For affirmance -- Chief Justice Weintraub, and Justices Heher, Wachenfeld, Burling, Jacobs, Francis and Proctor. For reversal -- None. The opinion of the court was delivered by Francis, J.
[26 NJ Page 120] 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. 2 A:112-1. 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., 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.
"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. 52:28-35. 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.
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 (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 ...