(209 U. S. 473)

CENTRAL RAILROAD COMPANY OF, given by the supreme court. 72 N. J. L NEW JERSEY, Plff. in Err.,

States-compacts as to boundary waters-taxation of bed.

311, 61 Atl. 1118. The plaintiff in error contended that, as New Jersey had not the right to tax, the attempt was to deprive the prosecutor of its property contrary to the 14th Amendment, and brought the case here.

The decision depends upon the construction of an agreement made between New Lands lying between the middle of New Jersey and New York for the purpose of York bay and the low-water line on the New settling the territorial limits and jurisdicJersey shore are taxable by New Jersey, not- tion of the two states, which previously had withstanding the provisions of a compact been the subject of dispute. This agreement between the states, fixing the boundary line as the middle of New York bay, approved the purpose, was confirmed by New York on was made by commissioners appointed for by Congress by act of June 28, 1834 (4 Stat. at L. 708, chap. 126), by which New York February 5, 1834 (Laws of 1834, chap. 8, is given "exclusive jurisdiction of and over P. 8), and by New Jersey on February 26, all the waters of the bay of New York," and 1834 (Laws of 1834, p. 118), and was ap"of and over the land covered by the said proved by Congress by act of June 28, 1834, waters to the low-water mark" on the New chap. 126. 4 Stat. at L. 708. By article Jersey side, subject to the exclusive right 1, the boundary line between the two states of property in New Jersey "in and to the from a point above the land in dispute is land under water lying west of the middle of the bay," and to her exclusive jurisdic- to be the middle of the Hudson river, of the tion over wharves, docks, and improvements bay of New York, of the water between made, or to be made, on her shore, and to Staten island and New Jersey, etc., "exher exclusive right to regulate the fisheries cept as hereinafter otherwise particularly on the west of the middle of said waters. mentioned." By article 2, New York retains its present jurisdiction over Bedlow's and Ellis islands, and exclusive jurisdiction over certain other islands in the waters

[No. 203.]

Argued April 15, 16, 1908. Decided April mentioned. By article 3, New York is to

IN

27, 1908.

have "exclusive jurisdiction of and over all the waters of the bay of New York, and of N ERROR to the Court of Errors and and over all the waters of the Hudson river Appeals of the state of New Jersey to lying west of Manhattan island and to the review a judgment which affirmed a judg-south" of the above-mentioned point, "and ment of the Supreme Court of that state, sustaining, on certiorari, taxes levied upon lands lying between the middle of New York bay and the low-water mark on the New Jersey shore. Affirmed.

See same case below, 72 N. J. L. 311, 61 Atl. 1118.

of and over the land 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: 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 Mr. Warren Dixon for defendants in er- and New Jersey." 2. New Jersey is to have exclusive jurisdiction over wharves, docks, and improvements made or to be made on

The facts are stated in the opinion. Messrs. Frank Bergen, William D. Edwards, and George Holmes for plaintiff in

error.

ror.

Mr. Justice Holmes delivered the opin- its shore, and over vessels aground or fasion of the court:

This is a writ of error prosecuted to review a judgment sustaining taxes levied by Jersey City upon lands of the plaintiff in error, lying between the middle of New York bay and its low-water line on the New Jersey shore. It is argued that this land, although it belonged to New Jersey until conveyed, is not within its jurisdiction, and cannot be taxed under the authority of that state. The supreme court upheld the tax (70 N. J. L. 81, 56 Atl. 239), and its judgment was affirmed by the court of errors and appeals, for the reasons

tened there, subject to the quarantine and, passenger laws of New York. 3. New Jersey is to have the exclusive right of*regulating the fisheries on the west of the middle of said waters, providing that navigation be not obstructed or hindered.

The other articles need but brief mention. Article 4 gives New York "exclusive jurisdiction" over the waters of Kill van Kull "in respect to such quarantine laws and laws relating to passengers as etc., and for executing the same," and over certain other waters. Article 5 gives New Jersey exclusive jurisdiction over certain other

$479

was

its face simply to be intended to preserve the status quo ante, whatever it may be.

