State v. Federanko, A--74

• Decision Date: 17 February 1958
• Docket Number: No. A--74,A--74
• Citation: 139 A.2d 30,26 N.J. 119
• Parties: STATE of New Jersey v. Donald FEDERANKO, Defendant-Appellant.
• Court: New Jersey Supreme Court

Page 119

26 N.J. 119

139 A.2d 30

STATE of New Jersey v. Donald FEDERANKO, Defendant-Appellant.

No. A--74.

Supreme Court of New Jersey.

Argued Jan. 20, 1958.

Deciced Feb. 17, 1958.

James G. Aiken, Deputy Atty. Gen., assigned as Acting Pros. of Salem County, for the State (Grover C. Richman, Jr., Atty. Gen.).

William Hermann, Camden, for defendant-appellant (William B. Knight, Camden, attorney).

The opinion of the court was delivered by

FRANCIS, J.

On January 9, 1957 an accusation was filed in the County Court of Salem County against the defendant Donald Federanko, charging him with gambling in violation of N.J.S. 2A:112--1, N.J.S.A. More specifically, the offense was alleged to have been committed 'in and upon the waters of the Delaware River, and upon the eastern half of said Delaware River, in the County of Salem, and State of New Jersey, to wit: on premises known as 'Pennsgrove Pier', extending from the end of West Main Street, in the Borough of Pennsgrove, County of Salem, and State of New Jersey.' Indictment and trial by jury were waived and on January 18, 1957 a plea of Non vult was entered. Defendant was then given a suspended six months' county jail sentence and was placed on probation for two years subject to certain conditions, among them the payment of a $500 fine. Subsequently a motion was made to vacate the judgment of conviction on the grounds (1) that no offense was committed against the State of New Jersey because the act took place on the Delaware River within the State of Delaware, and (2) that the County Court of Salem County had no jurisdiction since that locus was beyond the boundary lines of the county. Denial of the motion was followed by an appeal to the Appellate Division of the Superior Court which was brought to this court on our own motion.

Almost from the beginning of their statehood down to 1935, New Jersey and Delaware had engaged in a boundary dispute involving title to the bed, or subaqueous soil, of the Delaware River. The phase of the controversy which is pertinent in the present case involved that territory within a circle of 12 miles about the town of New Castle. Delaware claimed ownership of the entire bed of the river within the limits of this circle up to the low water mark on the east or New Jersey side. New Jersey claimed to be the owner up to the middle of the channel.

In 1877 litigation was instituted in the United States Supreme Court by New Jersey to enjoin the exercise by Delaware of its asserted right to enforce certain statutes relating to fisheries in the river. In 1905, for the purpose of settling the conflict of jurisdiction, a compact was executed, L.1905, c. 42; R.S. 52:28--34 et seq., N.J.S.A., and upon its approval by Congress, Act of January 24, 1907, c. 394, 34 Stat. 858, the still pending suit was discontinued. State of New Jersey v. State of Delaware, 205 U.S. 550, 27 S.Ct. 793, 51 L.Ed. 925 (1907). The controversy over ownership of the bed of the river was not adjusted thereby. That issue was expressly reserved. Article VIII; R.S. 52:28--42, N.J.S.A.

Article I provided:

'Criminal process issued under the authority of the state of New Jersey against any person accused of an offense committed * * * upon the eastern half of said Delaware river, or committed on board of any vessel being under the exclusive jurisdiction of that state, and also civil process issued under the authority of the state of New Jersey against any person domiciled in that state * * * may be served upon any portion of the Delaware river between said states from low-water mark on the New Jersey shore to low-water mark on the Delaware shore * * *.'

with certain exceptions not relevant here. N.J.S.A. 54:28--35. A like provision relating to the westerly half of the river was made for civil and criminal process issuing out of Delaware. Article II; R.S. 52:28--36, N.J.S.A.

The effect of this language was to recognize and to establish in New Jersey substantive jurisdiction over criminal offenses committed on the easterly half of the river and to authorize the service of criminal process upon any portion thereof between low water marks of the two states. State v. Cooper, 93 N.J.L. 13, 107 A. 149 (Sup.Ct.1919). In that case, Chief Justice Gummere, in disposing of the contention now being advanced, said:

'We think the first contention, that is, lack of jurisdiction, is without merit. The tidal waters of the Delaware river separate this state from the state of Delaware. By a compact entered into between these two sovereign powers, the jurisdiction of each state, both civil and criminal, extends to the middle line of the river.'

