The State v. Corson

• Court: New Jersey Supreme Court
• Writing for the Court: GUMMERE, J.
• Citation: The State v. Corson, 50 A. 780, 67 N.J.L. 178 (N.J. 1901)
• Decision Date: 11 November 1901
• Parties: THE STATE v. ISAAC CORSON, JR

50 A. 780

67 N.J.L. 178

STATE

v. CORSON.

Supreme Court of New Jersey.

Nov. 11, 1901.

Isaac Corson, Jr., was indicted for unlawfully dredging for oysters. Motion to quash indictment. Denied.

The legislature of this state on March 24, 1899, passed an act entitled "An act for the better regulation and control of the taking, planting and cultivating of oysters on lands lying under tidal waters of the Delaware Bay and Maurice River Cove in the state of New Jersey." P. L. 1899, p. 506. This act, as its title suggests, creates a complete scheme for the planting, cultivating, and taking of oysters on the lands of the state lying under the tidal waters mentioned. The first section provides for the creation of a "state oyster commission," which shall have the exclusive regulation and control of all the oyster grounds of the state lying under those waters. Sections 2 and 3 empower the commission to appoint an "oyster superintendent," and to employ surveyors and guards to enforce all laws regulating the taking, planting, or cultivating of oysters in the waters mentioned. Section 4 provides for the maintenance of an office, and the holding of meetiugs by the commission. Section 5 authorizes the commission to lease to applicants any of these lands for the purpose of taking, planting, and cultivating oysters thereon: "provided, however, that no lease, or leases shall be granted to any person who shall not be at the time of granting of said lease or leases, and shall not have been for twelve months next preceding, a citizen and actual resident of this state: provided, nevertheless, that any person not a citizen or resident of this state, already holding and using ground or grounds south of said southwest line in the Delaware Bay and Maurice River Cove, and having oysters planted thereon under any usage, custom or existing law of this state, may apply for and receive a lease or leases for said ground or grounds so held at the time of the adoption of this act." Sections G and 7 fix the terms upon which the lands may be leased, and give the first right to apply for and receive a lease to persons now having such lands staked up. Section 8 authorizes the commission to survey and map leased land. Section 9 excludes from the operation of the law all natural oyster beds lying under these waters. Section 10 authorizes the oyster superintendent to issue licenses to captains of boats entitled by law to engage in the business of catching, planting, and growing oysters in these waters, upon their paying the license fixed therefor by the state oyster commission, and prohibits all boats from dredging for or catching oysters or carrying on the oyster business therein without first obtaining such license and paying the fee. It also authorizes the state oyster commission to fix the license fee at any sum not exceeding $2 per ton on the tonnage measurement of such boats. Section 11 requires the state oyster commission, before issuing any lease, to cause the person applying for the same to make oath that he is a citizen and actual resident of the state, and has been such for 12 months next preceding his application, or that at the time of the adoption of the statute he was holding or using, and has since continued to hold or use, for the purpose of taking, planting, and cultivating oysters, the lands for which the application for a lease is made. It further requires that the oyster superintendent, before issuing a license for a boat, shall cause the master or captain to make oath that such boat is wholly owned by citizens and actual residents of this state, who have been such for 12 months next preceding, or that at the time of the adoption of the statute the boat was duly licensed, under laws existing at that time, to carry on the business of catching, planting, and growing oysters in Delaware Bay and Maurice River Cove. Sections 12, 13, and 14 relate to unexpired licenses, and to the disposition of the revenue received under the act. Section 15 requires the oyster superintendent to keep an account of fees received by him, and submit such accounts to the state comptroller, and, after they have been audited by that officer, to pay over the moneys shown thereby to the state treasurer. It also requires the payment by that officer of bills incurred by the state oyster commission. Sections 10 and 17 prohibit the taking of oysters from lands under these waters which are held by lease from the state oyster commission, except during a designated period, and at any time from such lands as are not held by lease from the commission. Section 18 requires the return to the waters of all oyster shells and other materials, except oysters, which shall be taken up in the process of dredging. Section 19 empowers the state oyster commission to adopt ordinances to regulate the taking, catching, and cultivating of oysters in these waters. Section 20 provides that "any person or persons who shall hereafter dredge upon or throw, take or cast his oyster dredge, or any other instrument used for the purpose of catching oysters, upon any oyster bed or ground duly marked, buoyed or staked up within the waters of this state, belonging to any other person, without the permission of the lessee or lessees thereof, shall be deemed guilty of a misdemeanor and of a violation of the provisions of this act." Section 21 authorizes the members of the state oyster commission, the oyster superintendent, and the several captains or masters of guard boats to arrest, on view, without special warrant, any person engaged in violating the provisions of the act, or the provisions of any ordinance adopted by the state oyster commission. Section 22 provides for the revocation of licenses under certain conditions. Section 23 excludes from the privileges of the act any person or boat which at the time of its passage was prohibited by the laws of this state then in force from engaging in the business which the act regulates and controls. Section 24 is a disclaimer of any intent to confirm or verify by the act the title of any person to any of these lands. Section 25 provides that "any person violating any of the provisions of the act, or any ordinance duly adopted by the state oyster commission, or the provisions of any other law of this state regulating the taking, planting or cultivating of oysters in the Delaware Bay or Maurice River Cove, in force and not repealed by this act, shall be deemed guilty of a misdemeanor, and, on conviction thereof, shall be punished by a flue not exceeding $1,000 or imprisonment in state prison not exceeding five years, or both." Section 26 repeals all inconsistent legislation. The indictment brought up for review is found under the twentieth and twenty-fifth sections of the act, and charges the prosecutor with unlawfully dredging for oysters upon a certain oyster bed, duly staked out, marked, and buoyed, within the waters of Delaware Bay and Maurice River Cove, and belonging to and in the possession of one Hager, under a lease made to him by the state oyster commission, without the permission of the lessee.

