Ross v. Mayor and Council of Borough of Edgewater

• Decision Date: 25 September 1935
• Docket Number: No. 233.,233.
• Citation: 180 A. 866
• Parties: ROSS v. MAYOR AND COUNCIL OF BOROUGH OF EDGEWATER et al.
• Court: New Jersey Supreme Court

180 A. 866

ROSS

v. MAYOR AND COUNCIL OF BOROUGH OF EDGEWATER et al.

No. 233.

Supreme Court of New Jersey.

Sept. 25, 1935.

Certiorari proceeding' by G. Hilliard Ross, as sole acting executor and trustee under the last will and testament of William O. Ross, deceased, against the Mayor and Council of the Borough of Edgewater and another.

Writ dismissed.

Argued January term, 1935, before HEHER and PERSKIE, JJ.

William A. Kirk, of New York City, for prosecutor.

Milton T. Lasher, of Hackensack, for defendants.

David T. Wilentz, Atty. Gen., and J. Raymond Tiffany, Asst. Atty. Gen., amici curiae.

HEHER, Justice.

The question presented by this certiorari is the validity of an ordinance adopted by the council of the borough of Edgewater and approved by the mayor on September 19, 1933, entitled "An Ordinance to regulate and to license the mooring, storage and maintenance of scows, barges and other vessels in the Borough of Edgewater." It ordains that "no person shall," without the prescribed license, "place, store, moor, abandon or maintain any scow, barge or other vessel * * * in waters of the Hudson River, within the jurisdictional limits" of the borough. There is provision for an "annual" license, which the mayor and council may grant after a public hearing upon notice published in two local newspapers "at least once a week for two successive weeks," and posted on the locus in quo, "if in their judgment it is proper for the good government, order and protection of persons and property and for the preservation of the public health, welfare and safety of the Borough of Edgewater and its inhabitants"; and for a "temporary" license for a period not exceeding ten consecutive days, which may be issued by the mayor and council without a hearing, if justified by the considerations outlined above. The annual license fee is $5 for one scow, barge, or other vessel, and $2.50 for each additional vessel within the same category. The temporary license fee is $2 for a vessel of like description, and $1 for each additional vessel. Penalties are prescribed for the enforcement of the ordinance.

The borough is situate on the west bank of the River Hudson, at this point a navigable water of the United States. It is a municipal corporation created on December 5, 1894, under the general borough act of 1878. 1 Gen. St. 1895, p. 175. Its easterly boundary is the Hudson river. The beginning point is "at the Hudson River"; the line proceeds inland in a general westerly direction, and the last course runs "northerly along the Hudson River to the place of beginning."

Prosecutor is the owner of a tract of land in the borough, bounded by the high-water mark of the river for an approximate distance of 700 lineal feet; and he also holds a license issued by the State's Board of Commerce and Navigation to "use the certain boat storage basin" situate upon the submerged littoral lands of the state fronting his uplands. It is stipulated that his lands extend to the mean high-water mark of the river, and that the State of New Jersey is the owner of the lands below such line, subject to his "rights as the owner of the upland, and the rights of the United States government therein."

On July 9, 1934, a complaint, under oath, was presented to the recorder of the borough, alleging that Adolph Koch, on the prior June 28th, in violation of the provisions of the ordinance, "did store, moor and maintain a vessel commonly known as a barge on the flat lands of the Hudson River, between the high and low water marks of said river," without having first obtained a license therefor, "said flat lands being within the jurisdictional limits" of the borough; and a complaint charging William F. Ingold, Jr., with a like violation was filed on the same day. A summons commanding the appearance of the defendant was issued upon each complaint; but this certiorari was allowed before the termination of the proceedings thereon.

Prosecutor's lands are divided by a dock or pier running east and west. The northerly portion was leased to Koch, and the southerly part to Ingold. The former devotes his lands to the storage and repair of motorboats and pleasure yachts, while the latter employs his premises for the mooring and storage of scows, barges, and other vessels, approximately 80 per cent. of which are registered under the act of Congress in the coastal trade of the United States. There is evidence that all the boats, barges, and scows stored on the premises leased to Ingold are used in foreign and interstate commerce, and that some of the yachts and pleasure craft stored in the basin maintained by Koch on his leased lands are also registered in the coastal trade. The latter's premises also contains a barge, used as a machine shop, and a float devoted to storage purposes.

