Legislative Document
No. 103
17
B 383079
STATE OF NEW YORK
PROGRESS REPORT
New York, New Jersey Port and
Harbor Development
Commission
Appointed under Chapter 426, Laws of 1917, State of New York
Appointed under Chapter 130, Laws of 1917, State of New Jersey
WILLIAM R. WILLCOX, Chairman
BUGENE H. OUTERBRIDGE
GEORGE W. GOETHALS
Chief Consulting Engineer
JULIUS HENRY COHEN, Counsel
J. SPENCER SMITH, Vice-Chairman
DE WITT VAN BUSKIRK
FRANK R. FORD
WILLIAM LEARY, Secretary
B. F. CRESSON, Jr., Consulting Engineer
C. A. RUHLMANN; Asst. Secretary
ALBANY
Exchange Duplicate, L. S
J. B. LYON COMPANY, PRINTERS
1919
Det
Vivo E.
Legislative Document
No. 103
STATE OF NEW YORK
HE
554
N7
A5
1919
PROGRESS REPORT
New York, New Jersey Port and
Harbor Development
Commission
Appointed under Chapter 426, Laws of 1917, State of New York
Appointed under Chapter 130, Laws of 1917, State of New Jersey,
WILLIAM R. WILLCOX, Chairman
EUGENE H. OUTERBRIDGE
GEORGE W. GOETHALS
Chief Consulting Engineer
JULIUS HENRY COHEN, Counsel
J. SPENCER SMITH, Vice-Chairman
DE WITT VAN BUSKIRK
FRANK R. FORD
WILLIAM LEARY, Secretary
B. F. CRESSON, Jr., Consulting Engineer
C. A. RUHLMANN, Asst. Secretary
XCELSIOR
ALBANY
J. B. LYON COMPANY, PRINTERS
1919
06-34-3/VPIC
UNIVERSITY OF CHICAGO
LIBRARIOS
266892
MARCH 1930
STATE OF NEW YORK
EXECUTIVE CHAMBER,
APRIL 14, 1919.
To the Legislature:
I have the honor to transmit to you herewith the Progress
Report of the New York, New Jersey Port and Harbor Develop-
ment Commission,
ALFRED E. SMITH.
USK
NOV 20 1919
HE
554
.NT
A5
1919
PROGRESS REPORT
To HON. ALFRED E. SMITH,
NEW YORK, April 8, 1919.
Governor of the State of New York;
HON. WALTER E. EDGE,
Governor of the State of New Jersey.
DEAR SIRS. Two years ago the Legislatures and Governors of
New York and New Jersey made possible a joint study of the
Port of New York by the creation of the New York, New Jersey .
Port and Harbor Development Commission. It was recognized
then that the development of the Port was the concern of all of
both States, serving as it does as an outlet for so much of the trade
of the two States, and supplying so many of the necessities of life.
It was seen, too, that the old method of development, with each of
some fifty municipalities striving to solve the problems of the Port
in its own way or utterly disregarding the fact that it had any
place or part in solving the problems of the Port, was failing
utterly.
Blessed with the finest harbor on the Atlantic seaboard, and an
abundance of trunk-line railroads, the communities have grown
by leaps and bounds, and the Port of New York has long handled
substantially half the foreign commerce of the country. But the
trade of these communities, coming faster, almost, than it could be
assimilated, has been accommodated in accordance with the
immediate need, without any general direction. Haphazard
facilities and methods have become institutions, as have make-
shifts built around them to meet new contingencies. The result is
patchwork. Obviously this has prevented the best use being made
of the natural advantages of the Port.
At the same time the Port as a whole has long suffered the
handicap of a differential freight rate in favor of other ports. In
[5]
6
REPORT OF PORT AND HARBOR COMMISSION
recent years, too, the other ports have launched a campaign to get
more of New York's business. The combination of circumstances
has been effective, and New York's commerce has begun to slip
away. And while this slipping away is slow at present, there are
unmistakable indications that the campaign of the other ports has
just begun.
It is not merely a local misfortune that this condition has come
about. New York has become the established gateway between
the United States and foreign countries. Now of all times, when
the nation has the opportunity to win a much larger share of the
world's commerce, when the world has greater need than ever
before for what we can give it from our boundless resources, there
should be no disorganizing of established trade routes such as
would follow further diversion of trade to other ports. It is to be
hoped that our foreign trade will soon tax the capacity of the
facilities at all of our ports. Certainly neither New York, New
Jersey nor the country at large can afford to permit. New York to
fall behind and see her trade drawn from its natural channel.
The New York, New Jersey Port and Harbor Development
Commission, created to study the needs of the Port as a whole, is
deeply impressed with its responsibility -that of devising a plan
that will meet the present situation and provide liberally for
future trade. It has already assembled a large amount of data.
The task of determining the volume, method of handling and cost
thereof of all traffic coming to, originating in or passing through
the Port, which is the first phase of the investigation, is 70 per
cent completed, and the analysis to date seems to point to certain
definite conclusions. The Commission refrains from presenting
those conclusions because data yet to come may modify them,
because all of the elements of the final plan and recommendations
must dovetail and because with the recommendations must be
proof of their economic soundness. Within a few months the Com-
mission expects to have the complete picture and analysis of exist-
ing conditions. It can then concentrate on what it has in fact
already begun, the development of the final plan, and a year from
now the final report should be completed.
The Commission has felt that whatever plan is evolved there
must be provision made for supervising and directing the execu-
REPORT OF PORT AND HARBOR COMMISSION
7
tion of the plan. Hence the Commission prepared and urged upon
Your Excellencies and the leaders of the two Legislatures early
this year the adoption of a supplementary and amendatory compact
between the two States creating a permanent "Port of New York
District" and "Port of New York Authority." Owing to obsta-
cles that have arisen legislative action has as you are aware been
deferred until next year. The matter is reviewed at some length
beginning page 39.
REVIEW OF 1918 REPORT
Facts as to the organization of the Commission are set forth in
the Preliminary Joint Report, dated January 26, 1918, and trans-
mitted to the Legislatures of New York and New Jersey February
18, 1918.
This report recites how the Commissions, of three members each,
appointed in 1917 by the Governors of New York and New Jersey
respectively, have organized a joint commission, the chairman
being a member of the New York Commission and the vice-chair-
man a member of the New Jersey Commission - the purpose of
the investigation, as set forth by the acts of the two Legislatures,
being to make an "investigation of the Port conditions at the Port
of New York and to submit a comprehensive report recommending
the proper policy that shall be pursued for the best interests of the
entire Port of New York, and the legislation, State and Federal,
that will be necessary to make such recommendations effective."
The report of a year ago relates how the Joint Commission held
meetings and conferences in 1917 with members of the Public
Service Commission of New York, the Port and Terminal Facili-
ties Committee of the Board of Estimate and Apportionment and
the Commissioner of Docks of New York City, the New Jersey
Board of Commerce and Navigation, the New York State Barge
Canal Board, the presidents of the trunk-line railroads and various
representatives of shipping, lighterage and warehouse businesses,
together with engineering and legal experts of this and other ports.
It tells of inspections of the harbor, of studies of the West Side
railroad terminal problem in Manhattan, of the organization at
the Commission's suggestion of the War Board for the Port of
New York, of other co-operation with the Federal Government.
REPORT OF PORT AND HARBOR COMMISSION
A decision of the Interstate Commerce Commission in the New
York Harbor case is referred to, wherein that body states that
"historically, geographically and commercially New York and the
industrial districts in the northern part of the State of New Jersey
constitute a single community," and commends the creation of
this Joint Commission.
The report bounds that single community by Yonkers and New
Rochelle on the north, Great Neck and Far Rockaway on the east,
Perth Amboy and Sandy Hook on the south, Paterson, Newark
and New Brunswick on the west.
Necessity for Port Plan
Emphasis is laid in the report on the necessity for a definite
Port policy and plan, with such comparison between the present
methods of operation and whatever new methods may be recom-
mended as will afford proof of the economic soundness of the plan
and methods recommended.
Many studies and reports on phases of the problem have been
made, as the Commission stated in its 1918 report, and the Com-
mission promised to give them careful consideration. At the same
time it pointed out that there is a great diversity of interests
involved extending into two States and about fifty municipalities,
that no comprehensive plan for the entire metropolitan district
has ever been made, and that none of the studies and reports
referred to have been supported by evidence, statistics or exact
analysis of income, cost of operation and net return on the pro-
posed investment in order to justify their economic soundness.
The Commission stated, in its 1918 report, its purpose to ascer-
tain the volume, route, classification and time of transit of all
freight movements in the metropolitan district, together with the
cost of handling this freight under normal conditions and with
existing facilities. This, it stated, would require detail con-
sideration of many factors and a complete survey on the ground
for an extended period of the principal lines of rail and water
deliveries.
To arrive at the carrying charges of the present capital invest-
ment and of the new capital required for additional facilities, the
Commission pointed out that an approximate appraisal of the
REPORT OF PORT AND HARBOR COMMISSION
9
value of existing facilities would be necessary. Such a valuation,
it was noted, would have to be available sooner or later if the States
should determine that the harbor waterfront was to be publicly
owned.
In addition to the preparation of the engineering, operating and
financial plans, the report contended that there must be prepared
a legal plan for combining the present distributed Federal, State
and local powers of administration and construction.
Extent of Investigation
Finally, the report stated that it would take two years to com-
plete the study, at an estimated cost of $400,000. The specific
recommendations of the Commission were "that the study con-
templated in the legislation creating the Commission and outlined
in this report be undertaken, and the report prepared, and to that
end the two States of New York and New Jersey appropriate
$400,000 in equal payments covering a period of two years.
""
The Legislatures, recognizing the importance of studying and
preparing a plan and policy for the Port of New York, appro-
priated $100,000 each to cover half of the program. Both appro-
priations became available July 1, 1918.
In its pursuit of the investigation the Commission has found no
reason to revise the estimate of a year ago as to the scope of the
work, its probable cost and its probable duration. The problem
met in the detail execution of the analysis, the difficulties to be
overcome, the inevitable delays, have proved about as forecast in
the 1918 report. Progress to date indicates that with the remain-
ing $200,000 made available the Commission will have its final
report and recommendations completed within the two-year period,
so that it may be laid before the Legislatures a year from now.
Meanwhile the Commission has worked out a definite program
for the investigation, has built up an engineering organization of
about seventy persons, since funds therefor became available in
July, 1918, and has already accumulated a mass of important
data bearing upon the present operating conditions at the Port.
The Commission does not deem it wise to make definite recom-
mendations at this time relative to any specific problems, believing
it best to have the complete picture of existing conditions so that
10
REPORT OF PORT AND HARBOR COMMISSION
all changes proposed may be co-ordinated. But it has recognized
the urgency of some of the problems, has given them special atten-
tion, and believes it sees now where the solutions lie.
Arthur Curtiss James, one of the New York members of the
Commission, resigned December 31, 1918. Up to that time he
took an active part in the work of the Commission, and his fellow
members take this occasion to express their sincere appreciation
of his interest and co-operation, and their regret that they no
longer have the benefit of his judgment in the matters that come
before them. His place has not yet been filled.
ENGINEERING INVESTIGATION
On April 30, 1918, in the absence of Major-General George W.
Goethals, chief consulting engineer of the Commission, the con-
sulting engineer was placed in charge of the engineering work.
About June 1, 1918, the Commission rented the eleventh floor
of the building at 12-16 John street, New York, as its working
engineer office.
The engineering investigation resolved itself into three phases:
1. Study of existing conditions.
2. Analysis of the handling of commerce under existing con-
ditions.
3. Planning of new methods and facilities.
Phases 1 and 2 are being worked out together. As previously
stated, it is felt that a full knowledge of existing conditions and
costs is essential to the rational planning of changes.
Investigation of existing conditions divides the problem into
four major headings - railroads, steamship, lighterage, and truck-
ing. In addition there are numerous incidental elements in the
problem, some of them, such as the matter of markets and food
distribution, being of the highest importance.
Organization of Work
Originally the Commission intended to employ outside engineer-
ing organizations to conduct the investigations, so as to obtain as
nearly as possible a simultaneous picture of all of the operations
of the Port. But it was perceived that this would require a large
REPORT OF PORT AND HARBOR COMMISSION
11
number of men and entail great difficulty in instructing them.
To get the railroad picture alone, for example, would have taken
about one thousand men. Hence the consulting engineer recom-
mended that he be authorized to organize a force to do this work
himself and his recommendation was accepted.
An experienced railroad man was obtained on leave of absence
for the period of the investigation, and was put in charge of the
main investigating force, with the title of railroad engineer. A
force of twenty-four men was assembled quickly and divided into
three squads of eight men each. On July 23, 1918, they began
taking twenty-four-hour or twelve-hour observations of the rail-
road operations at all yards and pier stations. This force, which
was subsequently increased, completed its railroad observations
early this year. It was then divided up, the two sections starting
the steamship and the trucking investigation simultaneously. An
advantage of the continuing force was that it became increasingly
familiar with the character of information needed and much time
that would have been required for instructing four individual
organizations was saved. The steamship field work has been vir-
tually completed, a smaller force can complete the trucking and
lighterage investigations,― the latter being covered in large meas-
ure by the railroad survey- and therefore on April 1 the field
force was materially reduced.
Specialists in their line have meanwhile been employed for the
incidental studies: For assembling auxiliary data, interpreting
the information collected and preparing this and other reports a
staff of accountants and statisticians has been assembled. There
has been developed the beginning of a drafting department which
will be expanded when the time arrives to work out a general plan
for the Port.
On March 1 there were sixty-nine members of the engineering
organization, including stenographers, clerks and other assistants.
On April 1 this number was reduced to forty-seven.
Railroads.
Four Major Investigations
Twelve trunk line railroads are involved in the
railroad investigation. They are the Central of New Jersey, the
Lehigh Valley, the Erie, the Delaware, Lackawanna & Western,
12
REPORT OF Port and HARBOR COMMISSION
the Pennsylvania, the West Shore and the New York, Ontario &
Western (the latter having traffic rights on the West Shore) on
the New Jersey shore of the Hudson River, the Baltimore & Ohio
on Staten Island, the New York Central on the west side of Man-
hattan, the New York, New Haven & Hartford in the Bronx, the
Long Island in Long Island City, and the Philadelphia & Read-
ing, which has a coal terminal at Port Reading, north of Perth
Amboy.
The railroad investigation involves the analysis of the break-up
and waterfront yards of each of these railroads, together with a
study of the local terminals and piers for both general merchandise
and special uses along most of the waterfronts of the North, East
and Harlem Rivers; New York, Newark, Raritan and Jamaica
Bays, and the Long Island Sound.
Steamships.
The steamship investigation entails the examina-
tion of steamship operations of all sorts along a great part of these
waterfronts.
Lighterage.
The lighterage investigation involves the study of
the local-waterways transportation system, more highly developed
in New York Harbor than anywhere else in the world, between
ship, car and local consumer or producer.
Trucking.— Trucking is employed mainly as the final or initial
stage of transportation, as the case may be, for the local consumer
or producer. But it is utilized also to a considerable extent in
trans-shipment of goods through the Port. A visit to the district
of lower Manhattan will show that here perhaps is the soundest
basis for the charges of congestion made against the Port of New
York, and will suggest the great importance of the trucking
investigation.
Twenty-three Incidental Investigations
One of the most important of the incidental investigations, and
one deeply involved in the trucking investigation, is that of public
markets and food distribution. Fourteen hundred carloads each
day, it is estimated, are required to feed New York and vicinity.
The present system of distribution ties up a large section of lower
Manhattan's most valuable waterfront, besides filling the North
River with car floats and the streets of lower New York with
REPORT OF PORT AND HARBOR COMMISSION
13
trucks. Whether this is the best system possible or whether a
different plan can be devised to benefit the public without injury
to private interests called for careful study. The Commission has
already gone far into this question, as is set forth elsewhere in
this report, and believes it foresees what the answer will be.
Closely connected with this problem is one of the most acute
problems of the Port- that of the New York Central Railroad's
freight line on the West Side of Manhattan. A discussion of this
also appears elsewhere in the report. A third matter treated at
some length is that of an exterior belt-line railroad in New Jersey.
Criticism has often been made of the mechanical equipment of
New York harbor as compared with that of some of the European
cities, and New York's equipment has been as often defended on
the ground that European methods are not feasible here. Thorough
analysis of New York's system is necessary, and closely allied to
this question are the special problems involved in the handling of
building materials and grain.
The operation of private terminals and of general merchandise
warehouses also have an important bearing on the situation, as do
the provisions, or lack of them, for the utilization by the Port of
the New York Barge Canal.
The disposal of municipal wastes, in view of the fact that the
waters of the metropolitan district are near the danger point from
sewage and other pollution, must be given thorough consideration
in the development of any plan which will tend to impede the dis-
posal of such wastes, or bring population and industries that will
add further pollution.