Throughout nearly all the articles of the agreement, other than those in controversy, the word "jurisdiction” obviously is used in a more limited sense. The word has occurred in other cases where a river was a boundary, and in the Virginia compact was held to mean, primarily at least, jurisdictio,

waters, subject to New York's exclusive, confirmed by the judgment delivered by property and exclusive jurisdiction over one of the commissioners in State v. Babwharves, docks, and improvements within cock, 30 N. J. L. 29. Again, as certain limits, and exclusive right of regu- pointed out by the state court, the oftenlating the fisheries on its side, as above in expressed purpose of the appointment of the case of New Jersey. Articles 6 and 7 the commissioner and of the agreement to provide for the service of criminal and civil settle the territorial limits and jurisdiction process of each state on the waters within must mean, by territorial limits, sovereignthe exclusive jurisdiction of the other. ty, and by jurisdiction something less. It is Article 8 and last calls for the confirmation suggested that jurisdiction is used in a of the agreement by the two states and ap- broader sense in the second article, and that proval by the Congress of the United States. may be true so far as concerns Bedloe's and Thus, the land which has been taxed is Ellis islands. But the provision there is on the New Jersey side of the boundary that New York shall retain its "present" line, but under the "exclusive jurisdiction" | jurisdiction over them, and would seem on of New York, subject to the exclusive right of property in New Jersey, and the limited jurisdiction and authority conferred by the paragraphs summed up. The question is, Which of these provisions governs the right to tax? It appears to us plain on the face of the agreement that the dominant fact is the establishment of the boundary line. The boundary line is the line of sovereignty, and the establishment of it is not satisfied, but is contradicted, by the suggestion that the agreement simply gives the ownership of the land under water on the New Jersey side to that state as a private owner of land lying within the state of New York. On the contrary, the provision as to exclusive right of property in the compact between states is to be taken primarily to refer to ultimate sovereign rights, in pursuance of the settlement of the territorial limits, which was declared to be one purpose of the agreement, and is not to be confined to the assertion and recognition of a private claim, which, for all that appears, may have been inconsistent with titles already accrued, and which would lose significance the moment that New Jersey sold the land. We repeat that boundary means sovereignty, since, in modern times, sovereignty is mainly territorial, unless a different meaning clearly appears.

It is said that a different meaning does appear in the article (3) that gives New York exclusive jurisdiction over this land as well as the water above it. But we agree with the state courts that have been called on to construe that part of the agreement, that the purpose was to promote the interests of commerce and navigation, not to take back the sovereignty that otherwise was the consequence of article 1. This is the view of the New York as well as of the New Jersey court of errors and appeals, and it would be a strange result if this court should be driven to a different conclusion from that reached by both the parties concerned. Ferguson v. Ross, 126 N. Y. 459, 463, 27 N. E. 954; People v. Central R. Co. 42 N. Y. 283. This opinion is 28 S. C.-38.

authority to apply the law to the acts of men. Wedding v. Meyler, 192 U. S. 573, 584, 48 L. ed. 570, 575, 66 L.R.A. 833, 24 Sup. Ct. Rep. 322. Whether, in the case at bar, some power of police regulation also was conferred upon New York, as held in Ferguson v. Ross, need not be decided now. That New Jersey retained the sovereignty, * however, seems to be assumed in article 3 (2), giving her exclusive jurisdiction over wharves, docks, and improvements, made and "to be made," on the shore. This does not grant the right to make such improvements, but assumes it to exist. But the right would need the permission of New York, except on the hypothesis that New Jersey had sovereign power over the place.