Prosecutor's challenge is rested mainly upon fundamental considerations, viz.: (1) That the ordinance regulates and imposes a burden upon commerce on navigable waters of the United States with foreign nations and among the several states, in contravention of article 1, § 8, cl. 3, of the Federal Constitution; (2) that it lays a tonnage duty on vessels engaged in interstate and foreign commerce on the navigable waters of the United States, in violation of article 1, § 10, cl. 3, of that Constitution; (3) that it is "an attempt on the part of the borough to take private property for public use without just compensation," in violation of the Federal and State Constitutions (Const. U. S. Amend. 14; Const. N. J. art. 1, § 16); (4) that it is, in certain particulars, arbitrary, unreasonable, and discriminatory in character; and (5) that exclusive jurisdiction over the lands in question has been committed by the Legislature to the State's Board of Commerce and Navigation; that the municipality does not possess general powers to thus license and regulate the mooring, storage, and maintenance of vessels so situated on navigable waters of the United States; and that, even so, its exercise is restrained, in virtue of the provisions of article 15 of the act concerning municipalities (Pamph. L. 1917, pp. 319, 358), as amended by chapter 215 of the Laws of 1929 (Pamph. L. 1929, p. 406 [Comp. St. Supp. 1930, § *136—1501]), as to the possessor of "a license or certificate issued by any department, board, commission or other agency of the State of New Jersey."

The Attorney General urges that the borough's territorial limit is the high-water mark of the river, and there is no legislative grant of extraterritorial jurisdiction embracing the authority exercised by the ordinance at issue. On the contrary, it is insisted the Legislature has expressly "entrusted its care" to the Board of Commerce and Navigation.

The primary question, therefore, is whether the jurisdiction of the borough, in respect of the subject-matter of the ordinance, extends to the lands lying between the mean high and low water marks of the river, a distance of approximately 500 feet.

The borough maintains that the challenged municipal action was a proper exercise of the police power, to prevent the abandonment of scows, barges, and like vessels on these flat lands, and in the basins dredged thereout by the owners or occupants of the contiguous uplands. It is pointed out that these littoral lands "consist of soft river muck and silt," except where "dredged out or filled in by industrial plants located on the contiguous upland"; and that "these flat lands have been used as a convenient place for storing and abandoning all types of scows, barges and other vessels." It is said that many of these barges are used for residential purposes without adequate sanitary facilities; that their occupants "have constituted a difficult problem for police regulation, and necessitated an expenditure" of a substantial sum "for poor relief"; that a further resultant condition is an increase of the fire hazard; and that the regulations in question are needful for the public health and safety. It is asserted that the design of the governing body was the elimination of these objectionable conditions "on the flatlands lying in front of uplands which are put to no commercial use," and not to regulate, in any sense, commerce upon the waterway; and that the ordinance is so limited in scope and effect. It is pointed out that section 10 excepts from its operation "the storage, mooring or maintenance of scows, barges or other vessels by an owner of lands under tidewater, or by a lessee of said owner, if said scows, barges or other vessels are stored, moored or maintained on said lands under tidewater as an incident to the use by said owner or lessee of uplands adjacent thereto."

The borough, while not disputing that its easterly boundary is the Hudson river, maintains that, under the treaty negotiated between the states of New York and New Jersey in 1833, and ratified by the Congress on June 28, 1834 (4 Comp. St. 1910, p. 5358; 4 U. S. Stat, at Large, p. 708), the state's territorial boundary is the median line of the river, and that, "since it is the universal practice of the various states to subdivide their entire territory into counties and their counties into municipalities, the existence within a state of any portion of its territory without county or municipal relation is unheard of," and the jurisdiction of the borough is therefore not limited to the high-water mark, but is "coextensive with the jurisdiction of the State of New Jersey, in respect to the lands beneath the waters of the Hudson River adjacent to said borough,"—citing Leary v. Jersey City (C. C. A.) 208 F. 854, 859, affirmed Id, 248 U. S. 328, 39 S. Ct. 115, 63 L. Ed. 271.

While this treaty established the boundary between the two states at the median line of the river, the third article thereof grants to the state of New York "exclusive jurisdiction of and over all the waters of the bay of New York, and of and over all the waters of Hudson river, lying west of Manhattan island, and to the south of...