All these and numerous other elements of the problem are being
studied by the engineers of the Commission.
ERIE TRAFFIC COUNT
The first railroad field investigation made was that of the Erie
Railroad. As the Erie is typical of the New Jersey trunk lines, a
brief outline of the investigation will be of interest here.
The Erie is a double-track low-grade line between New York
and Chicago, with branches to Buffalo, Dunkirk and Cleveland on
Lake Erie, to the anthracite coal field of Pennsylvania and to the
bituminous fields of Pennsylvania and Ohio. It taps the Great
14
REPORT OF PORT AND HARBOR COMMISSION
Lakes ore traffic at Cleveland and runs through the heart of the
steel district at Youngstown, Ohio. It has various other branches.
In all it operates 2,400 miles of road.
Its terminal units at the Port of New York consist of a break-up
and main classification yard at Croxton, on the New Jersey
meadows; an auxiliary classification yard at Little Ferry; water-
front yards with pier and other facilities at Jersey City, Weehaw-
ken and Undercliff; piers on the Manhattan waterfront at Duane
and Houston streets, North River, and at Coenties Slip, East
River; an interior freight station between West 28th and 29th
streets and 11th and 12th avenues; a station in the Wallabout
Market district, Brooklyn; traffic rights at the Harlem terminal
of the Delaware, Lackawanna & Western Railroad at 135th street
and Harlem River; and traffic rights in common with other rail-
roads at other private and public terminals in the harbor.
Terminal Units Examined
As a preliminary the facilities and their functions at each of
these terminal units were examined and recorded. It was noted,
for example, that Croxton yard has a working capacity of 4,708
cars; that nearly all inbound freight comes to it and is classified
according to local destination; that in reverse order outbound
freight is assembled here and classified according to destination;
that facilities exist for reclassifying less than carload freight and
consolidating it in other cars according to destination; that there
are facilities for icing cars and for repairing crippled cars and
trackage for "hold" cars and for interchange with the Delaware,
Lackawanna & Western Railroad.
The yard is a gravity yard with a classification "hump" in
each direction. The operation of the yard has been studied in
detail the number of tracks and the capacities of each unit, the
number of classifications made and the tracks used for each, the
system in effect at the transfer platform.
In like manner preliminary scrutiny showed that the Jersey
City yard is in effect two yards divided by the passenger-train lay-
out, and each yard serving certain piers and other facilities. The
uses, sizes and capacities of each of these facilities were deter-
REPORT OF PORT AND HARBOR COMMISSION
15
mined. Similar information regarding every one of the Erie's
terminal units was obtained.
Making the Counts
Most of the traffic counts covered twenty-four-hour periods, and
the men worked in three shifts of eight men each. At Croxton
yard for each shift one inspector was stationed at the westerly end
of the yard to count trains, engines and cars entering and leaving;
a second was stationed for the same purpose at the easterly end;
a third was assigned to the yardmaster's office to copy train lists;
a fourth took his post at the inbound hump and a fifth at the out-
bound hump to keep account of classifications; a sixth and seventh
were assigned respectively to the transfer platform and the icing
platform, while the eighth, the squad leader, supervised the entire
count and gave assistance where needed.
This count disclosed the total number of cars received inbound
in a twenty-four-hour period and their destination; the number
of cars received from other railroads and their destination; the
number of cars forwarded to each of the waterfront terminals and
to other railroads; the number of outbound cars received and their
origin; the number of outbound cars forwarded and their general
destination; the number of cars passed over each hump; the num-
ber of cars loaded, and a large number of incidental operations.
For the north Jersey City yards one inspector was stationed on
the main classification engine, one at the yardmaster's office, one
at the float bridges and one at each of the lighterage piers. Fewer
cars pass through this yard, hence more detailed data were
obtained. The inbound cars, for example, divided into twenty
groups according to destination. The contents of cars iced were
noted here as at Croxton.
The south Jersey City yard was handled in a like manner. A
separate eight-hour count was made at the milk platform.
The traffic study at Duane street was made on a somewhat
different basis from those at the railroad yards, inasmuch as truck-
ing movements as well as car operations were taken into account.
The census was an eleven-hour operation requiring twenty-four
men divided into two shifts of twelve men each.
16
REPORT OF PORT AND HARBOR COMMISSION
This is one of the typical waterfront freight stations, where the
cars are brought alongside the piers on car floats and unloaded and
reloaded as at the ordinary inland freight station. The system
causes a piling up of trucks waiting to load and unload, and results
in much loss of time to the owners. The traffic count covered not
only the number of car floats and cars received and forwarded, but
also the number of trucks arriving and departing and much
information about where they came from and where they went.
The foregoing merely outlines the method pursued in the rail-
road investigation, and suggests the magnitude of the work and
the mass of valuable information being obtained.
TERMINAL COSTS
Meanwhile the Commission has organized an auditing staff to
into the books of the carriers to determine the tonnages handled
and the costs.
go
Unit costs have already been derived for terminal operations on
four of the trunk line railroads. They are being determined for
1918 on the basis of the actual twenty-four-hour observations, and
for 1914 on the basis of the companies' records for the month of
July, 1914. It was felt that while it was desirable to know the
latest costs obtainable, and the costs of operations actually
observed, it was equally desirable to know the costs under the more
normal conditions prior to the war. July, 1914, was selected as
the most suitable month for determining pre-war costs.
CLASSIFICATION OF TONNAGES
A beginning has recently been made toward a classification of
all tonnages coming to or going from the Port of New York in a
typical pre-war year. As far as possible, the tonnages will be
classified in three ways- by commodities, by point of origin or
destination at the Port, and by general locality of origin or desti-
nation at the other end of the journey. The second classification
will obviously show whether the shipment is to, from or through
the Port of New York. Knowledge of what comes to and goes
from the Port, whence it comes and where it goes, should help
greatly in evolving the general plan.
REPORT OF PORT AND HARBOR COMMISSION
17
SPECIAL INVESTIGATIONS
The special investigations have been grouped under twenty-
three heads as follows:
West Side Railroad, Manhattan
Markets and Food Distribution
Exterior Belt Line, New Jersey
Mechanical Equipment of Harbor
Banking and Commercial Operations
Tariff Charges Rates
-
Stevedoring — Longshoremen
Disposal of Municipal Waste
Handling of Building Material
Conditions at New York Piers
Barge Canal Terminals
Canals and Waterways
Private Terminals
Warehouses
Ferries
Handling of Fuel
Handling of Ice
Handling of Grain
Express Business
Electric Power Supply
Water Supply
Trucking
Channels and Dredging
Pilotage
Some of these special investigations involve much more work
than others, and the studies are in various stages of completion.
Three of the most important of them those covering the West
Side railroad, Manhattan, the system of markets and food dis-
tribution and the exterior belt line in New Jersey are as pre-
viously stated discussed at some length elsewhere in this report.
Some of the others may be briefly outlined here.
Ice. The handling of ice is somewhat allied to the food prob-
lem. An investigator for the Commission has made a canvass of
all of the ice houses along the Hudson River from which New
18
REPORT OF PORT AND HARBOR COMMISSION
York gets most of its natural ice, of the artificial ice plants which
contribute to the city's supply and of the New Jersey ice sources.
Data are being assembled as to the amounts of ice harvested and
manufactured, the methods of distribution and the costs.
Grain. Grain is one of the commodities handled in large
quantities at the Porta commodity that requires special facili-
ties both for local distribution and for exporting. The handling
of grain has been studied at considerable length in the light of
existing facilities, the facilities at competing ports and the general
volume and trend of the grain movement.
Building Materials. The delivery of building materials -
sand, gravel, stone, lime, cement, brick, steel and lumber — in
New York is hampered by a shortage of open wharves, especially
on the West Side of Manhattan below Forty-seventh street and the
East Side below Twenty-third street. There has been no improve-
ment in the methods of handling these materials in thirty years,
and meanwhile the number of open piers available has been cut
down from year to year. This has resulted in longer hauls and
higher costs of delivery. An examination of the waterfront has
been made to determine just what piers and bulkheads are being
used now for the various materials, and what others could be
advantageously put to this use.
Trucking. While trucking constitutes one of the primary sub-
jects for investigation, certain phases of the subject, especially the
question of trucking delays and costs, were given early attention,
and listed as a special investigation, because of the movement made
last year to bring about store-door delivery of freight consigned to
railroad pier stations in Manhattan.
The so-called Harlan plan for store-door delivery, put forth last
summer by Hon. James S. Harlan, member of the Interstate Com-
merce Commission, followed several other plans proposed to remedy
the existing evils of a multiplication of underloaded trucks on the
piers, and the congestion incident to the necessity of giving con-
signees notice of arrival of their goods. The Commission's inves-
tigators looked up and recorded all of the plans, and their evolu-
tion into the Harlan plan.
Three of the investigators also devoted several weeks to traffic
counts at certain typical points, to time studies of individual
REPORT OF PORT AND HARBOR COMMISSION
19
trucks and routes, and to interviews with truckmen and companies
using trucks. One study of special interest was the operations for
six days of a two-horse truck serving a certain drygoods store.
Account was taken of loads carried, time of loading and unload-
ing, time of transit and idle time. The result showed that the
truck carried on the average only 28 per cent of a load, and that
it made only 36 per cent of the distance possible, so that its
efficiency, determined by the product of the two percentages, was
only 10 per cent.
The investigators have also made an extensive study of the ele-
ments in the cost of trucking operations.
Stevedoring. Stevedoring has been studied under two general
heads the equipment available at the Port and the form and
execution of stevedoring contracts. Under the former head data
have been recorded as to the types of machinery utilized and their
form of operation; under the latter the question of stevedoring
rates and costs, and the difficulties of the labor problem.
Barge Canal Terminals.- New York's new Barge Canal was
put into operation last year, and it is desirable to know whether
adequate provision in the way of terminals has been made to enable
the Port of New York to make full use of the possibilities of this
enlarged waterway. Study has been made both of such construc-
tion as has been completed and of plans not yet executed, and later
on the Commission expects to be able to offer plans for additional
terminals.
Canals and Waterways. Along with the study of the possi-
bilities of the New York Barge Canal an examination has been
made of other waterways, existing or contemplated, for barges and
for ships, which might be a factor in the operations of the Port.
This examination embraces several existing canals for small boats
to the west and southwest of the Port; the projected intracoastal
ship canal system from Boston to Florida, of which the proposed
New Jersey ship canal, an enlarged Chesapeake and Delaware
Canal and the Cape Cod Canal would be the most important to
New York; the New Jersey marginal canal (New Jersey Inland
Waterway), and several projected Long Island canals.
Channels and Dredging. An investigation is being made of
the navigable depths of the various harbor waters, the controlling
20
REPORT OF PORT AND HARBOR COMMISSION
•
depths of channels, the obstructions to navigation. The dangerous
reefs in the East River, the channel projects for Jamaica and
Newark Bays, the desirability of deepening the Harlem River
are among the matters being considered in this investigation.
Warehouses. There are more than 600 freight warehouses and
storehouses in New York and New Jersey within the metropolitan
district, exclusive of a large number of houses which handle house-
hold goods only and therefore are of no interest in this investiga-
tion. A questionnaire has been sent out to the owners of all of
these freight houses and in addition an investigator for the Com-
mission has visited most of them and obtained supplementary
information. Practically all of the questionnaires have been filled
out and returned.
Electric Power Supply.— Electricity will undoubtedly be more
and more a factor in the operation of the Port. A record has been
made of every electric power plant in the district — its location,
capacity, ownership, use and other characteristics. The histories
and growth of the different companies have been examined, and
forecasts have been made of the probable supply of and demand
for power in the future.
Water Supply. Analogous to this is the investigation of the
water supply of the Port. Here again a record is being made of
locations, capacities, ownership, uses and other details of water-
sheds, reservoirs, pumping stations, distribution systems and other
elements that go to make up a waterworks system. The water sup-
plies of the cities in New Jersey have already been covered, and
the investigator is collecting similar data for the area east of the
Hudson.
Disposal of Wastes. For a long time the navigable waters of
the metropolitan district have been heavily burdened with sewage
and industrial wastes. Some of this overburden, under present
conditions, passes out to sea quickly, while some, in the land-locked
North and East rivers, surges back and forth with the tides.
Elaborate plans have been promulgated to cope with the situation,
and it is obvious that waterway and waterfront changes which
might affect the tidal conditions and which certainly would have
important bearing on any disposal scheme of the magnitude
required here must take into account this whole problem. This
REPORT OF PORT AND HARBOR COMMISSION
21
would be true if the Port were not to continue to grow. The aim
of the Commission is to devise ways and means to enhance its
growth, and so it becomes doubly necessary to provide for the dis-
posal of the wastes of future population and industries.
The question of whether harbor pollution should come under
the jurisdiction of a joint port authority, if one be created, in the
light of the Passaic Valley Sewerage Commission Case, is dis-
cussed in the section of this report on the proposed treaty. Irre-
spective of how this question should be answered, it is obvious that
this Commission must co-ordinate its general plan with the sewage-
disposal problem.
Of hardly less importance are the problems of the disposal of
garbage and rubbish. Valuable waterfronts are used for dumps,
and many scows are required to handle the Port's refuse. The
methods in use have therefore been studied at some length.
Conditions at New York Piers.- Apart from the general steam-
ship investigation is the question of the uses of New York's piers.
Early last November two investigators were assigned to this work,
and in about five weeks they had covered the railroad piers on the
New York side of North River.
These men have visited each of these piers and noted its size,
equipment and use. They have considered methods of operation
in effect, and recorded practices that interfered with efficiency.
Whether reassignment of piers according to some zoning system
is feasible was one of the objects of the survey. Soundings have
therefore been taken alongside the piers, and a general examina-
tion has been made as to whether they could be put to other uses.
This survey is being continued along the East River and other
waterfrontage of the Port.
Other Investigations.— Among the other special investigations,
that of banking and commercial operations is designed to disclose
the general methods of financing New York's commerce, going
into such questions as credits, exchanges and discounts, and com-
paring them as they exist in New York with those prevalent at
London and other foreign ports in order to determine what burdens
are placed on New York's commerce by reason of financial opera-
tions abroad-what customs exist which interfere with New
York's commerce.
22
REPORT OF PORT AND HARBOR COMMISSION
The private terminal investigation covers such plants as that of
the Bush Terminal Company, the New York Dock Company, the
Brooklyn Eastern District Terminal Company and the Jay Street
Terminal Company. The fuel investigation covers the handling
of fuel both for local delivery and for the bunkering of ships.
The investigation of tariffs and charges aims to determine the
truth or falsity of the claim often heard of undue charges for the
use of harbor facilities.
Thus are outlined some of the special investigations under way.
Some of the subjects have been given little consideration in pre-
vious studies of the Port. All have important bearing if a com-
prehensive plan is to be evolved, and others will perhaps suggest
themselves before the Commission completes its final report.
Tunnels and Other Projects
Vehicular Tunnel Under Hudson River.— A project much in
the public eye at present is the proposed vehicular tunnel under
the Hudson River. The recent marine workers' strikes have
brought forcibly to public attention the possibility of a complete
cutting off of vehicular traffic between New York and New Jersey,
even though in both of these strikes the Lackawanna ferries
remained in operation, and though other ferry service was resumed
after three or four days.
The need for a vehicular connection between the two States,
and the question of whether a bridge or a tunnel should be built,
have been under study for a number of years by a special Joint
Commission created for the purpose. Your Excellencies are aware
of the present situation with respect to the projected tunnel, and
our Commission has not deemed it necessary to make a detailed
study of the tunnel project, or its economic justification. A
vehicular tunnel will assuredly aid in the co-ordination of the
Port, and any plan later evolved by this Commission should be
able to utilize the tunnel to good advantage.
Staten Island Tunnel. Another fact the first of the recent
strikes brought out is the ease with which Staten Island can be iso-
lated. Its only rail connection with the main land is the Baltimore
& Ohio freight line to St. George. There are six ferries, from Man-
REPORT OF PORT AND HARBOR COMMISSION
23
hattan, South Brooklyn, Bayonne, Elizabethport, Carteret and
Perth Amboy respectively — only the first two, it will be per-
ceived, giving direct connection to New York. The Manhattan
ferry is the main dependence of the island, and during the first
day of the strike its boats did not run. The consequent inability
of thousands to reach Manhattan to fulfill their business engage-
inents has revived the demand of the residents of the island for a
tunnel connection.
There are three main possibilities for such a tunnel connection.
The first is the direct tunnel under the Upper Bay to Manhattan.
This is the most direct but also the most expensive. The second
is a tunnel under the Narrows to Brooklyn, connecting with the
transit systems in that borough. This would require a much
shorter tunnel. The third involves a still shorter tunnel, under
the Kill van Kull to Bayonne.