The conclusion reached has the very powerful sanction of the conduct of the parties and of the existing condition of things. See Moore v. McGuire, 205 U. S. 214, 220, 51 L. ed. 776, 777, 27 Sup. Ct. Rep. 483. The decisions of the courts have been referred to. It was admitted at the bar that the record of transfers of such lands was kept in New Jersey, not in New York. New York never has attempted to tax the land, while New Jersey has levied more or less similar taxes for many years without dispute. See, e. g., State, Coles, Prosecutor, v. Platt, 24 N. J. L. 108, 120; State, Bentley, Prosecutor, v. Sippel, 25 N. J. L. 530; State, Morris Canal & Bkg. Co., Prosecutor, v. Haight, 35 N. J. L. 178, s. c. 36 N. J. L. 471. New Jersey, not New York, regulates the improvements on the shore. March 18, 1851, P. L. 1851, p. 335; Rev. 1877, p. 1240; act of April 11, 1864, P. L. 1864, p. 681; March 31, 1869, P. L. 1869,

Act of

The crime for which plaintiff in error was indicted was committed after the grand

p. 1017; 3 Gen. Stat. 2784, 2786; New York, | of the United States, in that his motion to L. E. & W. R. Co. v. Hughes, 46 N. J. L. 67. quash the indictment was denied, a plea in Without going into all the details that have abatement overruled, and that he was rebeen mentioned in the careful and satis- quired to answer the indictment. factory discussion of the question in the state courts, we are of opinion that the land in question is subject to the sovereign-jury was impaneled, and two of its memty of the state of New Jersey, and that the exclusive jurisdiction given to the state of New York does not exclude the right of the Sovereign power to tax. Judgment affirmed.

(209 U. S. 467)

FREDERICK LANG, Plff. in Err.,

V.

STATE OF NEW JERSEY.

Constitutional law-equal protection of

the laws-discrimination.

A person indicted for a crime committed after the grand jury was impaneled is not denied the equal protection of the laws because he is precluded from raising the objection that two of the grand jurors were over the age fixed by New Jersey Laws 1876, p. 360, c. 196, under which objections on that ground must be made before the jury is sworn, where the object sought to be attained by the statute, according to the view adopted by the state court, was to make the grand jury a more efficient instrument of justice, and not to benefit any particular de

fendant or class of defendants.

bers were over the age of sixty-five years. The object of his motion and plea was to avail himself of the limitation of age of grand jurors prescribed by the statutes of the state, and avoid that part of the section which provides that the exception on that ground must be taken before the jury is sworn.t

This provision, plaintiff in error contends, as applied by the courts of the state, separates criminal defendants into classes; to wit, those who are accused before the finding of the indictment, and those who are accused afterwards; giving to the first a privilege of challenge which is denied to the second. And it is contended that there is no substantial reason for the classifica. tion, and, therefore, the provision of the 14th Amendment which secures to all persons the equal protection of the laws is violated.

The court of errors and appeals met this contention by denying that the statute made the classification asserted. The court observed that the contention rested "fundamentally upon the proposition that the right to have a grand juror discharged upon the statutory grounds stated in § 6 of the jury act is for the benefit or protection of a particular class of persons," whom, the court said, "to avoid constant paraphrase," it would "call putative criminals." And "putative criminals," the court defined to

+That every person summoned as a grand juror in any court of this state, and every petit juror returned for the trial of any action or suit of a civil or criminal nature, shall be a citizen of this state, and resident within the county from which he shall be taken, and above the age of twenty-one and under the age of sixty-five years; and if any person who is not so qualified shall be summoned as a grand juror, or as a juror on the trial of any such action in any of the courts of this state, or if any person shall be summoned as a petit juror at any stated term of any court of this state, who has served as such at any of the three stated terms next preceding that to which he may be summoned, it shall be good cause of challenge to any such juror, who shall be discharged upon such challenge being oath of affirmation in support thereof; proverified according to law, or on his own vided, that no exception to any such juror on account of his citizenship or age, or any other legal disability, shall be allowed after he has been sworn or affirmed. [Laws 1876, P. 360.]

