For the prosecutor, William A. Kirk.
For the defendants, Milton T. Lasher.
Amici curioe, David T. Wilentz, attorney-general, and J. Raymond Tiffany, assistant attorney-general.
Before Justices Heher and Perskie.
The opinion of the court was delivered by
HEHER, J. 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 19th, 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 5th, 1894, under the General Borough act of 1878. 1 General Statutes (Revision of 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 seven hundred 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 9th, 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 motor boats and pleasure yachts, while the latter employs his premises for the mooring and storage of scows, barges and other vessels, approximately eighty 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 I, section 8, clause 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 I, section 10, clause 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; (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 XV 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), 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 extra-territorial jurisdiction embracing the authority exercised by the ordinance at issue. On the contrary, it is insisted the legislature has ...