As the Commission is avoiding recommendations prior to the
completion of its picture of present operating conditions, it is not
ready at this time to offer a solution of the Staten Island problem.
Brooklyn Marginal Railway.— For years there has been agita-
tion for a marginal railway in Brooklyn. Special legislation has
been passed to permit the construction and operation of such a
railway from the New York Dock Company's terminal near
Brooklyn Bridge to the Bush Terminal in South Brooklyn.
Various obstacles, however, notably the unwillingness of the trunk-
line railroads while under private operation to co-operate in the
undertaking, have blocked it.
Since the United States Government took over the railroads the
Railroad Administration, through its budget committee, has been
studying the matter further. A plan has been submitted to the
Commission for a line from the Brooklyn Navy Yard up the East
River and Newtown Creek to the Bushwick terminal of the Long
Island Railroad, and the Commission has been over the site of the
proposed line.
The Commission's ultimate findings must certainly cover the
project, but the Commission is not ready as yet to make any
recommendations.
24
REPORT OF PORT AND HARBOR COMMISSION
CO-OPERATION WITH OTHER AGENCIES
Throughout the investigation to date the Commission has sought
to co-operate with and obtain the co-operation of other agencies,
and in this it has been very fortunate. As the 1918 report stated,
the Commission invited and had before it at many of its 1917
meetings the presidents of the trunk-line railroads, the heads of
shipping interests, the heads of terminal companies and various
other interests using the harbor.
Since the Government has taken over the operation of the rail-
roads and other industries the Commission has been in close touch
with the Railroad Administration, the Port and Harbor Facilities
Commission of the United States Shipping Board and the Fuel
Administration.
The Commission early addressed a communication to the Secre-
tary of War, the Secretary of the Navy, the Director General of
Railroads and the chairman of the United States Shipping Board,
requesting that before any construction work was done in the Port
the plans be submitted to the Commission for an expression of
opinion as to whether they would interfere with the carrying out
of a comprehensive Port plan. The authorities in Washington
readily agreed to this. There is now scarcely a week when some
project is not referred to this Commission by the authorities in
Washington for an expression of opinion.
As a point of contact with the Commission the regional director
of railroads has appointed a committee consisting of the managers
of all of the trunk lines entering New York, and the fullest co-
operation has been extended in the way of permission to go upon
the property of the railroads in the field and in the auditors' offices.
In like manner there has been hearty co-operation between this
board and the commissioner of docks of New York City. The
commissioner has readily perceived that the missions of the dock
department and the Joint Commission were quite distinct — that
of the former being to study and prescribe for the immediate needs
of New York City, that of the latter to fit such new construction
or changes in the mode of operation as are adopted into the ulti-
mate plan, and offer objection only in case of seeming conflict with
the ultimate requirements of the Port as a whole. The commis-
sioner has therefore appeared before this Commission, submitted
REPORT OF POET AND HARBOR COMMISSION
25
:
various plans to it and in other ways shown his desire to help the
Commission in its work, and the Commission hopes it has also
been of some service to him.
NEW YORK AS A PORT
New York is by far the greatest railroad, commercial and indus-
trial center on the Atlantic seaboard.
The population of the metropolitan district of New York is four
times that of Philadelphia.
The Port has the finest harbor on the Atlantic Coast, with 780
miles of waterfront.
Three times as many railroad trunk lines come to New York as
come to any other city on the Atlantie tidewater.
More manufacturing industries are located in the New York
district than in the combined cities of Philadelphia, Chicago,
Cleveland and St. Louis, and the value of the products of the New
York industries is nearly as great as the combined value of the
products of those of the other four cities.
Approximately half of all the foreign commerce of the United
States passes through the Port of New York.
This is one side of the picture, and it might seem that New
York's position is unassailable that as much business as the
Port desires and can handle is bound to gravitate to it.
There is another side.
New York suffers a severe handicap from the differential in
railroad freight rates, whereby shippers to or through the Port of
New York pay more on shipments than to or through such cities
as Philadelphia and Baltimore.
A determined campaign is being made to divert traffic from
New York, mainly on the grounds of alleged congestion and high
terminal costs at New York.
The effects of these things are already visible. The tonnage of
New York's foreign commerce, mounting steadily from 1911,
reached a peak in the year ended June 30, 1914, and has since
fallen steadily. The 1918 figures are 26 per cent below those for
1914 and lower than those for 1911 or any succeeding year.
New York's percentage of the total foreign commerce of the
United States fell from 52.67 per cent in 1916 to 44.68 per cent
26
REPORT OF PORT AND HARBOR COMMISSION
in 1917 and 42.36 per cent in 1918, the latter percentage being
lower than in any year since 1911 inclusive.
Fewer loaded freight cars came to New York in 1918 than in
any of the four preceding years. Despite the abnormal railroad
traffic in 1918 in the country at large, figures compiled by the
Commission's statisticians for four of the principal New Jersey
trunk lines show that in the first ten months of 1918 they received
7 per cent fewer loaded cars than in the same months of the slack
year 1914, and 20 per cent fewer than in those months in the
heavy year 1916.
Preparing for the Future
And more important than the past is the future.
Our country is building a great merchant fleet. The opportu-
nity of the country is here, for the nation to reach out and get its
share of the world's trade. It must do so. Other ports are assum-
ing that it will do so, and are preparing to expand their facilities
to handle the increased traffic. With five times the traffic of any
other Atlantic port, New York's preparations must be vastly more
elaborate, in the face of vastly greater complications arising from
New York's very size and rapidity of growth.
Evidently the time has passed when the needs of the Port of
New York can be settled by the individual communities in the
two states that constitute the Port - even by the great com-
munity of New York City. The Legislatures of New York and
New Jersey have recognized this in creating this Commission.
A Broad Plan the Commission's Aim
The ultimate aim of the Commission, as has heretofore been
stated, is to establish a general plan of Port operation and develop-
ment that will serve as a guide for fifty years; a plan flexible to
meet future conditions, but fixed as to general principles; a plan
supported by detailed estimates of costs and proof of its economic
soundness, and accompanied by a tentative program which will
meet the most urgent needs first. If the plan is to be unassailable,
the Commission must determine every factor, and the weight of
every factor, that enters into the problem, and it is on this study
of existing conditions that the Commission is concentrating its
main efforts at the present time.
REPORT OF PORT AND HARBOR COMMISSION
27
WEST SIDE RAILROAD FACILITIES, MANHATTAN
Representing the whole Port of New York, the Commission
must take a broader view of the railroad problems upon the West
Side of Manhattan than those who have been struggling with it
for years. To them the outstanding facts are the inadequate ter-
minals on one railroad, the running of trains at street level, the
injury to Riverside Park. The Commission, considering all these
things, must still remember that the problem is not for Manhattan
Island alone, and so it has proceeded on the theory that the New
York Central Railroad, ready to spend money to increase its
ability to serve and be served by the Port, must be allowed to do
so, but that this one railroad must not be permitted to bar the
New Jersey railroads from rail operations along the Port's most
valuable waterfront, even though the New Jersey railroads have
shown no inclination thus far to spend money to bring about those
rail operations. In other words, the Commission has assumed that
the correct solution of the West Side problem will be a plan that
will provide the New York Central with modern facilities and
also provide for the necessary connections with the New Jersey
railroads by tunnels or bridges.
Moving freight in New York harbor either by lighter or by car
float is a costly operation. Yet all New York freight to and from
the New Jersey railroads is so handled, and a large part of the
New York Central's is floated in like manner from Sixtieth street
south because of the inability of the rail line to handle it all. In
this system the railroads occupy 30 per cent of all the North River
waterfront in Manhattan from the Battery to West Thirtieth
street. At the railroad pier stations trucks must enter and leave
at the same point, causing constant congestion and delay.
Whether a marginal railroad is justified will depend mainly,
as far as the railroads are concerned, on whether enough could be
saved, taking into account the tonnage of freight handled, by an
all-rail operation to pay the interest on the investment in such
marginal railway, its New Jersey connections and its terminals.
For the public the most easily applied test is determining how
much time could be saved trucks if the waiting at piers could be
eliminated.
28.
REPORT OF PORT AND HARBOR COMMISSION
To determine the costs of marine operations to and from lower
Manhattan the Commission has made a minute analysis of the
traffic of two of the New Jersey trunk lines for a period of one
month, just before the war, deriving from the companies' records
both the tonnages handled and the costs. These costs embrace
switching costs in New Jersey, costs of water transportation,
handling costs at the Manhattan piers -operation, maintenance
and repairs of rail equipment, operation and maintenance of tug-
boats and car floats, rental, maintenance and insurance of piers.
All-rail costs are being determined from the costs of all-rail opera-
tions to local terminals on the New Jersey side, modified by esti-
mate to meet the conditions of the marginal railroad.
The tonnages handled at all of the pier stations that could be
eliminated by the marginal railroad are being taken off from the
records of the railroad companies, as are data relative to rentals,
maintenance and other expenses of existing piers.
Estimates are being made of the costs of a marginal railroad
and terminal to handle the tonnages indicated. As some advocate
an elevated railroad and some a subway, estimates for both are
being made. Separate computations are being made for a plan to
accommodate the New York Central alone, and for the more com-
prehensive one with connections to the New Jersey railroads.
To make the other direct test, that of the possible saving in
trucking delays, traffic counts have been made at typical railroad
piers. The number of trucks there, the capacity and loading of
each, the waiting, unloading and loading time of each have been
recorded. From truckmen and other sources unit operating costs
of trucks prevailing in 1914 are being built up. Given these unit
operating costs, the number and kind of trucks required to handle
the total railroad tonnage, as indicated by the traffic count, and
the average delay per truck, the total cost of these delays can be
closely approximated. So the cost of the smaller delays at the
ideal inland terminals of the marginal railroad can be estimated,
and the difference will be the interest on the expenditure justifi-
able from the shipper's point of view.
The Commission is attempting to make the present analysis
independent of considerations that though highly important are
calculable, if at all, only after more extended study. These
REPORT OF PORT AND HARBOR COMMISSION
29
include the release of valuable waterfront to steamship uses; reduc-
tion in the number of trucks on the streets; a possible dovetailing
with plans for a better market system.
MARKETS AND FOOD DISTRIBUTION
The problem of markets and food distribution is the second of
the special investigations to which the Commission has already
given much attention. No problem of the Port is more important,
none has a more vital bearing on the cost of living at the Port.
The present market system is unquestionably uneconomical, both
because of the congestion it produces and because of the wastage
and loss of freshness of perishable foods through repeated hand-
ling. It is not yet known what the losses are, but whatever they
are they must be carried in the prices of food and paid for by the
consumer. The problem of a better system, too, is closely tied up
to the West Side railroad problem, and neither can be solved inde-
pendently of the other.
Every public market in New York City and most of those on
the New Jersey side of the river have been visited by an investi-
gator for the Commission, who has studied their history, the evolu-
tion of their administration, the reasons for their present loca-
tions, the character and volume of their business and their methods
of operation. Reports of various food commissions have been
reviewed and abstracted.
Under the present system most of New York City's food supply
and a considerable part of that of New Jersey cities of the Port
passes through the great primary market district on the lower
West Side from Fulton street north to Canal street and from the
North River to Greenwich street.
Fruits from California and Florida come to piers in this district
and are sold at the piers, whence they are trucked through the
streets, mainly to other markets to Manhattan, Brooklyn or New
Jersey or to the stores of the primary market near by. At the
markets they are sold again and trucked again, to retail stores, or,
in the case of the primary market, to other markets.
Produce brought by rail from nearer points is unloaded in
Jersey City and trucked to the primary market, whence it is sold
and trucked to other markets or to retail stores. In general meat
30
REPORT OF PORT AND HARBOR COMMISSION
and milk do not pass through the primary market, but are dis-
tributed from the railroad terminals, as are certain other com-
modities, such as potatoes.
Of the secondary markets there are both wholesale markets,
such as the Wallabout in Brooklyn, and retail markets. The
wholesale and jobbers' markets in New York, of which there are
three or four, are so located as to supply retailers from a large
section. The retail markets usually supply only a small area, and
collectively cover only a small part of the city. Several farmers'
markets are operated in connection with the wholesale markets.
In the New Jersey cities the markets are in general combina-
tion wholesale, retail and farmers' markets-wholesalers and
jobbers, who truck their goods largely from the New York primary
market, supplying such wares as the farmers are unable to bring.
The general system, with its large dependence on the primary
market, causes congestion and confusion at the piers; a multiplica-
tion of trucks hauling food through the streets; the piling up of
food on the sidewalks in the primary market district because the
stores there are small and inadequate to contain the large quanti-
ties of goods brought to them; added costs and loss of freshness
because of repeated handling.
+
Commission men and others engaged in food distribution assert
that the present system is the only feasible one, and ask for still
greater concentration, the giving over of all piers in the primary
market district to the food industry, and the provision of better
facilities at the piers. They point to several unsuccessful attempts
to bypass the primary market by the delivery of cars near the
other markets — attempts that have only resulted in the ultimate
trucking of the goods back to the primary markets. It
It may be
questioned, however, whether these experiments were sufficiently
planned through and advertised, and of long enough duration to
form a fair test. A remodeling of the market district, with the
removal of activities foreign to it, would probably effect some
reduction in the congestion and costs of the present system; but
if any material improvement is to be brought about the Commis-
sion's studies to date indicate that it must come through a not too
radical decentralization.
REPORT OF PORT AND HARBOR COMMISSION
31
EXTERIOR BELT LINE, NEW JERSEY
Whether or not the New Jersey railroads are ever brought to a
common terminal system in Manhattan by a bridge over or tunnel
under the Hudson River, rail connection between them is neces-
sary. Each railroad interchanges cars with every other railroad
and each serves industries and steamship piers on other lines.
Under the unified government operation of the past year,
furthermore, there has been much diversion of cars from con-
gested terminals to others on other lines, and this increased the
need for an adequate belt line. The Railroad Administration was
compelled to depend on a combination of more or less fragmentary
lines controlled by several of the trunk lines. This combination
runs from Edgewater, opposite 130th street, New York, to Bay-
onne, along the base of the Palisades, most of the way about a
mile from the waterfront, and intercepts all of the trunk lines.
This belt line, in spite of awkward location and operating diffi-
culties, has been very effective in the past year. The limit of its
capacity has been reached, however, and there is need in the esti-
mation of many for another belt line which may be used in addition
for a very different purpose a purpose for which the existing
line would be quite inadequate. This is an exterior belt line whose
two main functions would be serving steamship traffic and form-
ing an essential part of a system of unified freight terminals
reaching every section of the metropolitan district. Such a line,
while located in New Jersey, would be as serviceable to New York
as to New Jersey, as will be developed.
The idea of union freight terminals with a belt-line collecting
and distribution system is not new but has been somewhat ampli-
fied in the Commission's studies. The basic principle is consolida-
tion of less-than-carload freight, resulting at once in better loading
of cars and floats and a great reduction in trucking distances.
Under present conditions each railroad has its own freight sta-
tions, in Manhattan and elsewhere. Few of these have sufficient
traffic to or from any one point to make through carload shipments
possible. Each road has to maintain facilities at its break-up yard
to transfer inbound freight to other cars for the various stations,
and to consolidate, arranged in station order, outbound freight
from the various stations. As many of these stations have insuf-
32
REPORT OF PORT AND HARBOR COMMISSION
ficient business to utilize cars and boats to their full capacity, we
see car floats carrying only a few cars, and cars and lighters half ·
empty. To minimize this under-loading the railroads tend to con-
centrate their business at a few stations, and many of the sections
of the district are almost without facilities.
From the shipper's point of view the system is highly unsatis-
factory, for the reason that his truckmen, with goods on each truck
for several railroads, must line up in turn at each crowded station
and waste many valuable hours. Relief is afforded him by the
private terminal, which receives from and delivers to all railroads;
but this advantage is largely offset by the necessity imposed upon
the terminal company of collecting from and distributing to several
transfer stations on the New Jersey side.
To remedy this the exterior belt-line plan contemplates estab-
lishing union freight stations wherever the total available daily
business is sufficient to load a car float; a collecting and distribut-
ing point for these floats at some point on the waterfront where
there is adequate space for steamship piers and railroad yards; a
classification yard and transfer station at that point, and a rail-
road, passing to the westward of the existing break-up yards and
crowded industrial area, and crossing each of the trunk lines, ter-
minating at Piermont on the Hudson, thirty miles north of Jersey
City. A Barge Canal terminal would probably be built at
Piermont.
To such a line, operated independently, cars of less-than-carload
freight could be delivered by the various trunk lines, and the busi-
ness of breaking up for the different terminals could be concen-
trated at the general clearing yard at the south end of the belt
line. Conversely, in one rehandling at this point, freight from
all of the union terminals could be consolidated in station order
in cars for the different roads.
