On appeal from Monmouth County Court.
For reversal -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Burling, Jacobs and Weintraub. For affirmance -- Justice Wachenfeld. The opinion of the court was delivered by Burling, J.
[24 NJ Page 452] The defendants were arrested by members of the New Jersey State Police and the Monmouth County Prosecutor's Office for violations of the gambling laws, N.J.S. 2 A:112-1 et seq. The summary arrests took place on August 4, 1955 on board the S.S. Peter Stuyvesant, a New York excursion vessel, carrying passengers from New York City to Atlantic Highlands, New Jersey. At the time, the ship was moving in the waters of Sandy Hook Bay, south of the territorial boundary between the States of New York and New Jersey and approximately 1/2 mile off the New Jersey shoreline, seaward of low water mark. Upon reaching shore the defendants were taken before a municipal magistrate of Middletown Township, Monmouth County, and held under bail. The Monmouth County grand jury returned an indictment against them charging violations of N.J.S. 2 A:112-1 and 3 of the gambling laws. When the case came on for trial defendants' counsel moved the indictment be dismissed for lack of jurisdiction over the defendants and the subject matter, contending that by virtue of the Compact of 1834 between New Jersey and New York the latter state exercised exclusive jurisdiction over the waters where the arrests took place and the alleged offenses occurred. The
Monmouth County Court agreed and the indictment was dismissed. The State appealed to the Superior Court, Appellate Division, R.R. 3:5-5(7), and we certified the cause prior to a review below.
Here a case arising out of the routine enforcement of the gambling laws develops into one of major importance. The defendants, non-residents, declined to instruct their counsel to defend the appeal and the Appellate Division relieved him of further representation. (Defendants are taking a calculated risk in their course of action, compare Landy v. Lesavoy, 20 N.J. 170 (1955), as a reversal will operate to reinstate the indictment.) This court, however, requested the attorney to brief and argue the matter because of the question involved.
The question presented for decision is whether New Jersey ceded any portion of its otherwise exclusive jurisdiction to New York under the Compact of 1834 over the waters lying off Monmouth County and westerly of Sandy Hook, all of which lie within the New Jersey territorial boundary as established by that Compact.
The Compact of 1834 marked the culmination of a long dispute between the two states over sovereign rights in the waters of the Hudson River, New York Bay and the Kill von Kull. We need not restate the adverse claims advanced nor trace the historically interesting path which preceded the Compact. See Fernow, Historical Sketch of the Boundary Line Between the States of New York and New Jersey, Appendix 8, New Jersey Boundary Line Pamphlets (State Library), for the earlier phase of the controversy, and Hall v. Devoe Mfg. Co., 14 F. 183 (D.C.N.J. 1882), prohibition denied 108 U.S. 401, 2 S. Ct. 894, 27 L. Ed. 764 (1883), for the later chapter. Commissioners were appointed by New Jersey in 1806 and again in 1824, followed by similar action of New York, to negotiate a settlement. Their efforts were unavailing. In 1828 the New Jersey Legislature directed the Attorney-General to institute legal proceedings in the United States Supreme Court. The bill filed in that court (in 1829) alleged, inter alia,
"* * * the State of New Jersey is justly and lawfully entitled to the exclusive jurisdiction and property of and over the waters of the Hudson, from the forty first degree of latitude, to the bay of New York, to the filum aquae or midway of the said river; and to the midway or channel of the said bay of New York, and the whole of Staten-Island Sound, together with the land covered by the water of the said river, bay and sound in the like extent." (P. 22, Bill to Settle Boundary, etc., New Jersey Boundary Line Pamphlets, (State Library).)
The case was never adjudicated on the merits. In 1833 New York again appointed commissioners, as did New Jersey, and agreement was finally reached. The accord was ratified and confirmed by both states in February 1834, and approved by the United States Congress in June 1834. 4 Stat. 708 (1834).
The Compact (R.S. 52:28-1 et seq.) contains eight articles. The decision here turns upon a construction of Article III, but in order to understand what the Compact sought to accomplish the following articles are set forth:
Article I. (This article concerns territorial boundary)
"The boundary line between the states of New York and New Jersey, from a point in the middle of Hudson river, opposite the point on the west shore thereof, in the forty-first degree of north latitude, as heretofore ascertained and marked, to the main sea, shall be the middle of the said river, of the bay of New York, of the water between Staten island and New Jersey, and of Raritan bay, to the main sea, except as hereinafter otherwise particularly mentioned."
Article III. (This article concerns extra-territorial jurisdiction of New York.)
"The state of New York shall have and enjoy 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, subject to the following rights of property and jurisdiction of the state of New Jersey, that is to say that:
1. The state of New Jersey shall have the exclusive right of property in and to the land under water, lying west of the middle of the bay of New York and west of the middle of that part of the Hudson river which lies between Manhattan island and New Jersey.
2. The state of New Jersey shall have the exclusive jurisdiction of and over the wharves, docks and improvements made and to be made on the shore of the said state, and of and over all vessels aground on said shore, or fastened to any such wharf or dock, except that the said vessels shall be subject to the quarantine or health laws, and laws in relation to passengers of the state of New York, which now exist or which may hereafter be passed.
3. The state of New Jersey shall have the exclusive right of regulating the fisheries on the westerly side of the middle of the said waters; provided, that the navigation be not obstructed or hindered." (Emphasis supplied.)
Article V. (This article concerns extra-territorial jurisdiction of New Jersey.)
"The state of New Jersey shall have and enjoy exclusive jurisdiction of and over all the waters of the sound between Staten island and New Jersey, lying south of Woodbridge creek, and of and over all the waters of Raritan bay, lying westward of a line drawn from the lighthouse at Prince's bay to the mouth of Matavan creek, subject to the ...