Oscar Daniels Co. v. City of Sault Ste. Marie

Fellows, J. (after stating the facts). Although not raised by counsel for appellee, the first question [374] presented by the record is whether there is anything before the court for its determination. It has been held that where no request for special findings is made and no findings in fact made and no exception taken, there is nothing to review. Nichol v. Ward, 156 Mich. 136; Wilson v. Hugus, 163 Mich. 577. And it has been repeatedly held that where no exceptions are taken to any of the findings and it is not-assigned as error, or contended, that the facts found do not support the conclusions of law, assignments of' error in the admission and rejection of testimony and', the sufficiency of the evidence to support particular findings cannot be reviewed. See cases cited in note to section 4, Rule No. 45, in Searl’s Michigan Court Rules. We have concluded that as the facts have been stipulated and, as stipulated, they present a single principal question of law, we may consider the contention made in substance and effect in the assignments of error and argued in the briefs, whether they support the conclusion of law — the judgment. Upon the main proposition as to whether the tax was rightfully laid, we are to consider whether the jurisdiction of the State extended for that purpose to any personal property situated and used on the ceded lands. If the territory is beyond the jurisdiction of the State and within the exclusive jurisdiction of Congress, as the trial court held, then the judgment is right. The i oint, it is said by appellee, is directly ruled by Willis v. Oscar Daniels Co., 200 Mich. 19, where a construction was placed upon the proviso to the act of 1881 to the effect that— “The jurisdiction reserved was for the purpose of providing there should be no neutral territory where civil and criminal process might not be served.” And it must be admitted that the opinion of the circuit court in that case, quoted from at length in the opinion of this court, denies jurisdiction of the [375] State over the ceded territory. But this court did not adopt the opinion of the trial judge in that case; and, as will be pointed out, the opinion of this court does not, of necessity, deny all jurisdiction of the State in ceded territory. The question there before the court was the right of the State to regulate the relations, rights and liabilities of-employees and employers engaged in the construction of governmental works — in their performance of the functions of the Federal government. The language there used must be limited, in its application, to the case then before the court. Here the question involved is whether the State surrendered its sovereign power of taxation. The case must turn upon the construction of the grant made by the State to the United States. In Fort Leavenworth R. Co. v. Lowe, 114 U. S. 525 (5 Sup. Ct. Rep. 995), and in Chicago, etc., R. Co. v. McGlinn, 114 U. S. 542 (5 Sup. Ct. Rep. 1005), the principles affecting a construction of the grant were exhaustively considered by the Supreme Court of the United States, with conclusions which, applied here, require, we think, a reversal of the judgment. As a fact in both cases, it appeared that the State of Kansas ceded to the United States exclusive jurisdiction over and within the territory known as the Fort Leavenworth reservation in that State, the title to which was in the United States, saving the right of the State to serve civil and criminal process within said reservation and saving further to said State the right to tax railroad, bridge and other corporations, their franchise and property, on said reservation. The State levied a tax on the track, right of way, franchises, road bed, telegraph line and instruments connected therewith on the reservation, the tax was paid under protest, and the suit was brought to recover the money so paid. It was the contention of the railroad company that the act of cession operated under the Con [376] stitution of the United States to vest in the United States exclusive jurisdiction over the reservation and that the last saving clause, being inconsistent with that result, should be rejected. This contention the court rejected, holding— “that a building on a tract of land owned by the United States used as a fort, or for other public purposes of the Federal government, is exempted, as an instrumentality of the government, from any such control or interference by the State as will defeat or embarrass its effective use for those purposes. But, in order that the United States may possess exclusive legislative power over the tract, except as may be necessary to the use of the building thereon as such instrumentality, they must have acquired the tract by purchase, with the consent of the State. (Art. I, § 8, subd. 17.) This is the only mode prescribed by the Federal Constitution for their acquisition of exclusive .legislative power over it. When such legislative power is acquired in any other way, as by an express act ceding it, its cession may be accompanied with any conditions not inconsistent with the effective use of the property for the public purposes intended.” Vide opinion in Chicago, etc., R. Co. v. McGlinn, supra. And in the second case it was held that a law of Kansas, passed before the cession of the reservation, making a railroad company whose right of way was unfenced liable for the value of stock killed by its trains upon such right of way, remained in force after the cession of the reservation, it having been contended, to defeat a judgment of the State court given for the value of cattle killed, that the act became inoperative within the limits of the reservation after the act of cession to the United States of exclusive jurisdiction over it. In the case at bar there is not, in terms, as there was in the case of the Fort Leavenworth reservation, a cession to the United States of exclusive jurisdiction and, as the cession was not made upon purchase [377] by the United States and consent of the State thereto, there is no implication of a cession of exclusive jurisdiction except as the implication may be raised upon the proviso, which, however, reserves no legislative jurisdiction. And the'jurisdiction expressly reserved may be accounted for upon the theory that for whatever reason the cession was made it was sufficient to confer exclusive jurisdiction in the United States to control the canal, any buildings and works connected with it, and with its operation for the purposes of its operation. There was no occasion for the State to cede exclusive jurisdiction to the United States, no apparent reason for denying to the State such jurisdiction, legislative and other, as did not interfere with the control by the United States of the property transferred for the purposes of the transfer. We construe the grant itself as a cession of less than exclusive jurisdiction, and the proviso as it was construed in Willis v. Oscar Daniels Co., supra. In this view, the ceded territory is not out of the State of Michigan so far as the operation of its tax laws is concerned, but is within the State. The tax levy in question was properly made, and the tax was a lawful one. Willis v. Oscar Daniels Co., supra, may, and should, rest upon the ground that the State legislation sought there to be enforced affected the United States in a matter over which it had exclusive jurisdiction, namely, the building of a lock in the ceded territory. The matter and language of this opinion are largely those of the late Justice Ostrander which are now formulated into this opinion of the court. The judgment is reversed and a new trial granted, with costs to appellant. Bird, C. J., and Moore, Steere, Brooke, Stone, and Kuhn, JJ., concurred.