The other primary purpose of this belt line would be to serve
steamship traffic. With a terminal for freight steamships at the
south end of the line, solid trains for the steamships could be made
up at division points west of the belt line and diverted from the
trunk lines without passing through the break-up yards; and solid
west-bound trains could be made up at the steamship piers and de-
livered to the railroads, or to the Barge Canal, without passing
through the main classification yards of the different railroads.
REPORT OF PORT AND HARBOR COMMISSION
33
Thus it is seen that the exterior belt line would be of very
material benefit to New York City by making it possible to estab-
lish a comprehensive system of freight stations serving all parts
of the city. New Jersey, receiving less of this benefit, would
derive material advantage in the possibility of attracting indus-
tries to locate along the belt line. Industries so located would
be on the rails of every truck line on the New Jersey side of the
harbor and have direct rail connections to shipping. The improved
steamship facilities such a line would provide would help the entire
Port.
It should be noted that such a belt line would be beneficial to
the entire State of New York, inasmuch as four of the New Jersey
trunk lines run from western New York, whose shippers would
profit by the improved facilities at the New York terminal. Ship-
pers along the Barge Canal through its entire length would derive
similar benefit, as would those throughout New Jersey, every part
of which is reached by the railroads the belt line would intercept.
A representative of the Commission has been over three possible
routes for such a belt line, and survey parties have recently com-
pleted a preliminary study of the most favorable route. The route
considered runs from Piermont north and west of Paterson and
through Summit. The southern terminus has not yet been deter-
mined, nor has the cost of such a line.
MARINE WORKERS' STRIKE
An excellent opportunity to test the extent of New York's
dependence on marine operations to supplement her railroad serv-
ice and of her ability to do without these marine operations was
afforded January 9-11, when a strike of the marine operators tied
up almost every floating craft in the harbor. The strike went into
effect officially the morning of January 9, although in some
instances car-float and lighterage service was practically tied up
during the preceding night. All operators of tugboats went out;
car-float and lighterage service came to a complete standstill, and
ships were unable to dock or depart except under their own power.
The ferries of the Delaware, Lackawanna & Western Railroad
in the North River remained in service.. During the first day of
the strike the Long Island Railroad ferries in the East River were
2
34
REPORT OF PORT AND HARBOR COMMISSION
running, but service was suspended on the other two days. The
Staten Island municipal ferry was not operated the first day, but
after that a somewhat irregular service was maintained by the
New York Police Department. A small ferry between Elizabeth-
port and Staten Island was kept going during the strike.
The strike terminated Sunday, January 12, when most of the
contending parties consented to arbitration before the National
War Labor Board.
The general method of food distribution at the Port of New
York has already been set forth in this report. With the declar-
ing of the strike it is apparent that the floating of cars to the Man-
hattan pier stations was stopped absolutely, while trucking to Man-
hattan from the various New Jersey waterfront terminals could
be done only via the Lackawanna ferries. The Railroad Admin-
istration at once placed general embargoes against all shipments
to or through New York, but modified them to permit such ship-
ments as could be handled otherwise than by car float or lighter.
The foods brought in were trucked via the Lackawanna ferries; or
hauled in cars through the Pennsylvania tunnels to Long Island
or to the Harlem River terminal of the New York, New Haven
& Hartford Railroad, and trucked over the East River or Harlem
River bridges; or diverted to the New York Central Railroad via
Albany or Poughkeepsie; or held in New Jersey until the end of
the strike. Some of the food from the West was rerouted from
the Erie to the New York Central at Buffalo. Staten Island was.
supplied by diversion to the Baltimore & Ohio Railroad, by the
Elizabethport ferry and after the first day by the usual agency,
the municipal ferry.
On January 10 the Commission began a study of the effect of
the strike on the supply and distribution of perishable food.
Inspectors were sent to various railroads with instructions to ascer-
tain the daily receipts of perishable foods by the various railroads.
from January 2 to the termination of the strike and thereafter
daily until further notice, in order to get data as to the normal
movement of food before and after the strike; to obtain copies of
all embargoes issued on account of the strike; and to learn from
the various railroads the diversions and amount of perishable food
made to or by them for the purpose of getting it to the inhabitants.
REPORT OF PORT AND HARBOR COMMISSION
35
of Greater New York, and the routes and means by which such
diversions were made.
A twenty-one hour census was taken of the truck traffic on the
Lackawanna ferries, the census utilizing twenty-seven inspectors.
One man rode on each ferry boat, with instructions to ascertain in
the case of perishable foodstuffs and milk the point at which the
truck was loaded, the commodity, the destination, and the times of
loading, arrival in line for the ferry, arrival on boat and departure
on the other side. In the case of pleasure vehicles, trucks carrying
general merchandise and empty trucks, the inspector recorded the
times of arrival in line for the ferry, arrival on the boat and
departure from the boat, and the respective numbers of such
vehicles. This information was obtained in both directions.
From data furnished by the New York Board of Health it is
estimated that the city of New York normally consumes daily
1,800,000 quarts of milk, 94 carloads of refrigerated meats, 74
of livestock, 18 of live poultry, 20 of fresh fish, 127 of dairy
products, 201 of vegetables and 107 of fruit. During the three
days of the strike the daily milk receipts averaged 74.010 per cent
of the normal daily consumption, the receipts of refrigerated meats
54.609 per cent, of livestock 108.108 per cent, of live poultry
5.555 per cent, of fresh fish 66.666 per cent, of dairy products
22.965 per cent, of vegetables 36.296 per cent, and of fruit 27.103
per cent.
In terms of the normal consumption the New York railroads,
exclusive of diversions, brought 30.652 per cent and the New Jer-
sey 43.358 per cent of the milk. For refrigerated meats the cor-
responding percentages were 35.106 and 19.503; for livestock
78.378 and 29.730; for live poultry 0.000 and 5.555; for fresh
fish 60.000 and 6.666; for dairy products, 14.173 and 8.792; for
vegetables 22.093 and 14.203; for fruit 17.757 and 9.346.
Considering now the 43.358 per cent of normal daily supply
brought by the New Jersey railroads, this is divided into 25.880
per cent delivered via the rails of the New York roads and 17.478
per cent via the Lackawanna ferries. Similarly, 11.702 per cent
of the normal daily consumption of refrigerated meats was
delivered via the rails of the New York roads and 7.801 per
cent via the Lackawanna ferries, these two figures totaling the
36
REPORT OF PORT AND HARBOR COMMISSION
19.503 per cent brought in by the New Jersey roads. The corre
sponding percentages for the remaining items are: Live stock,
27.027 and 2.703; live poultry, 0.000 and 5.555; fresh fish, 0.000
and 6.666; dairy products, 2.887 and 5.905; vegetables, 6.811
and 7.392; fruit, 6.854 and 2.492.
For convenience in tabulation the Pennsylvania Railroad was
considered a New Jersey railroad because the Pennsylvania tun-
nels are not ordinarily used for freight business. The West
Shore Railroad was considered a New York railroad for the reason
that its freight could be readily intercepted at Albany and brought
down the east side of the Hudson River. An exception had to
be made in the case of the New York, Ontario & Western Rail-
way's milk business, which is a large item, and which was trucked
from Weehawken via the Lackawanna ferry. The New York,
New Haven & Hartford and the Long Island railroads were also
considered New York roads, while the traffic of the Baltimore
& Ohio was split up according to destination, as that road under
normal conditions has both rail delivery to Staten Island and water
delivery to other parts of New York.
In the case of almost all of the foregoing items of food, the
average daily deliveries for the seven days immediately preceding
the strike were far below the average normal consumption. At
this season of the year the supply of most of these items is less
than the demand, and the difference is made up by withdrawal
from storage; hence the reduction in deliveries of foods during
the strike was much less than the percentages would indicate. In
the case of milk a strike of the dairymen had been in effect for
a week and remained in effect after the termination of the marine
strike. It reduced the milk supply materially. There was a
decided falling off in the milk receipts of most of the railroads,
but the Pennsylvania and the New York, New Haven & Hartford
reached out into new territory as far away as Cleveland and Bos-
ton and made up a great deal of the shortage. It should be men-
tioned, also, that the demand for milk is less in January than in
the summer months.
To effect the rail diversions from the New Jersey railroads a
number of routes were utilized. A large amount of milk and a
lesser amount of other perishables was hauled through the Penn-
REPORT OF PORT AND HARBOR COMMISSION
37
sylvania tunnels to delivery stations on the Long Island Railroad
or carried on via the New York Connecting Railroad to the Har-
lem River terminal of the New York, New Haven & Hartford.
The next nearest crossing of the Hudson River available was
the Poughkeepsie bridge. This could be reached via the Lehigh
& Hudson or the Lehigh & New England and the Central New
England railroads. From the east end of the Poughkeepsie bridge
the New York Central, New York, New Haven & Hartford and
Long Island railroads could be reached. Two cars of refriger-
ated meat that had already reached the Jersey City terminal of
the Erie were hauled back over that road to Maybrook, thence
via the Poughkeepsie bridge, Beacon, Port Morris and Fresh
Pond to Flatbush avenue, Brooklyn, using the Central New Eng-
land, New York Central, New York Connecting and Long Island
railroads.
Diversions to the New York Central crossing at Albany could
be made via the Delaware & Hudson from Binghamton or at
various points west of Albany. Some diversions were made from
the Erie at Buffalo.
More diversions were made during the three days of the strike
than are indicated by the figures, inasmuch as a number of the
deliveries were not effected until some time afterward.
Undoubtedly more extensive diversions would have been made if
the strike had lasted longer. As far as the figures show, all diver-
sions to the New York Central were taken care of at the distribut-
ing stations, and apparently more could have been.
The census of the Lackawanna ferries corroborates the figures
for the amount of New Jersey perishable foods diverted to the
ferries. The proof was found by prorating the total volume dur-
ing the census to the period of the strike.
During the census no restrictions were placed upon the char-
acter of vehicles carried or upon their loading. Eastbound, 202
trucks carried food; 295 carried merchandise and 623 were
empty, while at the same time 246 pleasure vehicles were hauled.
Westbound, there were 86 truck loads of food, 572 of merchandise,
483 empty trucks and 220 pleasure vehicles.
Nearly half as many trucks carried food from New York by
ferry as to New York. Exclusive of milk more than half as much
38
REPORT OF PORT AND HARBOR COMMISSION
food by weight was carried out of New York as into New York.
In the case of milk for every ten quarts brought to New York
from Hoboken one quart was taken back to Hoboken.
As to the effect on the markets and prices, the strike did not
last long enough to give conclusive results. There seems to have
been a slight increase in prices during the strike, but there was
a decided drop afterward, when food temporarily held back
arrived at the terminals. How much of this is attributable to the
strike is questionable, inasmuch as there seems to have been a
similar falling off in prices at other ports. Except as to refriger-
ated meats, live stock and milk, the dealers apparently were not
in fear of a shortage and did not exert themselves to get supplies
over from the New Jersey terminals. Offers of the railroads to
reroute shipments were declined, as were offers to make Jersey
City deliveries, to be trucked to New York.
In the case of live stock, the condition was complicated by the
fact that abattoirs are scattered throughout the city and that
many of them are reached only by water deliveries. A large
part of the meat coming to New York comes on the hoof. In
order to get this to the abattoirs it was found necessary to obtain
special permits to drive cattle through the streets at night.
While the strike did not last long enough to permit definite
conclusions, it offered much in the way of instructive informa-
tion. It would be useless to attempt to compute the loss to food
distributors caused by the delays to shipments and the excessive
trucking necessitated. The loss must have been large, however,
and a way to prevent its recurrence should be found.
A second strike of the marine workers was called March 4, as
a result of their dissatisfaction with the award resulting
from the arbitration at the termination of the first strike.
After about four days, during which conditions were about the
same as in the January strike, an agreement was reached between
the workers, the Railroad Administration, the Army, the Navy
and some of the private boat owners, and many of the employees
returned to work, ferry, car-float and railroad lighter service
being resumed. Many of the workers remained, and still remain,
on strike, with no apparent prospects for an early termination of
the deadlock. The Commission is watching the situation, but
has found it less instructive to date than the strike in January.
REPORT OF PORT AND HARBOR COMMISSION
39
COMPACT BETWEEN NEW YORK AND NEW JERSEY
FOR THE CREATION OF A PORT AUTHORITY
The investigation and studies made by the Commission soon
convinced the Commission that, whatever physical plan might
ultimately be worked out, it was essential that the two States be
brought together in an agreement or compact fixing the basis
and terms of co-operation, and providing for legal machinery
through which this co-operation could be made effective. The
Commission, therefore, requested its counsel to make a careful and
exhaustive study of all the legal phases of the problem.
Such a study was made and is now contained in the "Prelimin-
ary Report of Counsel to Accompany the Tentative Draft of Pro-
posed Treaty Amendatory and Supplementary to the Treaty of
1834," a copy of which is submitted herewith. This study brings
together the precedents bearing upon the problem and discusses
at length the history of the early commercial relations between
New York and New Jersey; the boundary dispute; the treaty of
1834; the purpose and meaning of that treaty; the federal power
over interstate commerce and navigation; the powers of the two
States, covering the title to shore-front property both in New
Jersey and New York, the regulation of waterfront franchises, the
various agencies — corporations, municipalities or other delegated
powers through which the States may act, the legal basis for
interstate action and the treaty or compact-making power of the
States; also the experiences in international law in dealing with
such problems; the methods for the enforcement of an interstate
treaty; State limitations upon borrowing capacity thereof, and
other phases of the problem. This report is regarded by experts
as the first compilation of authorities upon these phases of the
problem of Port development.
The legal problem is unique. As stated by counsel, "at the
threshold we face the fact of a dual political sovereignty. The
Port lies in two States, each an independent sovereignty in its
own land. The legal problem, therefore, can not so easily be
stated or solved as it might be for New Orleans, Philadelphia,
Boston or Baltimore. Again, traffic between two States across
boundary waters is interstate commerce. Neither one State nor
the other can wholly regulate the Port.”
40
REPORT OF PORT AND HARBOR COMMISSION
If it is important to overcome the physical barriers that separ-
ate the two States it is of even greater importance to overcome
the legal barriers. The Commission felt that the implicit obliga-
tion of the legislation under which it was created should be
reduced to the form of a compact whose terms should be explicit
and definite — a compact by which the States should co-operate
through a common agency in the development of Port facilities.
It was convinced that there were no constitutional or legal difficul-
ties in the way of such a compact and that it should supplement
the existing compact between New York and New Jersey made
in 1834, a copy of which is contained in the report of counsel to
the Commission.
Acting under instructions of the Commission, accordingly, coun-
sel for the Commission prepared a tentative draft of such a sup-
plemental compact.
Accompanying it was the following notice:
For the purpose of developing a legal plan for the carrying
forward of such constructive recommendations as shall
ultimately be approved, the Commission now presents for
public discussion and consideration a proposed treaty between
the two States, looking to the creation of a single Port
Authority. Accompanying the tentative treaty is a report
from the Commission's counsel, discussing the legal phases
of the problems presented to the Commission.
Criticisms and suggestions should be sent to the secretary,
at the office of the Commission, 115 Broadway, New York
City. A limited number of copies of the report of counsel
accompanying the treaty are available for organizations or
individuals desirous of making suggestions or criticism of
the plan.
A copy of the draft was sent to all members of the Legislatures
of both States, to the Mayor and other members of the Board of
Estimate and Apportionment of New York City, to other
municipal officials within the metropolitan district, to civic and
commercial bodies and to the press.
The first public consideration of this draft was given at a meet-
ing held at the New York Chamber of Commerce December 19,
REPORT OF Port and HARBOR COMMISSION
41
at which were present Hon. Charles S. Whitman, Governor of
New York; Hon. Walter E. Edge, Governor of New Jersey;
Hon. Charles E. Hughes; Hon. William D. Guthrie; Hon. John
O. H. Pitney; Hon. Byron R. Newton, Collector of the Port;
Hon. Alfred H. Smith, Regional Director of Railroads; Hon.
Charles L. Craig, Controller of the City of New York; Hon.
Edward Riegelmann, President, Borough of Brooklyn; Hon.
Murray Hulbert, Commissioner of Docks, City of New York;
the members of this Commission, its counsel and its consulting
engineer.
At this time both Governor Whitman and Governor Edge took
occasion to pledge their support to the proposed compact between
the two States.
The main features of the proposition almost at once secured
general popular approval. The New York Chamber of Com-
merce, Merchants' Association, City Club, Citizens' Union,
Brooklyn Chamber of Commerce and Newark Board of Trade
all gave their hearty support to the project. The metropolitan
press was almost unanimously for it. Among the papers sup-
porting it was the New York Times, World, Sun, Tribune, Herald,
Journal of Commerce, Evening Post, Evening Mail, Evening
World, Evening Sun and Globe, Newark Evening News and
various other New Jersey papers.