However, defendant argues that a 1934 decision of the United States Supreme Court, which declared that in the area with which we are concerned presently, title to the bed of the river up to the low water mark on the New Jersey side is in Delaware, overrules the doctrine of State v. Cooper. State of New Jersey v. State of Delaware, 291 U.S. 361, 54 S.Ct. 407, 78 L.Ed. 847 (1934). This argument overlooks the statement in the opinion that 'Within the twelve-mile circle, the river and the subaqueous soil thereof up to low water mark on the easterly or New Jersey side will be adjudged to belong to the state of Delaware, Subject to the Compact of 1905.' (291 U.S. at page 385, 54 S.Ct. at page 415; emphasis added.)

It ignores also the following clause in the judgment entered in the action:

'This decree is made without prejudice to the rights of either state * * * by virtue of the compact of 1905 between said states.' State of New Jersey v. State of Delaware, 295 U.S. 694, 699, 55 S.Ct. 907, 910, 79 L.Ed. 1659 (1935).

Moreover, we are aware of no instance since 1935 where either state has made any effort to disavow the pact or to claim that the judgment referred to imposed a qualification upon its longevity. On the contrary, in this proceeding the brief of the State of Delaware has adopted the view of our Attorney-General with respect to its continued existence and undiminished effectiveness.

It is true, of course, that prior to 1905 New Jersey claimed the bed of the river at the location involved here to the middle of the main channel, and that the adverse ruling of the Supreme Court declared the fee thereto to be in Delaware. But ownership of subaqueous soil by one state does not stand in the way of an agreement with its neighbor on the other side for a sharing of the criminal jurisdiction over the river. State v. Cunningham, 102 Miss. 237, 59 So. 76 (Sup.Ct.1912); People v. Central R. Co. of New Jersey, 42 N.Y. 283, 294 (Ct.App.1870); State v. Davis, 25 N.J.L. 386 at page 388 (Sup.Ct.1856). For example, the compact of 1834 between New Jersey and New York established ownership by this State of the land under the Hudson River between Manhattan Island and New Jersey to the middle of the river. L.1834, p. 118; N.J.S.A. 52:28--4. By the same concord, New York was given '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 the mouth of Spuyten Duyvel Creek, and of and over the lands covered by the said waters to the low-water mark on the westerly or New Jersey side thereof.' This language was held to confer on New York exclusive criminal jurisdiction over the described waters of the river to the New Jersey low water mark. State v. Babcock, 30 N.J.L. 29 (Sup.Ct.1862); People v. Central R. Co. of New Jersey, supra. It was a grant of police power, but not a grant of sovereignty so as to interfere with the incidence of taxation arising from the ownership of the bed to the thread of the stream. State v. Carlaftes, 24 N.J. 451, 457, 132 A.2d 515 (1957); Tennant v. State Board of Taxes & Assessments, 95 N.J.L. 465, 113 A. 254 (E. & A.1921); Central R. Co. of New Jersey v. Jersey City, 70 N.J.L. 81, 91, 56 A. 239 (Sup.Ct.1903), affirmed 72 N.J.L. 311, 61 A. 1118 (E. & A.1905), affirmed 209 U.S. 473, 28 S.Ct. 592, 52 L.Ed. 896 (1908). Defendant's first ground for reversal is therefore without merit.

This brings us to a consideration of the contention that the County Court of Salem County had no jurisdiction because the offense was committed on the river beyond the low water mark of this State and beyond the boundaries of Salem County.

N.J.S. 2A:3--4, N.J.S.A., provides that the County Court 'shall have cognizance of all crimes and offenses of an indictable nature which have been or shall be committed * * * in the county in and for which the court is held * * *.' Thus, in the absence of some special circumstance, a crime perpetrated--whether on land or water--beyond the territorial limits of a county, could not be within the ambit of the court's authority. State v. Davis, supra, 25 N.J.L. at page 388.

In support of the right to prosecute in the County Court, the State relies in part upon State v. Cooper, supra. There, as here, the offense was committed on the New Jersey side of the Delaware River opposite Pennsgrove, in Salem County. The Supreme Court opinion indicates that the authority to entertain the indictment was sustained by reason of the 1856 act (L.1856, p. 242; C.S. 5371; N.J.S.A 52:28--33), which gave jurisdiction over crimes perpetrated on the easterly half of the Delaware River to the county court 'lying and being nearest to the place' of commission. But examination of the statute demonstrates beyond question that it was enacted to implement the compact of 1783 between New Jersey and Pennsylvania regarding ownership and control of the portion of the river separating them. Rev.1877, p. 1181; C.S. 5368--5371; N.J.S.A. 52:28--23. The State of Delaware was not a party to the agreement. The segment of the river involved is between New Jersey and Delaware and not between New Jersey and Pennsylvania, and thus could not have been subject to the 1856 act. Consequently, State v. Cooper must be discarded as a precedent in the present...