469

be all who actually committed crime be- But this proceeds upon a misconception fore the grand jury had been sworn, or who of the purpose of the statute, as was pointed were charged or suspected, or, being wholly out by the court of errors and appeals, and innocent, were ignorant of the fact that of the power of the state. they were suspected, as well as those who were charged with the crime during the sitting of the grand jury. But to none of these, the court said, was the protection of the statute addressed; that its purpose was the "furtherance of the due and efficient administration of justice for the of those against whom crimes might be committed, as well as those who might be charged with the commission of such crimes." The object sought to be attained, it was further said, by the disabilities expressed in the statute, "was to secure an efficient and representative body of citizens to take part in the due administration of the law for the benefit of all who were entitled to its protection, and not specially or even primarily for the benefit of those who were charged with its violation."

* Let it be granted, in deference to the argument of counsel, that the statute makes accused of two classes,-those who are crime and those that may be accused,-there is certainly no discrimination within the classes, and the only question can be whethprotectioner, in view of the purpose of the statute, is the classification justified? In other words, whether the persons constituting the classes are in different relations to the purpose of the law. That they are, we think, is obvi ous; and, as we have said, the law neither offers nor withholds substantial rights. It constitutes one of its instrumentalities of persons having certain qualifications which cannot affect essentially the charge against, or the defense of, any defendant. the conception of the state that a grand jury so constituted would be more efficient in the administration of justice than one not so constituted, but that there would be counteracting disadvantages if the right of challenge should be extended beyond the date of the empanelment of the jury. We think it is competent for the state to have so provided.

This we accept as the proper construction of the statute, and see no unconstitutional discrimination in it. It is to the effect that certain qualifications have been deemed advisable in order to make the grand jury a more efficient instrument of justice, qualifications which have no relation to any particular defendant or class of defendants. And the practical is regarded. Objection may be taken before a jury is sworn, but not afterwards; and the statute uses for its purpose the prosecutor of pleas, those who stand accused of crime, and even, the court says, an amicus curiæ. A grand jury thus secured will have all the statutory qualifications in most cases for all defendants; and, besides, the discrimination is very unsubstantial, as was pointed out in Gibbs v. State, 45 N. J. L. 382, 46 Am. Rep. 782.

It is

It will be observed that the provision of the statute is that no exception to a juror "on account of his citizenship or age or any other legal disability [italics ours] shall be It is allowed after he has been sworn." hence contended that "the principle of the decision" under review is not limited to the The court "statutory disqualifications." said, however: "Whether the words of the statute, 'any other disability,' include the common-law grounds of prejudice, malice, and the like, and, if so, what would be the rights and remedies of an indicted person who had had no opportunity to challenge a given juror upon these personal grounds, is not involved in the facts of the present case, or in the line of reasoning upon which, in our judgment, its decision should be placed." In connection with this comment see Lee v. New Jersey, 207 U. S. 67, ante, 22, 28 Sup. Ct. Rep. 22. Judgment affirmed.

Counsel has not been able to point out what prejudice results to defendants from the enforcement of the statute. He urges a verbal discrimination, and invokes the 14th Amendment against it. The statute, he in effect says, fixes the limit of service at twenty-one and sixty-five years, and confesses the latter is "somewhat early," but seeks to sustain his contention as follows: "And though it may not be possible in any case to show that the fact of the juror being above the lawful age has worked injustice to the defendant, he is not required J. G. BOGARD, J. H. Simpson, H. Y. Hoo to show it. It is enough that a statute has been transgressed which was enacted, in some measure, at least, for his benefit. The F. H. SWEET, J. L. Sweet, Leon S. Herd, due observance of that statute is part of

celation.

ver, et al., Appts.,

V.

et al.

(209 U. S. 464)

the protection of the laws, to which, equal-Cloud on title-recorded deed — canly with all others in like circumstances, he is entitled under the guaranty of the 14th Amendment."