At the request of Governor Edge the State Bar Association of
New Jersey appointed Messrs. Gilbert Collins and Marshall Van
Winkle of Jersey City, Edward M. Colie and Robert H. McCarter
of Newark, Wayne Dumont of Paterson, William R. Wilson of
Elizabeth and Adrian Lyon of Perth Amboy a special committee
to consider the proposed draft. The committee approved of its
legality.
Committees of the various bodies endorsing the plan made
careful study of the details, and valuable suggestions and criti-
cisms were received by the Commission and its counsel.
Public hearings were held at Newark and New York City on
January 18 and 22, 1919, respectively.
At the Newark hearing the treaty was discussed by D. Grotta,
president of the Newark Board of Trade; Morris R. Sher-
rerd, chief engineer of the Department of Streets and Public
42
REPORT OF PORT AND HARBOR COMMISSION
Improvements, City of Newark; Hon. R. C. Jenkinson, vice-
chairman of the New Jersey State Board of Commerce and Navi-
gation; Peter Campbell, W. J. Bartnett, and others. The dis-
cussion was distinctly favorable to the treaty.
At the New York hearing John F. Wallace, representing
the Chamber of Commerce of the State of New York; R. Ca
Harrison, for the City Club; F. B. DeBerard, for the Mer-
chants' Association; William McCarroll, Charles Whiting Baker,
Louis L. Tribus, representing the Staten Island Chamber of
Commerce; S. Wood McClave, of the Eastern Bergen County
Association of New Jersey; Hon. Byron R. Newton, Collector
of the Port of New York; John W. Ward, Lindon W. Bates, and
R. McL. Harding, spoke in favor of the principle of the treaty,
Charles Campbell spoke in opposition.
On January 29, a conference was held at Albany between Your
Excellencies, the members of the Commission and their counsel,
and the following members of the Legislature of New York:
Lieut.-Gov. Harry C. Walker; Hon. J. Henry Walters, presi-
dent pro tem of the Senate; Hon. James A. Foley, minority
leader of the Senate; Hon. Thaddeus C. Sweet, Speaker of the
Assembly; Hon. Simon L. Adler, majority leader; Hon. Charles
D. Donohue, minority leader, and Hon. H. E. Machold, chairman
of the Ways and Means Committee of the Assembly; Hon. Murray
Hulbert, Commissioner of Docks, New York City; Ed. J.
McGoldrick, Assistant Corporation Counsel of New York City.
At this conference the draft of the compact was presented and
discussed, and it was agreed that a legislative bi-State Commis-
sion should be appointed, which should co-operate with our Com-
mission in the revision of the compact so that it might be pre-
sented in complementary form to the Legislatures of both States.
Accordingly Gov. Alfred E. Smith; Lieut.-Gov. Harry C.
Walker; Hon. J. Henry Walters, president pro tem of the Senate ;
Hon. Thaddeus C. Sweet, Speaker of the Assembly; Hon. Henry
M. Sage, chairman of the Committee on Finance of the Senate;
Hon. H. E. Machold, chairman of the Committee on Ways and
Means of the Assembly; Hon. Alvah W. Burlingame, Jr., and
Hon. Louis M. Martin, chairmen respectively of the Committees
on Judiciary of the Senate and the Assembly; Hon. James A.
:
REPORT OF PORT AND HARBOR COMMISSION
43
Foley, minority leader of the Senate; Hon. Simon L. Adler,
majority leader of the Assembly; Hon. Charles D. Newton,
Attorney-General; Hon. Frederick A. Wells and Hon. George R.
Fearon, members of the Assembly; Hon. Murray Hulbert, Com-
missioner of Docks of New York City; Hon. William P. Burr
and Edward J. McGoldrick, Corporation Counsel and Assistant
Corporation Counsel of New York City, and Robert C. Cum-
ming, legislative bill drafting commissioner, were appointed to
represent New York, while Hon. Thomas F. McCran, Attorney-
General; Hon. Clarence E. Case and Hon. Henry E. Ackerson,
Jr., majority and minority leaders of the Senate; Hon. Arthur
A. Pierson, Speaker of the Assembly; Hon. Ralph K. Kellam and
Hon. Hugh C. Barret, leaders of the Assembly, and Hon. John
R. Milton, corporation counsel, were appointed to represent New
Jersey.
On February 15, through the courtesy of the New York Cham-
ber of Commerce, the Commission met at the Chamber and con-
sidered the proposed compact. There were present: Your
Excellencies; Lieut.-Gov. Walker, Senators Walters, Sage, Foley
and Burlingame, Speaker Sweet, Assemblymen Machold, Adler,
Donohue, Martin; Wells and Fearon, Attorney-General Newton
for the State of New York, Corporation Counsel Burr and
Assistant Corporation Counsel McGoldrick for the City of New
York; Senators Runyon, Case, Ackerson, Edwards and Whitney,
Assemblymen Pierson, McAcer, Kellam, Barrett and Winne,
Attorney-General McCran, Comptroller N. A. K. Bugbee and
State Treasurer William R. Read for the State of New Jersey;
the members of this Commission and others.
The conference adjourned to March 1 after appointing to
revise and redraft the proposed compact a sub-committee consist-
ing of the Attorney-Generals of both States, the majority and
minority leaders of both Houses of both States, and the corpora-
tion counsels of New York and Jersey City.
The sub-committee met on February 21 and considered all the
criticisms and suggestions that had been made, and instructed
counsel for the Commission to revise the draft and present it for
further consideration to the sub-committee prior to the meeting of
March 1.
44
REPORT OF PORT AND HARBOR COMMISSION
At the adjourned meeting of the bi-State Commission held on
March 1 at the Chamber of Commerce, Governor Smith, Speaker
Sweet and Senator Walters requested an adjournment of the con-
ference until the administrative officials of the City of New York
might be given an opportunity to consider the proposed draft and
express their views thereon. The conference, accordingly,
adjourned subject to the call of the chair as soon as the New
York legislative section of the conference was ready to report.
Hon. J. Henry Walters, president pro tem of the Senate,
addressed a communication to Mayor John F. Hylan and Hon.
Robert T. Moran, President of the Board of Aldermen of New
York City, a copy of which appears in Appendix A, as a part of
a resolution subsequently passed by the Board of Estimate and
Apportionment of New York City.
The matter having been set down by the Board of Estimate
and Apportionment for a public hearing on March 26, the
Commission and its counsel attended, by direction of Governor
Smith, and counsel for the Commission outlined the history and
purpose of the proposed compact. The hearing continued through
the day, and on the following day were heard besides the Commis-
sion's counsel in support of the treaty Hon. George W. Wicker-
sham, for the New York Chamber of Commerce; Samuel Unter-
myer, representing the Yonkers Waterfront Development Com-
mission and the Merchants' Association of the City of New York;
Col. Henry W. Hodge, representing the Citizens' Union; L. M.
Wallstein, representing the City Club, and J. S. Davis and F. L.
Cranford, representing the Brooklyn Chamber of Commerce.
There appeared in opposition Charles F. McLean, representing
the New York Board of Trade and Transportation, Cyrus C.
Miller, Calvin Tomkins and others.
On April 4 the Board of Estimate and Apportionment adopted
the resolution herewith submitted and marked Appendix A, in
which the board expressed itself as being "fully impressed with
the necessity for co-operation between the two States to develop
the Port of New York," and "ready to immediately consider
and carefully study any comprehensive plan having that for its
object"; but the board believed that the " presentation and
adoption of such comprehensive plan should precede the making
REPORT OF PORT AND HARBOR COMMISSION
45
of the proposed treaty granting such vast power for all time to
the Port Authority in the Port District to be created thereby."
The board recommended that this Commission be continued in
existence so as to permit it, as a result of the studies it has already
made and is still making, to present such comprehensive physical
plan for examination and study, together with a comprehensive
statement of the ways and means to carry such plan into effect.
It is also stated that "the active and earnest co-operation of New
Jersey is invited by the board in any movement tending to
improve and develop the Port of New York in all its parts and
to the fullest extent, including matters relative to river and harbor
pollution, which now constitutes a grave menace to the harbor of
New York, and the abatement of the nuisance arising from the
poisonous fumes generated in the factories or plants situated on
the New Jersey shore opposite Riverside Drive, which nuisance
is most injurious to the health and detrimental to the property
of the people residing in that locality.”
Main Criticisms of Compact
The main criticisms of the form of the compact developed by
the public discussion before the Board of Estimate and Apportion-
ment, with the arguments pro and con, can now be summarized.
Constitution of Port Authority.—It seemed to be the opinion
of the members of the Board of Estimate and Apportionment
that the New York section of the Port Authority should be made
up of the Board of Estimate and Apportionment as a whole, or
that at least two of its members should be members of the Board.
In support of this proposition the argument is that since the
interests of New York City are so large and extensive and the
consequences to the city's development so direct and immediate,
the city should have virtual control of the New York section
of the Port Authority.
It is argued also that the principle of home rule applies to an
agency having so much to do with the future development of the
States.
Against the proposition, it is held that the future development
of the Port will require a continuing body acquiring its knowl-
46
REPORT OF PORT AND HARBOR COMMISSION
edge by experience and not subject at any time to being made the
football of politics; that such a continuing authority exists at all
other important ports; that without it there will be no adequate
consideration given to the great problems of the Port, and that
the history of all administrations in the past shows that the mem-
bers of the Board of Estimate and Apportionment are too busy
with other matters to give time and attention necessary to
Port problems. It is pointed out, furthermore, that the Port
is not only a city matter but a State matter; and the State's credit
may be required for its development.
The opinion of the Commission has been heretofore that the
matter of selecting membership in the Port Authority was prop-
erly a subject for legislation and should not be embraced in the
treaty. Article IV now provides that the New York members are
to be chosen by the State of New York and the New Jersey mem-
bers of the State of New Jersey " in the manner and for the term
fixed by the Legislatures of each State."
Veto Power of the Governors.— It is provided that each State
reserves the right hereafter to authorize the vetoing by its Gor-
ernor of any action of the Port Authority. It was argued before
the Board of Estimate and Apportionment that this would give
either Governor power to hold up any improvement, no matter
how desirable, and though concurred in by the Port Authority.
It is the opinion of the Commission that this section may well
receive further consideration on the part of the Bi-State Legisla-
tive Commission.
Harbor Pollution.
It is provided that until otherwise deter-
mined by the Legislatures the term "rule or regulation for the
improvement of the conduct of navigation and commerce within
the district," shall not include matter relating to harbor or river
pollution.
It seems to be the opinion of the members of the Board of Esti-
mate and Apportionment that this reservation should not be made.
In this connection the attention of Your Excellencies is called to
the fact that there is now pending in the United States Supreme
Court a suit of the State of New York against the State of New
Jersey and the Passaic Valley Sewerage Commission to restrain
the construction and operation of the trunk-line sewer to be built
REPORT OF PORT AND HARBOR COMMISSION
47
for the purpose of conducting the discharge of sewage to a point
in New York Bay. The original bill in this suit was filed October
7, 1908, and by a recent order of the United States Supreme
Court the case was reopened for the purpose of taking additional
testimony; and it has been stated both in New York and New
Jersey that the inclusion in the proposed compact of matters of
harbor pollution might embarrass the United States Supreme
Court in the decision of the pending litigation. The suggestion
was made by representatives of the Merchants' Association as well
as by the Committee of the New Jersey Bar Association that for
the time being this matter be reserved.
By chapter 539 of the Laws of 1903 the New York Legislature
appointed a commission to investigate certain threatened pollu-
tion of waters in New York Bay, the commission consisting of
Daniel Lewis, chairman, Olin H. Landreth, George A. Soper,
Myron S. Falk and Louis L. Tribus.
This Commission made its first report on March 31, 1905, and
its second report April 30, 1906. In its report of March 31, 1905,
it emphasized in the following language the needs of the metro-
politan district as a whole and the desirability of joint State
action: "It has been suggested, therefore, that a metropolitan
sewerage district should be established, to include all sections in
both New York States and New Jersey which now or in future
may sewer into the bay and its tributaries. This district, when
authorized by joint State and Federal legislation, should be under
the direction and control of a permanent interstate commission,
with plenary power to control the discharge of all sewers here-
after constructed, as well as the task of evolving a comprehensive
plan for ultimately rendering the present chaotic and systemless
method of sewage disposal sanitary and suitable for all future
requirements.
"There seems to be no possibility of a comprehensive treat-
ment of this great question through the action of various and con-
stantly changing local authorities, acting independently. Man-
hattan may continue, as at present, to follow no system whatever,
simply emptying a new sewer into North or East River at any
place where grades permit, even though a recreation pier or public
bath may be already established at the same point. Brooklyn
48
REPORT OF Port and HARBOR COMMISSION
may, and probably will, carry its sewage into the sea, and thus
ruin the bathing beaches within its limits, and pollute the great
oyster beds therein, and Westchester county for forty miles from
the city may contribute a large amount of sewage, while the State
of New Jersey, with its constantly increasing population, will add
to its present outflow from year to year.
"The necessity also exists for a central authority to not only
direct, but also initiate, these great public works, upon which
depend the beauty and healthfulness of the approximately 450
miles of shore within the metropolitan district.
66 Immediate action should be commenced to secure such an
interstate commission, for the existing conditions must steadily
approach the point where the public will demand relief.
"In this country there is at present but one locality at all
analogous to New York in this respect, viz., Boston, where a great
metropolitan district empties its sewage into the harbor, but the
difference in governing conditions is radical, as but one State is
in control, while for New York harbor two great commonwealths
would have to join forces.
"England permitted the pollution of the Thames for centuries,
but at last was compelled to purify its waters at a cost far exceed-
ing the expense of preventing such contamination had the demands
of competent judges been complied with a hundred years ago.
"If New York and New Jersey should now initiate the plan
above outlined the mistakes of other great municipalities could be
happily avoided."
In support of the policy urged by the commission it obtained
from Attorney-General John Cunneen an opinion upon the ques-
tion "whether in the event this commission finds it desirable to
recommend for future consideration the establishment of a metro-
politan sewerage district, covering parts of the two States of New
York and New Jersey, the Legislatures of the two States have
authority to establish such a district and appoint a commission
having adequate powers of administration," the Attorney-General
answering the question as follows: "I am of the opinion that
the States of New York and New Jersey may, if they see fit, con-
struct a metropolitan sewerage district, covering parts of the ter-
ritory of the two States, and giving jurisdiction thereover to the
REPORT OF PORT AND HARBOR COMMISSION
49
courts of one or the other of said two States, as to all matters
pertaining to the proper sewerage of said district. Such concur-
rent acts of the States of New York and New Jersey should, how-
ever, in my judgment, be approved and ratified by an act of Con-
gress, for the reasons hereinbefore set forth, namely, that the
Federal Government has supreme control over the navigable
waters of the Hudson River and New York Bay, and its approval
should, therefore, be had to the joint action of the contiguous
States."
Notwithstanding the very wise suggestion on the part of the
New York Bay Pollution Commission, no attempt has been made
since 1906 to bring the States together upon a compact which
would cover this important matter and create the central authority
recommended by the commission of 1903.
Your Commission was not charged primarily with the duty of
considering the matter of harbor pollution, but it has no hesitancy
in adopting and agreeing with the conclusion quoted from the
report by the New York Bay Pollution Commission. If it were
not for the pendency of the litigation in the United States Supreme
Court, it would urge the wisdom of now adopting, after fourteen
years' delay, the recommendations of the New York Bay Pollu-
tion Commission.
Veto Power for New York City.— At various points in the
discussion before the Board of Estimate and Apportionment and
in the argument made by its corporation counsel, Hon. William
P. Burr, it was urged that the action of the Port Authority in the
making of rules and regulations, as well as in the carrying forward
of constructive plans, should always be subject to the consent of
the Board of Estimate and Apportionment of New York City.
Such a provision, in the judgment of the Commission, would tie
the hands of the Port Authority and preclude it from going for-
ward with its work.
The Commission realizes that there are many phases of Port
development in which the assent of the authorities of the City of
New York should be obtained, and that this is equally true of
other municipalities in other parts of the proposed district. The
Commission is of the opinion that this should be worked out in the
50
REPORT OF Port and HARBOR COMMISSION
legislation to accompany the physical plan, and should not form a
part of the treaty.
Flexibility in the Comprehensive Plan. It was urged that the
provision in the proposed compact, "that no change in the plan
for the comprehensive development of the Port after it has been
adopted by the Legislatures of the two States shall be made except
by and with the approval of the Legislatures of both States,"
would preclude necessary changes in the physical plan that would
develop as time went on. It is only fair to state that the Commis-
sion does not aim to present a comprehensive physical plan so
inflexible as to preclude any change. Such a plan, when pre-
sented, will undoubtedly distinguish between what may be called
"main features" or
or "fixed points" and other features which
will be treated as matters of detail, subject to change in accord-
ance with provisions of the legislation accompanying the adoption
of the plan.
