Appeal from the District Court of the United States for the Western District of Oklahoma; Edgar S. Vaught, Judge.
Before PHILLIPS, BRATTON, and MURRAH, Circuit Judges.
The F.A.S. Officers Club is an organization composed of several thousand army officers who are on duty at the United States Fort Sill Military Reservation.*fn1 The Club is managed by a secretary who is an army officer in active service. It provides, among other things, an officers' mess, living quarters for a number of officers, lounges, reading rooms, and other recreational facilities, and renders various club services to its members.
Prior to October 24, 1942, several hundred members of the Club gave to the Club secretary their individual written orders for varying quantities of intoxicating liquor. These orders designated the brand and quantity desired and were accompanied by checks or money to pay for such intoxicating liquor. The Club secretary, acting for such officers, assembled, tabulated, totaled, and forwarded these orders to M. B. Gintz Company, at East St. Louis, Illinois. The Gintz Company accepted the orders and in fulfillment thereof, on October 24, 1942, delivered to Yellow Cab Transit Company*fn2 at East St. Louis, on a uniform bill of lading, 225 cases of wine and spirituous liquors, consigned to F.A.S. Officers Club Mess, at the Reservation.
While such shipment was in the possession of the Transit Company as a common carrier and in the course of transit from East St. Louis to the Reservation, but while it was momentarily stopped at the terminal and dock of the Transit Company at Oklahoma City, Oklahoma, it was seized by Johnson, Commissioner of Public Safety of the State of Oklahoma, Husted, Superintendent of the Bureau of Identification and Investigation of the Department of Public Safety of Oklahoma, West and Riggs, deputies under the Superintendent, and McGrew and Kolb, deputy sheriffs of Oklahoma County, Oklahoma,*fn3 and was transported to and placed in a vault in the county courthouse of Oklahoma County, where it is held under the claim that it is an illegal shipment of intoxicating liquor subject to confiscation and destruction.
Had the shipment been delivered at the Reservation, it would have been received by the secretary of the Club for delivery to the officers who had placed the order.
This action was commenced by the Transit Company against the state enforcement officers for a mandatory injunction requiring them to hold the shipment in status quo pending the determination of the action and requiring them to return the shipment to the Transit Company and to refrain from interfering with the Transit Company's possession and movement of such shipment in interstate commerce to its destination.
From a judgment granting the relief prayed for, the state enforcement officers have appealed.
The Reservation is located wholly within the exterior boundaries of Oklahoma. It was acquired by the United States from France long before Oklahoma became a state. Since prior to the admission of Oklahoma as a state it has been and it now is, used exclusively for military purposes and for the performance of the functions of the War Department of the United States. In 1913, the state of Oklahoma enacted a statute ceding exclusive jurisdiction over the Reservation, with certain exceptions not here material, to the United States.*fn4
Oklahoma has power under the Twenty-first Amendment to forbid all importations of intoxicating liquor into the state or to adopt a lesser degree of regulation than total prohibition.*fn5 It may also require a permit for the transportation of intoxicating liquor in interstate commerce through the state as a means of establishing the identity of those who engage in such transportation and their routes and points of destination, and of enabling local officers to take appropriate measures to insure transportation without diversion.*fn6
Oklahoma has not enacted any statutes regulating the transportation of intoxicating liquor through the state. It requires a permit for transportation of liquor into the state.*fn7
While the Twenty-first Amendment increased the power of the state with respect to importation into the state, it did not extend the territorial jurisdiction of the state. Territorial jurisdiction over the Reservation is in the United States, a distinct sovereignty, and the Twenty-first Amendment gave the state no power to prohibit importation of intoxicating liquor into the Reservation or to regulate the transportation, possession, sale, or other disposition of such liquor within the Reservation. There was no transportation into Oklahoma for delivery or use therein. The shipment was consigned for delivery in the Reservation.*fn8 We conclude, therefore, that the seizure by the state enforcement officers was without warrant of law and was wholly illegal.
The Assimilative Crimes Act*fn9 provides that whoever, within the territorial limits of a state, within or upon any lands reserved or acquired for the use of the United States, and under the exclusive or concurrent jurisdiction thereof, shall do any act or thing which is not made penal by any act of Congress, but which if committed within the jurisdiction of the state, by the laws thereof in force on ...