Argued February term, 1901, before GUMMERE and FORT, JJ.

Walter H. Bacon and David J. Pancoast, for the motion.

J. H. Fithian, Prosecutor of the Pleas, and William H. Logue, opposed.

GUMMERE, J. (after stating the facts). The only ground upon which this Indictment is attacked is that the statute under which it is found is void because in conflict with both the federal and the state constitutions. It is claimed by the prosecutor that it runs counter to the following provisions of the federal instrument, viz.: Article 1, § 8: "Congress shall have power * * * to regulate commerce * * * among the several states." Article 1, § 10, par. 3: "No state shall, without the consent of congress, lay any duty of tonnage." Article 4, § 2: "The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states." Article 14, § 1: "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States * * * or deny to any person, within its jurisdiction, the equal protection of the laws." The provisions of our state constitution with which it is said to conflict are: Article 1, § 15: "Excessive fines shall not be imposed, and cruel and unusual punishments shall not be inflicted." Article 4, § 1, par. 1: "The legislative power shall be vested in a senate and general assembly." Article 4, § 7, par. 4: "Every law shall embrace but one object, and that shall be expressed in the title." Article 4, § 7, par. 11: "The legislature shall not pass private, local or special laws * * * regulating the internal affairs of * * * counties, * * * or granting to any * * * individual, any exclusive privilege, immunity or franchise whatever." Article 4, § 7, par. 12: "Property shall be assessed for taxes under general laws and by uniform rules." The portions of the statute said to be repugnant to the provision of the federal constitution which vests congress with the power to regulate commerce among the states are sections 10 and 11.

The question presented by this contention, whether the regulation of the oyster business, as denned by the act (i. e. the taking, planting, and cultivating of oysters in the tidal waters of the state) is a regulation of commerce between the states, is not a novel one. In the case of McCready v. Virginia, 94 U. S. 391, 24 L. Ed. 248, it is declared by that court that each state owns the beds of all tide waters within its jurisdiction, unless they have been granted away, and that in like manner the states own the tide waters themselves, and the fish in them; that the title thus held is subject to the paramount right of navigation, the regulation of which, in respect to foreign and interstate commerce, has been granted to the United States, but that there has been "no such grant of power over the fisheries"; that these remain under the exclusive control of the state,...