Reversion of Property to the City. It was explained to the
members of the Board of Estimate and Apportionment that in the
case of any improvement made by the Port Authority by contract
with the city in which the consent of the city was essential, for the
crossing or closing of streets, or in which a franchise grant from
the city was essential, the city would doubtless require that the
property when paid for should revert to it. Members of the Board
of Estimate and Apportionment seemed to think that there should
be a definite provision in the treaty to cover such a situation.
Since, however, the project could not be consummated without the
consent of the city, it seems reasonable to assume that any enlight-
ened administration would make such a provision a condition of
the grant or franchise.
The Commission is reluctant to insert in the treaty anything
except those features absolutely essential. It would seem to be
sound judgment that all matters requiring flexibility should be
left to legislation following the treaty rather than be embodied in
the treaty itself.
With the exception of certain minor changes that have been
suggested, the foregoing present all of the subjects that have been
made the basis of public discussion before the Board of Estimate
REPORT OF PORT AND HARBOR COMMISSION
51
and Apportionment. In the opinion of the Commission they pre-
sent no insuperable difficulties or obstacles which cannot be over-
come in any open-minded conference purposing to effectuate the
compact.
At the hearings before the Board of Estimate and Apportion-
ment occupying two days, March 26 and 27, it was clearly appar-
ent that many of those present and expressing views had not care-
fully studied the proposals, and had no clear understanding of
the elements involved in the Port problem considered as a whole
and as affected by the numerous jurisdictions within the two
States, and in consequence thereof of the necessity for the fullest
co-operation between the two States. Some who appeared as
opponents were converted by the arguments presented to being
strong advocates, and your Commission is convinced that further
discussion and examination of the proposed compact will lead to
its better understanding and the further elimination of those ele-
ments of local pride and prejudice and natural antagonism to
change which stand in the way of the consummation of the great
result.
CONCLUSION
The problems of the Port of New York are more serious than
is generally realized, even at the Port itself.
To the population of the Port they are serious, because if any-
thing less than the most efficient system obtainable is in use this
fact must be reflected in prices; and because if any other port
can offer a more efficient system it is likely to draw trade from
New York.
To all New York State and all New Jersey they are serious,
because New York is the gateway to and from the interior. If
there is congestion at the gateway the interior suffers. The
interior trader bears his share of the extra terminal costs. He
perhaps suffers a still greater loss through delays, which make
his shipments undependable and put him at a disadvantage with
his competitor who escapes these delays.
To the nation itself the problems are equally serious. Foreign
trade has established New York as its focal point, and at this time,
when we have a wonderful opportunity to serve the world and
52
REPORT OF PORT AND HARBOR COMMISSION
ourselves by expanding our foreign trade, it is of the utmost
importance that New York be ready ready to take half of the
increase in trade as she now receives substantially half of the
total trade. If large preparations are being made or planned at
other ports, they must be vastly larger at New York.
The Commission, bearing all of the foregoing in mind, believes
that the greatest benefit to the communities of the Port of New
York, to the States of New York and New Jersey at large and
to the entire country will come from a scientific development of
the whole Port, and is earnestly seeking to evolve a plan for such
a development. Its findings to date can be summarized as follows:
A co-ordinated plan that will be a guide for fifty years can be
evolved only after the picture and analysis of present conditions
have been completed.
The picture is nearly completed and the analysis is well under
way.
Unquestionably the most important physical problem of the
Port is that of providing for a better and more economical move-
ment of inbound and outbound freight over the trunk lines now
terminating on the New Jersey and Staten Island waterfront. Its
solution can be found only when the details of the present con-
ditions are known. Three problems that are in a way part of this
general problem, but are urgent in themselves, are being given
special study. They are the West Side railroad situation in Man-
hattan; the food distribution system of the Port, which is insepar-
ably related to the West Side problem; and the exterior belt line
in New Jersey. Another major problem which must await the
complete analysis is that of providing adequate steamship ter-
minals properly related to the railroads.
Execution of any plan will require the direction of a permanent
authority with broad powers. The Commission has therefore
urged the adoption of the compact discussed in the preceding sec-
tion of this report. If this cannot be consummated this year the
Commission confidently hopes joint action will be taken at the
next sessions of the Legislatures to create a "Port of New York
District" and a "Port of New York Authority."
In order that the Commission may complete its work, it recom-
mends that the States of New York and New Jersey each appro-
REPORT OF PORT AND HARBOR COMMISSION
53
priate $100,000, the second and final installment of the amount
determined upon a year ago as necessary to cover the expenses of
the investigation.
Respectfully submitted,
WILLIAM R. WILLCOX,
J. SPENCER SMITH,
E. H. OUTERBRIDGE,
DEWITT VAN BUSKIRK,
FRANK R. FORD.
P. S. By direction of Governor Edge and Hon. J. Henry
Walters, the bi-State conference reconvened at the call of the
chairman on April 5 and the conference unanimously adopted the
following resolution :
Resolved: That to the end that a compact between the
two States may be submitted to the next Legislature of each State,
amended in the light of suggestions made and to be made, the
present conference be continued and the legislative sub-committee
of each State be instructed and directed to confer with the New
York, New Jersey Port and Harbor Development Commission
and its counsel and present at an adjourned meeting of this con-
ference, to be held at such time as the sub-committee is ready to
report, a revision of the present revised draft of the proposed com-
pact between the States which shall take account of all sugges-
tions that have thus far been made or may hereafter be made; and
be it further
Resolved: That it is the sense of this conference that pending
the consummation of such compact and the working out of a com-
prehensive plan for the development of the Port, all projects for
terminal facilities within the Port of New York shall be sub-
mitted to the New York, New Jersey Port and Harbor Develop
ment Commission for consideration and advice, to the end that
so far as practicable all such projects shall be in harmony with
such comprehensive plan when ultimately adopted; and be it
further
Resolved: That the New York, New Jersey Port and Harbor
Development Commission continue its work; and each State make
the necessary appropriation therefor; and that the Legislatures of
each State continue the present Bi-State Legislative Commission.
54
REPORT OF PORT AND HARBOR COMMISSION
APPENDIX A
RESOLUTION of the Board of Estimate and Apportionment
of the City of New York, adopted April 4, 1919, in relation
to the Proposed Treaty between the State of New York and
the State of New Jersey, submitted by the New York-New
Jersey Port and Harbor Development Commission.
WHEREAS, the Board of Estimate and Apportionment on or
about the 11th day of March, 1919, received from the Hon. J.
Henry Walters, President pro tem. of the Senate, a communica-
tion addressed to Hon. John F. Hylan, Mayor, and to Hon.
Robert L. Moran, President of the Board of Aldermen, reading
as follows:
66
'Chapter 426 of the Laws of 1917, State of New York,
and Chapter 130, 1917, Laws of the State of New Jersey,
created the New York & New Jersey Port & Harbor Develop-
ment Commission to study jointly and on behalf of both
States the needs of the Port of New York, and to report a
comprehensive physical and legal plan of its development
mutually agreeable to both States. This bi-State Commis-
sion, in order to present in both States complimentary legis-
lation, conferred with Governor Smith of New York, and
Governor Edge of New Jersey and the Leaders of both
Houses in both States. Following such conference on the
fifth day of February, 1919, a resolution was adopted in the
Legislature authorizing the appointment of a special com-
mittee, consisting of the Governor, Lieutenant Governor,
Speaker of the Assembly, the Chairman of the Committee
on Finance of the Senate, the Chairman of the Committee
on Ways and Means of the Assembly, the Chairman of the
Committees on Judiciary of the Senate and Assembly, the
Majority and Minority Leaders of the Senate and Assembly,
and such others as the Governor might appoint for the pur-
pose of consulting with a similar Committee from the State
of New Jersey, and the New York and New Jersey Port
and Harbor Development Commission, in relation to the
proposed treaty between New York and New Jersey. Pur-
suant to such resolution the New York Commission was
created with membership as hereinbefore indicated and in
REPORT OF PORT AND HARBOR COMMISSION
55
addition Governor Smith named the following persons as
members thereof, viz.; Hon. Charles D. Newton, Attorney-
General; Hon. Murray Hulbert, Hon. William P. Burr,
Corporation Counsel; Edward J. McGoldrick, Assistant
Corporation Counsel, and Robert C. Cumming, Legislative
Bill Drafting Commissioner. On behalf of New Jersey,
Governor Edge designated as a conference committee to
represent New Jersey the following persons: Hon. Thomas
F. McCran, Attorney-General; Hon. Clarence E. Case,
Majority Leader of the Senate; Hon. Henry E. Ackerson,
Jr., Minority Leader of the Senate; Hon. Arthur A. Pier-
son, Speaker of the Assembly; Hon. Ralph K. Kellam, and
Hon. Hugh C. Barret, Leaders of the Asssembly; and Hon.
John K. Milton, Corporation Counsel of New Jersey.
The Legislative bi-State Commission met in New York on
February fourteenth in conference with both Governors and
the members of the bi-State Port Commission and their
counsel. After preliminary discussion upon the subject
matter of the proposed treaty a sub-committee was appointed
consisting of the Attorneys General of both States and the
Majority and Minority Leaders of both Houses of both
States, and the Corporation Counsel of New York City and
Jersey City, for the purpose of drafting a proposed compact
or treaty which might be agreeable to the representatives of
both States, with instructions to report back the results of
its deliberations to the general conference of the bi-State
Commissions. Such bi-State sub-committee, after several
sessions and after prolonged discussion and deliberation,
submitted on March first, to the general conference a pro-
posed compact or treaty for its consideration. In the sub-
mission of such proposed compact or treaty the representa-
tives of each State reserved the right to further criticize or
amend such proposal.
During the deliberations of the sub-committee as to the
context of the articles of the proposed compact or treaty,
Mr. Burr, Corporation Counsel of New York, on behalf of
the State of New York, suggested that the approval of the
City of New York be first obtained before the treaty should
become binding and effective.
The importance of the subject matter to the City of New
York, its future development, its harbor development, its
prestige as a leading commercial port in this country and in
order that the interests of the great metropolis might be fully
safe-guarded in every respect, the New York State Commit-
tee requested the bi-State Commission to suspend further
56
REPORT OF PORT AND HARBOR COMMISSION
consideration of the report of the sub-committee until after
a compact or treaty had been submitted to the officials of
New York City; the members of the New York State Com-
mission expressly reserving decision as to its final action until
an examination and investigation, and a report of comment,
criticism, suggestion, amendment, approval or disapproval
thereof was made upon the part of the City of New York.
The representatives of New Jersey acquiesced and granted
the request, and accordingly the conference adjourned to
await the call of the Chairman, dependent wholly upon the
action and attitude of the City of New York.
As Chairman of the New York Legislative Commission,
and as Leader of the Senate, I have now the honor to trans-
mit to you copies of the proposed compact, treaty or agree-
ment and to request you officially to advise us whether or
not the proposed instrument meets with your approval and
whether or not there are any criticisms, suggestions or amend-
ments which you wish to offer in furtherance of and to safe-
guard the city's interest.
The comprehensive scheme proposed by the bi-State Port
and Harbor Development Commission involves the waiving
of very material power and authority now lodged in the
City of New York over the conduct and supervision of its
water fronts and appurtenances. It comprehends the delega-
tion of regulatory powers to such commission. On the other
hand it is suggested that broad powers be granted to such
Commission by the respective States so as to protect the
City of New York and the Port of New York and to encour-
age and make attractive the investment of millions of dollars
for the development of a great port beneficial to both States
under a comprehensive plan which would unify and harmon-
ize operation of a great port. Because of the objections
and suggestions made on behalf of the City of New York
and called to the attention of the New York State Commis-
sion, the members of the Legislature of this State are unwill-
ing to proceed with the proceedings involving the entry into
such compact or treaty, or to create such Port Authority as
proposed with or without power until the City of New York,
through its elected officials, has made its position in relation
to the same definitely known. The responsibility of the
acceptance or rejection of the proposed comprehensive
scheme must now rest with the City of New York.
The New York and New Jersey Port and Harbor Develop-
ment Commission will contemporaneously herewith submit
to you copies of its report to the Legislature.
REPORT OF PORT AND HARBOR COMMISSION
57
and
The New York State Commission desires to urge you to
give the matter your immediate attention and serious con-
sideration and beg you to report back with all convenient
speed.
Respectfully submitted,
J. HENRY WALTERS."
WHEREAS, accompanying said communication, the proposed
Treaty or Agreement between the State of New York and the
State of New Jersey, submitted by the New York-New Jersey
Port and Harbor Development Commission, was transmitted,
which proposed Treaty reads as follows:
"WHEREAS, In the year 1834 the States of New York and
New Jersey did enter into an agreement fixing and deter-
mining the rights and obligations of the two States in and
about the waters between the two States, especially in and
about the bay of New York and the Hudson River; and ·
WHEREAS, Since that time the commerce of the port of
New York has greatly developed and increased and the
territory in and around the port has become commercially
one center or district; and
WHEREAS, It is confidently believed that a better co-ordina-
tion of the terminal, transportation and other facilities of
commerce in, about and through the Port of New York, will
result in great economies, benefiting the Nation, as well as
the two States of New York and New Jersey; and
WHEREAS, The future development of such terminal, trans-
portation and other facilities of commerce, will require the
expenditure of large sums of money, and the cordial co-opera-
tion of the States of New York and New Jersey in the
encouragement of the investment of capital, and in the
formulation and execution of the necessary physical plans;
and
WI HEREAS, Such result can best be accomplished through
the co-operation of the two States by and through a joint or
common agency.
Now, THEREFORE, The said States of New Jersey and
New York do supplement and amend the existing agreement
of 1934 in the following respects:
ARTICLE I. They agree to and pledge, each to the other,
faithful co-operation in the future planning and develop-
ment of the Port of New York, holding in high trust for the
58
REPORT OF Port and HARBOR COMMISSION
:
benefit of the Nation the special blessings and natural advan-
tages thereof.
ARTICLE II. To that end the two States do agree that
there shall be created and they do hereby create a district to
be known as the 'Port of New York District' (for brevity
hereinafter referred to as 'The District') which shall
embrace the territory bounded and described as follows:
(Note: This territory is to be the territory substantially as
indicated in the map presented by the New York, New
Jersey Port and Harbor Development Commission, accom-
panying this report, the description and boundary lines in
such map are approved generally and are to be worked out
in detail and inserted herein by the Commission.) The
boundaries of said district may be changed from time to
time by the action of the Legislature of either State con-
curred in by the Legislature of the other.
،
ARTICLE III. There is hereby created The Port of
New York Authority,' (for brevity hereinafter referred to
as the 'Port Authority'), which shall be a body corporate
and politic, having the powers and jurisdiction hereinafter
enumerated, and such other and additional powers as shall be
conferred upon it by the Legislature of either State concurred
in by the Legislature of the other or by Act or Acts of Con-
gress, as hereinafter provided.
ARTICLE IV. The Port Authority shall consist of six
commissioners three resident voters from the State of
New York, two of whom shall be resident voters of the City
of New York, and three resident voters from the State of
New Jersey, two of whom shall be resident voters within
the New Jersey portion of the district, the New York mem-
bers to be chosen by the State of New York and the New
Jersey members by the State of New Jersey, in the manner
and for the terms fixed and determined by the Legislature
of each State respectively.
Each commissioner may be removed from office as pro-
vided by the Law of the State for which he shall be appointed.
ARTICLE V. The Commissioners shall, for the purpose
of doing business, constitute a board and may adopt suitable
by-laws for its management.
ARTICLE VI. The Port of Authority shall constitute
a body, both corporate and politic, with full power and
authority to purchase, construct, lease and/or operate any
terminal or transportation facility within said district; and
to make charges for the use thereof; and for any of such
purposes to own, hold, lease and/or operate real or personal
REPORT OF PORT AND HARBOR COMMISSION
59
1
property, to borrow money and secure the same by bonds
or by mortgages upon any property held or to be held by it.
No property now or hereafter vested in or held by either
State, or by any county, city, borough, village, township or
other municipality shall be taken by the Port Authority,
without the authority or consent of such State, county, city,
borough, village, township or other municipality, nor shall
anything herein impair or invalidate in any way any bonded
indebtedness of such State, county, city, borough, village,
township or other municipality, nor impair the provisions
of law regulating the payment into sinking funds of revenues
derived from municipal property, or dedicating the revenues
derived from any municipal property to a specific purpose.
The powers granted in this article shall not be exercised
by the Port Authority until the Legislatures of both States
shall have approved of a comprehensive plan for the develop-
ment of the Port as hereinafter provided; provided, how-
ever, that the Legislature of either State with the approval
of the Legislature of the other State may from time to time
authorize the Port Authority to proceed with specific matters.
