiction of the United States is complete and exclusive, and the reservation contained in such grants, to the effect that the state shall have the right to serve civil and criminal process within the territory ceded, is limited to causes of action arising outside of the ceded territory ; the purpose of such reservation being to prevent the territory’s becoming an asylum for fugitives from justice. This must be understood and applied, however, in the light of the principle of public, law that, when the new sovereign has not provided legislation for the territory so acquired, the laws of the former sovereign continue in force so far as needed for the protection and enforcement of the municipal or private rights of individuals residing within the territory.” The court then cites Fort Leavenworth R. R. Co. v. Lowe, supra, and Chicago, Rock Island & Pacific R. R. Co. v. McGlinn, supra, as authority. As above stated, both of these cases deal with land which belonged to the State of Kansas and which was ceded by that state, with certain reservations, to the federal government, and are not cases of land having been acquired in the method prescribed by the federal constitution. They therefore do not appear to' be authority for the proposition laid down by the Tennessee court, “that when the new sovereign has not provided legislation for the territory so acquired, the laws of the former sovereign continue in force so far as needed for the protection and enforcement of the municipal or private rights of individuals residing within the territory.” '

The great weight of authority is to' the effect that lands acquired in accordance with the provisions of the federal constitution cease to be a part of the state^ and become federal territory, over which the federal government has complete and exclusive jurisdiction and power of legislation. It is therefore clear that persons residing upon the government reservation at Perry Point are not residents of the State of Maryland for the purpose of exercising' the right of franchise, for taxation purposes, or for school purposes, for the reason that they reside updn territory belonging to the United States and not the State of Maryland; and in our opinion, for the same reason, they are not such residents of the state as would entitle them to file a bill for divorce in any of the courts of the state. It might he said that it is an unfortunate situation, where, by reason of the fact that the federal government has failed to make provision for such cases, residents upon such reservations are left without any remedy; hut this is a condition wherein the only relief which can be given is by the Eederal Congress.

[Neither do we think that inconvenience would require us to take a different view. The right of applying for or obtaining a divorce is not a natural right, but is only accorded by reason of the state statutes, and the state has the right to determine who, and upon what conditions they are entitled to the use of the state courts, for that purpose. The Legislature in its wisdom has seen fit to require that to entitle a person to file a hill for divorce, such person should he a resident of the state, and there is no sound reason for holding that persons residing upon government reservations are not residents of the state for all other purposes, hut are residents for the purpose of divorce actions. They can exercise no political rights in the state; they are not subject to jury duty; neither can they he taxed for the maintenance of the state government, including the courts, and it does not seem unreasonable that the Legislature should require actual residence within the state as a prerequisite for the filing of a bill for divorce. In our opinion the learned chancellor was correct in deciding that the Circuit Court for Cecil County had no jurisdiction in the case, and the decree must he affirmed.

Decree affirmed, with costs to the appellee.