A cloud on the title of the owner of land in Greer county, Oklahoma, under patent

*472

from the United States, created by the record of a deed previously executed by him while he was claiming ownership under a Texas patent, in pursuance of an arrange ment whereby the grantees were to sell the land and to collect certain notes for the purchase price of property which the grantor had already sold, and to turn over two thirds of the proceeds to the grantor, retaining one third for their commissions, will be removed and the deed canceled, where the project was abandoned and the deed was returned to the grantor, together with the

notes.*

[No. 156.]

notes, handing over to Sweet two thirds of the amount collected on them.

The ar

The parties with whom Sweet made this arrangement were members of the Mangum Star Printing & Publishing Association, a partnership located at Mangum. rangement, evidenced by the deed and the agreement, had for its object the building up of that town, the parties, as stated, with whom Sweet contracted, receiving, as compensation for their services, one third on the sales of lots, and a like proportion of the proceeds of any notes collected by them. There was no other consideration for the arrangement. The absolute title to the lots

Submitted March 6, 1908. Decided April was put in Bogard and his associates for

A

27, 1908.

PPEAL from the Supreme Court of the Territory of Oklahoma to review a decree which affirmed a decree of the District Court of Greer County, in that territory, removing a cloud on title created by the record of a deed, and canceling such deed.

Affirmed.

See same case below, 17 Okla. 40, 87 Pac.

669.

The facts are stated in the opinion. Messrs. John W. Shartel, James R. Keaton, and Frank Wells for appellants. Mr. Charles M. Thacker for appellees.

Mr. Justice Harlan delivered the opinion

of the court:

There can be no doubt upon this record, confused though it be, as to the real nature of the present case.

purposes of convenience; namely, that they might the more easily effect sales of the property. The situation was accurately described by the supreme court of the territory of Oklahoma when it said: "The record discloses that, at a date when Greer county was claimed to be a part of and under the jurisdiction of the state of Texas, H. C. Sweet purchased the land in controversy from that state, and, while claiming the same under such title, platted it into town lots, which became, and were, at the time of the action, a part of the townsite of the city of Mangum. H. C. Sweet, desiring to aid in the upbuilding of a newspaper and the town generally, entered into a contract with the defendants in error, and others, to allow the plaintiffs in error to sell his townsite property, and to collect certain notes which he then had, for property by him theretofore sold, the understanding and agreement being that, in order to facilitate the business, the plaintiffs in error were to form a corporation for the purpose of running the newspaper and selling the real estate, it being agreed that the corporation should sell the property, and collect the notes, and pay to Sweet two thirds of the amount of the sales, and retain one third thereof as their commission. As a matter of convenience, in the carrying out of the contract, a deed was made by Sweet and wife to all of the property. Afterwards an attempt was made to form the corporation. There being no law in Texas under which such a corporation could be formed, that portion of the scheme failed; and, as shown by the record, the project was dropped by almost all, if not entirely all, of the parties connected therewith, and the deed, although recorded, was returned to Sweet, together with the notes." [17 Okla. 41, 87 Pac. 669.]

The substantial facts are these: In December, 1890, one Sweet, claiming to be owner of certain town lots covered by a patent to him from the state of Texas, of date December 10th, 1885, conveyed the same by deed (his wife uniting with him) to J. G. Bogard and other named persons. The lots were in the town of Mangum, which was in what is now Greer county, Oklahoma. The deed, which was recorded, was with warranty and absolute upon its face. On the same day, at the same time, a written agreement was entered into between, substantially, the same parties. That agreement referred in terms to the deed, and bound the grantees therein to sell the lots, collect the proceeds of sale, and, out of the gross receipts in cash received and collected on such sales, as soon as collected, two thirds to Sweet and his wife. The agreement recites that Sweet had transferred to the other parties a large number of promissory notes which Sweet had taken for purchase money due on certain town lots previously sold by him. Bogard and his associates by the agreement bound themselves to use due diligence to collect the *Ed. Note-For cases in point, see Cent. Dig. vol. 41. Quieting Title, §§ 18, 20.

pay over

As already indicated, at the time the above arrangement was made it was supposed by some that Greer county was part of the state of Texas. For many years, indeed, from the time of its admission into

465