ARTICLE VII. The Port Authority shall have such
additional powers and duties as shall hereafter be delegated
to or imposed upon it from time to time by the action of
the Legislature of either State concurred in by the other.
Unless and until otherwise provided, it shall make an annual
report to the Legislature of both States setting forth in
detail the operations and transactions conducted by it pur-
suant to this agreement and any legislation thereunder.
The Port Authority shall not pledge the credit of either
State except by and with the authority of the Legislature
thereof.
ARTICLE VIII. Unless and until otherwise provided,
all laws now or hereafter vesting jurisdiction or control in
the Public Service Commission, or the Public Utilities Com-
mission, or like body, within each State respectively, shall
apply to railroads and to any transportation, terminal or
other facility owned, leased, operated or constructed by the
Port Authority, with the same force and effect as if such
railroad, or other transportation, terminal or other facility
were owned, leased, operated or constructed by a private
corporation.
ÂRTICLE IX. The Legislatures of the two States, prior
to the signing of this agreement, or thereafter as soon as may
be practicable, will adopt a plan or plans for the comprehen-
sive development of the Port of New York. Thereafter, no
60
REPORT OF PORT AND HARBOR COMMISSION
change in such plans shall be made except by and with the
approval of the Legislature of both States.
ARTICLE X. The Port Authority shall from time to
time make plans for the further development of said district,
supplementary to or amendatory of any plan theretofore
adopted and when such plans are duly approved by the Legis-
latures of the two States, they shall be binding upon both
States with the same force and effect as if incorporated in
this agreement.
ARTICLE XI. The Port Authority may from time to
time make recommendations to the Legislatures of the two
States or to the Congress of the United States, based upon
study and analysis, for the better conduct of the commerce
passing in and through the Port of New York, the increase
and improvement of transportation and terminal facilities
therein and the more economical and expeditious handling
of such commerce.
ARTICLE XII. The Port Authority may petition any
Interstate Commerce Commission (or like body), Public
Service Commission, Public Utilities Commission (or like
body), or any other federal, municipal, State or local author-
ity, administrative, judicial or legislative, having jurisdic-
tion in the premises, after the adoption of the comprehensive
plan as provided for in Article IX for the adoption and
execution of any physical improvement, change in method,
rate of transportation, system of handling freight, warehous
ing, docking, lightering or transfer of freight, which, in the
opinion of the Port Authority, may be designed to improve
or better the handling of commerce in and through said dis-
trict, or improve terminal and transportation facilities
therein. It may intervene in any proceeding affecting the
commerce of the Port.
ARTICLE XIII. The Port Authority shall elect from
its number a Chairman, Vice-Chairman and may appoint
such officers and employees as it may require for the per-
formance of its duties and shall fix and determine their
qualifications and duties.
ARTICLE XIV. Unless and until the revenues from
operations conducted by the Port Authority are adequate to
meet all expenditures, the Legislatures of the two States
shall appropriate, annually, for the salaries, office and other
administrative expenses, in equal amounts, such sum or sums
as shall be recommended by the Port Authority and approved
by the Governors of the two States, not exceeding for each
State the sum of $100,000.
REPORT OF PORT AND HARBOR COMMISSION
61.
ARTICLE XV. Unless and until otherwise determined
by the action of the Legislatures of the two States, no action
of the Port Authority shall be binding unless taken at a
meeting at which at least two members from each State are
present and unless four votes are cast therefor, two from
each State. [Each State reserves the right hereafter to
provide by law for the exercise of a veto power by the Gov-
ernor thereof over any action of the Port Authority.]
ARTICLE XVI. Unless and until otherwise determined
by the action of the Legislatures of the two States, the Port
Authority shall not incur any obligations for salaries, office
or other administrative expenss, within the provisions of
Article XIV prior to the making of appropriations adequate
to meet the same.
ARTICLE XVII. The Port Authority is hereby author-
ized to make suitable rules and regulations not inconsistent
with the Constitution of the United States or of either State,
and subject to the exercise of the power of Congress for the
improvement of the conduct of navigation and commerce,
which when concurred in by the Legislatures of both States,
shall be binding and effective upon all persons and corpora-
tions affected thereby.
ARTICLE XVIII. The two States shall provide penal-
ties for violations of any order, rule or regulation of the
Port Authority, and for the manner of enforcing the same.
ARTICLE XIX. The territorial or boundary lines estab-
lished by the agreement of 1834, or the jurisdiction of the
two States established thereby shall not be changed except
as herein specifically modified.
""
ARTICLE XX. Definitions. The following words as
herein used shall have the following meaning: Transpor-
tation facility" shall include railroads, steam or electric,
motor truck or other street or highway vehicles, tunnels,
bridges, boats, ferries, car-floats, lighters, tugs, floating eleva-
tors, barges, scows or harbor craft of any kind, air craft suit-
able for harbor service, and every kind of transportation facil-
ity now in use or hereafter designed for use for the transpor-
tation or carriage of persons or property. "Terminal
facility shall include wharves, piers, slips, ferries, docks,
dry docks, bulkheads, dock-walls, basins, car-floats, float-
bridges, grain or other storage elevators, warehouses, cold
storage, tracks, yards, sheds, switches, connections, overhead
appliances, and every kind of terminal or storage facilty
now in use or hereafter designed for use for the handling,
storage, loading or unloading of freight at steamship, rail-
"
62
REPORT OF PORT AND HARBOR COMMISSION
66
66
road or freight terminals. "Railroads" shall include rail-
ways, extensions thereof, tunnels, subways, bridges, elevated
structures, tracks, poles, wires, conduits, power houses, sub-
stations, lines for the transmission of power, car-barns, shops,
yards, sidings, turn-outs, switches, stations and approaches
thereto, cars and motive equipment. Facility" shall
include all works, buildings, structures, appliances and
appurtenances necessary and convenient for the proper con-
struction, equipment, maintenance and operation of such
facility or facilities or any one or more of them. Real
Property" shall include land under water, as well as uplands,
and all property either now commonly or legally defined as
real property or which may hereafter be so defined.
"Personal Property" shall include choses in action and all
other property now commonly or legally defined as personal
property or which may hereafter be so defined. To lease
shall include to rent or to hire. Rule or regulation,” until
and unless otherwise determined by the Legislatures of both
States, shall mean any rule or regulation not inconsistent
with the Constitution of the United States or of either State,
and, subject to the exercise of the power of Congress, for the
improvement of the conduct of navigation and commerce
within the district, and shall include charges, rates, rentals
or tolls fixed or established by the Port Authority; and until
otherwise determined as aforesaid, shall not include matters
relating to harbor or river pollution. Wherever action by
the Legislature of either State is herein referred to, it shall
mean an act of the Legislature duly adopted in accordance
with the provisions of the Constitution of the State.
66
Respectfully submitted,"
""
"
In addition thereto "A Preliminary Report of Counsel to
Accompany the Tentative Draft of Proposed Treaty" was also
furnished to the Board. This Report, after an exhaustive presen-
tation of the legal and economic bases on which the Proposed
Treaty is claimed to rest, concludes as follows (p. 139):
"CONCLUSIONS
"From all of which it would appear that the States of
New Jersey and New York may join in the consummation
either of an original treaty, or, preferably, one amendatory
of and supplementary to the Treaty of 1834, preserving in
full the sovereignty of each State, but pledging each to the
other perpetual co-operation in the development of the port
REPORT OF PORT AND HARBOR COMMISSION
63
and
which is common to both. For the purpose of carrying out
the comprehensive development of the port, they may create an
agency vested with as little or as great power as it shall please
the States to grant. Included in this power is the power to
take and hold real estate, to construct, maintain and operate
every conceivable kind of terminal facility, and to regulate,
within the limitations arising from the paramount power of
Congress, and to govern the operation of such facilities.
Such a body may be authorized to borrow money upon the
credit of the States, to the extent that each State is willing
to pledge its credit or to borrow upon its own credit. Upon
its acquisition of property, it may itself hold and operate it
or lease it to private enterprise upon satisfactory terms. It
can receive grants of the power of eminent domain which
each State possesses. It can receive power from Congress to
the extent that it pleases Congress to grant power, and like
the United States toward the Panama Canal, the two States
may declare that they create and hold all of these powers
and properties under a sacred trust for the benefit of the
Nation as a whole.”
WHEREAS, public hearings were had before this Board on the
26th and 27th days of March, 1919, at which public hearings
those in favor of the Proposed Treaty or Agreement and those
opposed thereto were fully heard and the Board having given
careful consideration to the arguments presented pro and con and
to all the facts produced, it is hereby
Resolved, That while the Board of Estimate and Apportion-
ment is impressed with the necessity for co-operation between the
two States of New York and New Jersey to develop the Port of
New York, and to that end is ready to immediately consider and
carefully study any comprehensive plan having that for its object,
the Board is fully convinced that the presentation and adoption
of such comprehensive plan should precede the making of the
Proposed Treaty granting such vast powers for all time to the
Port Authority in the Port District to be created thereby, and
recommends that the present existing New York-New Jersey Port
and Harbor Development Commission appointed under Chapter
426, Laws of 1917, State of New York, and Chapter 130, Laws
of 1917, State of New Jersey, be continued in existence so as to
permit the said Commission, as a result of the studies it has
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REPORT OF PORT AND HARBOR COMMISSION
already made and is still making, to present such comprehensive
physical plan for examination and study, together with a com-
prehensive statement of the ways and means to carry such plan
into effect.
The said New York-New Jersey Port and Harbor Development
Commission was appointed
66
to negotiate or agree upon a joint report, recommending
a policy to be pursued by the State of New York, the State of
New Jersey and the United States by legislative enactment
or treaty or otherwise, to the end that the said port shall be
efficiently and constructively organized and furnished with
modern methods of piers, rail and water and freight facili-
ties and adequately protected in the event of war. Before
making such report, such commission shall make a thorough
investigation of port conditions in this country and shall
take and employ such engineering, legal or other professional
skill and assistance as it may need for the effective working
out of a comprehensive and adequate interstate and federal
port policy, to meet commercial needs in times of peace and
the protection of the harbor and adjacent localities in times
of war."
The Board of Estimate and Apportionment will give its most
earnest thought and consideration to devising methods by which
such comprehensive plan, if approved, may be successfully
carried into operation, either through the Proposed Treaty or
such other legal procedure as may be deemed necessary or advis-
able. As matter of fact, the Treaty proposed defers the exer-
cise of any real power by the Port Authority until the adoption
of the comprehensive plan (Article VI). Therefore, no harmful
delay can result from the change in procedure now recommended
by this Board.
The City of New York has for many years been engaged in
the development of the Port through its Dock Department and
Sinking Fund Commission, and has made great progress since
1871 in carrying out such port and harbor development and
improvements.
In the New York Harbor case, recently decided by the Inter-
state Commerce Commission, December 17, 1917, Commissioner
Harlan said:
REPORT OF PORT AND HARBOR COMMISSION
65
LACK OF CENTRAL ADMINISTRATIVE CONTROL
IN NEW JERSEY
"The inactivity of the municipalities and of the State
authorities in New Jersey with respect to the improvement
and development of the west side of the harbor is noticeable.
The contrast between the notable progress of the city of New
York, on the one hand, and the inaction of New Jersey on
the other is striking.
This difference in policy is attributable primarily to a
difference in conditions. For more than forty years, as
previously explained, New York's whole harbor policy has
been in the hands of a single department, which now has
jurisdiction not only in Manhattan but in the Bronx, in
Brooklyn, and in Staten Island, all of which are a part of the
greater city. The results of this concentration of authority
in a single body have been most beneficial. The whole Port,
or such part of it as lies in the State of New York, can be
developed as a unit, with due regard to the advantage and
disadvantage of each part. If all the large steamers can not
be accommodated on the west side of Manhattan they may
be accommodated in South Brooklyn; if a railroad applicant
for pier space on the east side of Manhattan can not be
accommodated there, it may be conveniently located in Wall-
about Bay; if the ferry service between Manhattan Island
and Staten Island is unsatisfactory, the city of New York
constructs and operates municipal ferryboats to afford the
desired service; and if the ferries operating across the East
River are not adequate to carry the rapidly increasing num-
ber of passengers traveling between Manhattan Island and
Long Island, tunnels are constructed under the river and
subway trains operated through them. The advantages
which the city derives from the concentration of Port
Authority in a single administrative body are numerous and
obvious.
(
In New Jersey the opposite conditions prevail. In that
portion of the State which is commonly regarded as being
within the metropolitan district,' embracing all or parts of
the counties of Hudson, Bergen, Passaic, Essex, Union and
Middlesex, there are scores of cities, towns and villages, each
of which has separate control of its own municipal affairs.
Opposite Manhattan Island, on the west side of the Hudson
River, are the towns of Edgewater, Guttenburg and Wee-
hawken and the cities of Hoboken and Jersey City, and far-
ther to the south is the city of Bayonne. Each of these
3
66
REPORT OF PORT AND HARBOR COMMISSION
municipalities has a separate corporate existence, and each
has the power, independently of the others, to take such
action as it pleases with reference to the development of its
own water front, or to take no action at all.
In 1910, the then Governor of New Jersey appointed a
commission of three members to study the problem of port
development, and especially to find some method of accommo-
dating large vessels in the harbor without extending the
piers farther into the river. That commission worked in
co-operation with a similar body representing the State of
New York. In 1911, following the report of the New Jersey
Commission to the Legislature of that State, the New Jersey
Harbor Commission was created, consisting of five members.
In 1915 this commission was merged, together with several
others, into the New Jersey Board of Commerce and Naviga-
tion. Investigations conducted by this board led it to the
conclusion that the present adjustment of freight rates results
in injustice to New Jersey, and it therefore recommended
to the Governor of that State that he appoint a special com-
mittee to discover ways and means of procuring a more
equitable rate adjustment. That committee, which is known
as the Committee on Ways and Means to Prosecute the
Case of Alleged Rate and Service Discrimination at the Port
of New York,' was duly appointed, and it has joined with
the New Jersey Board of Commerce and Navigation, with
the cities of Newark, Hoboken, Jersey City and Elizabeth,
in instituting the present proceeding.
(
There is no department or board in New Jersey, either
State or municipal, whose powers are analogous to those
possessed by the Dock Department of the City of New York.
The New Jersey Board of Commerce and Navigation has
power to lease or sell riparian lands belonging to the State;
to inspect power vessels on inbound waterways; to aid in
the movement for the construction of a ship canal across
the State; to aid the municipalities in developing their water
fronts; and generally to supervise the development of port
facilities. The board has no power to construct docks or
bulkheads, to dig channels, or to provide the funds which
are needed for the proper development of the harbor. It
can accomplish those things, if at all, only indirectly, by
using its influence with the several municipalities and urging
them to co-operate. Even the Legislature of the State of New
Jersey is forbidden, by a constitutional provision, to incur
a debt of more than $100,000 without the consent of the
people of the State.
*
*
*
*
*
*
*
*
*
REPORT OF PORT AND HARBOR COMMISSION
67
The result of the division of authority in New Jersey and
of the lack of foresight on the part of individual municipali-
ties is strikingly evidenced at Jersey City. Located almost
in the heart of one of the best harbors in the world, with
more than five miles of frontage on the lower Hudson River
and upper New York Bay, and served by five of the country's
great trunk lines of railroad; in short, possessing all the
qualifications which a seaport of the first rank should have
Jersey City has been content to see her valuable water front
' turned into a huge railroad yard.' Of her five miles of
shore line more than 90 per cent is owned by the carriers.
Of the 133 long piers on the New Jersey side of the harbor
only one is publicly owned. An engineer employed by the
municipal authorities of Jersey City in 1915 to study the
general conditions of the water front and to report on the
opportunities for developing it, discovered that of the total
harbor frontage of 26,454 feet the city owned but 125 feet;
and he could only report that Jersey City, 'intended by
nature to be a great seaport,' had 'failed lamentably in the
realization of this manifest destiny' and that she had
'entirely neglected to take advantage of these natural and
artificial opportunities for greatness in maritime affairs.'
*
*
*
*
*
*
*
*
*
Since the very earliest days of transportation through the
Erie Canal it has been customary to apply the same rates by
boat from Manhattan and Brooklyn as from Jersey City and
Hoboken, and the same policy will be followed when the
new Barge Canal is completed."
J
This Board invites and will welcome the active and earnest
co-operation of New Jersey in any movement tending to improve
and develop the Port of New York in all its parts and to the
fullest extent, including matters relating to river and harbor
pollution, which now constitutes a grave menace to the harbor of
New York, and the abatement of the nuisance arising from the
poisonous fumes generated in the factories or plants situated on
the New Jersey shore opposite Riverside Drive, which nuisance
is most injurious to the health and detrimental to the property of
the people residing in that locality.
A true copy of resolution adopted by the Board of Estimate
and Apportionment, April 4, 1919.
:
JOSEPH HAAG,
Secretary.
68
REPORT OF PORT AND HARBOR COMMISSION
APPENDIX B
PRELIMINARY REPORT OF COUNSEL TO ACCOM-
PANY THE TENTATIVE DRAFT OF PROPOSED
TREATY AMENDATORY AND SUPPLEMENTARY
TO THE NEW YORK-NEW JERSEY TREATY OF
1834.
Introduction
The need for enlarging the port and terminal facilities of our
country, including those of New York, is no longer the subject of
debate. In a public announcement by the United States Shipping
Board, made August 4th last, that body says:
"A doubling, and perhaps trebling, of docks, piers, marine rail-
ways, and terminal facilities in general of Atlantic, Gulf, and
Pacific ports will probably be called for by the swiftly increasing
American merchant marine. To provide for the fullest possible
service of the ships, once they are released from traffic, even new
ports may become necessary.
"The survey of port facilities undertaken shows them taxed to
capacity by the present shipping — in many instances overtaxed,
and in nearly all instances, unless they are speedily expanded,
facing serious congestion. This is especially true of the facilities
of New York Harbor, the greatest problem of port development in
the world to-day.”
United States Interstate Commerce Commissioner James S.
Harlan, in a report to the Director General of Railroads (March
30, 1918), says, referring to the Port of New York: "Wholly
aside from the extraordinary volume of the traffic, to and through
the port, of the allied and of our own military and naval establish-
ments at this time, new and enlarged terminal facilities must be
provided, apparently on a liberal scale and on both sides of the
river, if the port of New York is to hold its commanding place in
our domestic and foreign commerce.'
"The Iron Age" for June 20th last reports that there has
already been established a "red-flag zone" covering an area com-
prising the New England States, eastern and southern New York,
REPORT OF Port and HARBOR COMMISSION
69
eastern Pennsylvania, New Jersey, Delaware, and eastern Mary-
land, exclusive of Baltimore, making a line roughly bounded by
Albany, Altoona, Shippensburg, Rutherford Yards, Baltimore and
the balance of Maryland, and the Atlantic Ocean, into which zone,
by the action of the War Industries Board and the Fuel and Rail-
road Administrations no new factories may be established until
further notice" because it is already so congested with steel-works,
munition plants, factories of all kinds, and shipyards that it is
practically impossible to secure adequate supplies of labor, coal,
and satisfactory transportation facilities for existing concerns.'
""
In the Joint Report made to the Legislature of the State of New
York, January 3, 1917, by the Governor's Market Commission,
the Food Supply Committee appointed by the Mayor of the city,
and the Wicks Legislative Committee, approved also by the Food
and Market Committee of the New York State Mayors' Confer-
ence, it is stated: "The improvement and enlargement of exist-
ing terminal facilities and the addition, where necessary, of
further terminal market facilities, at points convenient for dis-
tribution, would reduce the cost of handling foodstuffs.
Improved terminal facilities would not only reduce the ultimate
cost of food to the consumer but would permit dealers to do busi-
ness more economically and would provide them with facilities
for doing a much larger business.'
22
*
* *
Governor Whitman, in transmitting the Preliminary Report of
the New York, New Jersey Port and Harbor Development Com-
mission under date of February 18, 1918, said: "The time has
come to look forward and to plan in advance for the future
demands that will be made upon the port. Haphazard, piecemeal
attempts to solve the terminal problem at the port will hinder, not
hasten, the desired solution.
This [work of planning]
cannot be done by any commission representing either state alone.
The task must be a joint task." Indeed, the New York, New
Jersey Port and Harbor Development Commission itself
represents the registered will and purpose of the two states to
engage in this joint and common undertaking.
*
*
The problem presented to the Commission has many facets. The
engineering, economical, commercial and financial phases of the
problem are being thoroughly studied and are to be treated in a
70
REPORT OF PORT AND HARBOR COMMISSION
separate report. In the Preliminary Report of the Commission
(January 26, 1918) it was stated that in addition to the engi-
neering and commercial phases of the problem, there must be
worked out "a sound and practicable legal plan." This report
deals with the legal phases of the problem only and with the ten-
tative solution to be offered for public discussion. For this pur-
pose it is assumed that the Commission will conclude from its
study that comprehensive development of the port facilities must
come about through the co-operation of the two states, joining,
where necessary, with the federal and municipal authorities, act-
ing through some form of agency which shall be vested with broad
legal powers to build, maintain and operate port facilities, to
improve commerce and navigation at the port, to borrow money
for such purposes, and vested with adequate power to deal with
all phases of the matter whether such facilities be under public or
private ownership or operation, or both.
At the threshold, we face the fact of dual political sovereignty.
The port lies in two states, each an independent sovereignty in its
own land. The legal problem, therefore, cannot so easily be stated
or solved as it might be for New Orleans, Philadelphia, Boston or
Baltimore. Again, traffic between two states across boundary
waters is interstate commerce. Neither one state nor the other can
wholly regulate the port. Yet in its recent decision in the New
York Harbor Case, No. 8994, the Interstate Commerce Commis-
sion held (p. 713) that "Historically, commercially and indus-
trially the cities of northern New Jersey within the metropolitan
district constitute a part of New York," and that this fact is true
is shown by the most casual inspection of the charts annexed to
the opinion, indicating the growth in population and assessed valu-
ation, in the number of persons engaged in manufacturing, in the
capital invested in manufacture and the value of manufactured
products in the northern counties of New Jersey, as well as in
greater and lesser New York. These show that the progress of
the northern counties of New Jersey parallels the progress of the
communities on the corresponding New York side of the port.
The progress is interrelated and the progress of each part reacts
upon the other.
The Federal Census Bureau issues a compilation of what is
called "The New York City Metropolitan District." It takes in
REPORT OF PORT AND HARBOR COMMISSION
71
not only Greater New York City (comprising Bronx, Kings, New
York, Queens and Richmond counties), but the whole of West-
chester county (with such cities as New Rochelle, Mount Vernon
and Yonkers) besides Bergen, Essex, Hudson, Middlesex, Passaic
and Union counties in New Jersey (including such cities as Jersey
City, Hoboken, Harrison, Elizabeth, Rahway, Newark, Orange,
Montclair, Paterson, etc.). This district embraces 616,928 acres
of territory, of which but 183,555 acres constitute the area of New
York, and 433,373 acres constitute the area of the outlying terri-
tory. The estimated population of the city in 1914 was 5,333,539,
and that of the outlying territory but 1,936,568, the total for the
district being 7,270,107. As defined in the census of 1910, the
"New York City Metropolitan District" includes, in addition to
the central city, fifteen cities, forty-one boroughs, two villages,
seventeen towns and seventeen townships.
The Interstate Commerce Commission refers to the great and
valuable results that may be expected to follow from the creation
of the New York, New Jersey Commission.
The problem presented to the Port Commission is, how shall
this interstate relationship -now politically divided-be effec-
tively united to promote the welfare of the two states and the
nation? No constructive solution, in our opinion, can be found
which fails to take full account of the historical factors and the
legal questions involved.
The Early Commercial Relations Between New York and
New Jersey
In 1798, Robert Livingston secured from the state of New York
a monopoly for the operation of steamboats upon the waters of
the state. With Livingston's support and on the basis of the
state monopoly, Robert Fulton built the "Clermont." On the
7th of August, 1807, she traversed the one hundred and fifty miles
between New York and Albany in thirty-two hours and thereby
won for her owners "the sole right to use steam on the lakes and
rivers of New York State for twenty years to come." (McMaster's
History of the People of the United States, Vol. 3, pp. 490-491).
In 1808, John Cox Stevens at Hoboken built the "Phoenix,"
intended to ply as a passenger boat between New Brunswick and
72
REPORT OF PORT AND HARBOR COMMISSION
A
New York, but the monopoly held by Fulton and Livingston pre-
vented that vessel from entering the waters subject to the juris-
diction of New York State. Accordingly Stevens sent her by sea
to the Delaware and ran her between Philadelphia and Trenton.
year later Fulton built another boat called the "Raritan." The
"Raritan" made three trips a week between New Brunswick and
New York. McMaster tells us: "The route between the two chief
cities of the country was thus partly by land and partly by water,
and was strongly recommended to such as wished to avoid dust,
mosquitoes, and a dangerous ferry. The traveller could leave
Philadelphia at seven o'clock on any Monday, Wednesday, or
Friday morning by the Phoenix, enjoy a cool and pleasant sail up
the Delaware, breakfast and dine on board, and reach Bordentown
at one. From Bordentown he went by stage to New Brunswick,
where he must spend the night. At six the next morning the
steamboat Raritan carried him to New York." By 1810 the
"Raritan" and the "Phoenix" ran in connection with each other
as parts of one route. It was then possible at a cost of $5.00 in
money and twenty-six hours in time to cover the ninety miles which
separated Philadelphia from New York, three times a week. The
profits of the " Raritan" trade, twelve shillings for each passenger,
went to the Fulton and Livingston Company. This provoked the
wrath of the people of New Jersey and in the legislature the mon-
opoly of Fulton and Livingston was boldly attacked. New Jersey
demanded that if its citizens could not build a steamboat and send
it across the Hudson to New York without the permission of Ful-
ton and Livingston, then no boat having the Fulton and Livingston
license should enter the waters of New Jersey. In consequence of
this demand, New Jersey passed an act which (says McMaster)
"greatly enraged the monopolists." In the New York statute it
was provided that if anyone should navigate a steamboat within
the jurisdiction of the state of New York without a license, the
party aggrieved might "seize the boat, engine, tackle, and
apparel." New Jersey, referring to this New York law, passed
a statute which provided that if anyone did seize such a boat
belonging to a citizen of New Jersey and lying on the waters
between the two states, the owners might seize in return any boat
belonging to any citizen of New York found in any waters of New
REPORT OF PORT AND HARBOR COMMISSION
73
Jersey. The New York company thereupon threatened to with
draw their boat, place it on the Sound, grant no licenses to run
steamboats to New Jersey, stop the ferry at Paulus Hook and ruin
New Brunswick. This unhappy controversy, however, was settled
by the courts. A rival of the New York company sprang up and a
boat called the "Hope
Hope" was soon running between New York and
Albany without a license. Fulton and Livingston applied for an
injunction which the New York Court of Appeals sustained but
which the United States Supreme Court reversed. Thereby was
established the great authority of Gibbons v. Ogden, 9 Wheat. 1;
6 L. ed. 23 (see also Gibbons v. Ogden, 17 Johns. (N. Y.) 488),
holding that the legislature of the state of New York had no power
to grant a monopoly upon navigable waters and that since traffic
between the two states constituted interstate commerce the power
to regulate such commerce lay with Congress.
The Boundary Dispute
The history of the boundary dispute between the two states has
been well told by two judges - by Judge Garrison in the case of
Central Railroad of New Jersey v. Jersey City, 70 N. J. L., 41
Vroom 81, and Judge Lucius Q. C. Elmer in State v. Babcock, 30.
N. J. L. 29. (Judge Elmer was in fact one of the Commissioners
representing New Jersey in the negotiations that finally brought.
into existence the treaty of 1833-4.)
The lands and territory now constituting the states of New
York and New Jersey, including the Hudson River, were origi-
nally granted by Charles II in 1664 to James, Duke of York, who
became vested by reason of this grant with both governmental and
proprietary rights on each side of the waters that separated the
two colonies. The Duke granted to Lord Berkeley and Sir George
Carteret the territory now known as the State of New Jersey,
describing it as
“All that tract of land adjacent to New England and lying and
being to the west of Long Island and Manhitas Island, and
bounded on the east by the main sea, and part of Hudson's river,
and hath upon the west the Delaware Bay and to the northward
as far as the northernmost branch of said bay or the river of Dela-
ware, which is forty-one degrees and forty minutes of latitude,
74
REPORT OF PORT AND HARBOR COMMISSION
and crosses over thence in a straight line to Hudson's river in
forty-one degrees of latitude."
Between the date of this grant and the Revolutionary War, the
charters of New York City and the proceedings of the New York
authorities indicate that it had always been claimed by New York
that the whole of the Hudson River, up to the low water mark on
the westerly shore, belonged to that state. The war of the Revolu-
tion resulted in New York and New Jersey emerging as free and
sovereign states. After the Revolution, when it appeared that if
New York's claim were acquiesced in, all the wharves and
improvements on the Jersey shore would be subject to the control
of New York, New Jersey claimed that by conquest from the
Crown the right of New Jersey was extended to the middle of the
river. Thus, in 1806 New Jersey passed a statute in which it
recited that it had become "invested with full right and lawful
authority to exercise jurisdiction in and over the Hudson river
and the main sea and all the ports, harbors and havens lying ada-
cent to and along the Jersey shore and coast in such. manner as
belongs to a sovereign and independent state to use and exercise."
Judge Washington decided, however, that the grant to New
Jersey limited its territory to the eastern shore of the Delaware
River and Bay, a decision acknowledged by the courts of New
Jersey to be correct, (see State v. Davis, 1 Dutcher 386) and,
what was still more adverse to the claim of New Jersey in refer-
ence to the Hudson, the Supreme Court of the United States laid
down the doctrine that "When a great river is the boundary
between two nations or states, if the original property is in neither,
and there be no convention respecting it, each holds to the middle
of the stream;""when, as in this case," said the court, "one state
is the original proprietor, and grants the territory on one side
only, it retains the river within its own domain, and the newly
created state extends to the river only;" and upon this principle
the United States Supreme Court held that the Ohio River was
exclusively within the territorial limits of Kentucky, and that
Indiana had no jurisdiction over or right to the river. Handly's
Lessee v. Anthony, 5 Wheat 374.
This controversy over the boundaries was a sore spot in the rela-
tions between the two states, which the statesmen on both sides of
the Hudson tried to remove. In 1806, New Jersey appointed a
REPORT OF PORT AND HARBOR COMMISSION
75
commission to meet with a similar commission appointed by New
York to make an agreement to settle and determine this boundary
dispute. Such a commission met in 1807 but reached no agree-
ment. In 1826, the Deputy Sheriff of Richmond County of New
York was arrested and indicted by the New Jersey authorities for
serving process within the jurisdiction of New Jersey. In 1828,
Governor Williamson of New Jersey addressed the Legislative
Council and General Assembly, summarizing the history of the
boundary dispute, pointing out that both in 1806 and in 1818,
New Jersey had made attempts to put an end to the dispute and
that nothing had been accomplished. In 1829, the states having
still failed to agree, New Jersey filed a bill against New York in
the Supreme Court of the United States, a summary of which is
to be found in 108 U. S. 406-410. No appearance in this suit
was ever entered by the State of New York, although various
attempts were made to compel her to appear. 3 Pet. 461; 5 Id.
283; 6 Id. 323. (The bill was finally dismissed on February
15th, 1836, two years after the confirmation by each state of the
treaty of 1834, see below.)
In 1833, Governor Marcy of New York wrote to Governor
Southard of New Jersey, expressing great regret over this unfortu-
nate boundary controversy and suggesting that another effort be
made toward an amicable adjustment. Accordingly, in 1833 an
act was passed by each state giving each of the Governors power
to appoint three commissioners to confer. These commissioners
were to meet, and if possible, to adjust the controversy between
The names of the New Jersey commissioners were:
the two states.
Hon. Theodore Frelinghuysen
James Parker
Lucius Q. C. Elmer
and the New York Commissioners were:
Benjamin F. Butler
Peter A. Jay
Henry Seymour.
They were entirely successful and the result of their discussion
was the adoption of the New York-New Jersey Treaty of 1833-4.
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REPORT OF PORT AND HARBOR COMMISSION
(Ch. 8, Laws of New York, 1834; Laws of New Jersey, 1833-34,
p. 118.) The two acts were confirmed by the Congress of the
United States, June 28, 1834. (U. S. 23 Cong. 1 sess. Sen. doc..
No. 239.) This treaty is very brief It is as follows:
The New York-New Jersey Treaty of 1834
ARTICLE 1. The boundary line between the two 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 waters between Staten Island and New Jersey,
and of Raritan Bay, to the main sea, except as hereinafter other-
wise particularly mentioned.
ARTICLE II. The state of New York shall retain its present
jurisdiction of and over Bedlow's and Ellis' Islands, and shall
also retain exclusive jurisdiction of and over the other islands
lying in the waters above mentioned, and now under the jurisdie-
tion of that state.
ARTICLE III. 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 of jurisdic-
tion 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 and New
Jersey.
2. The state of New Jersey shall have the exclusive jurisdic-
tion 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.
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77
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.
ARTICLE IV. The state of New York shall have exclusive juris-
diction of and over the waters of the Kill Van Kull, between
Staten Island and New Jersey, to the westernmost end of Shooter's
Island, in respect to such quarantine laws and laws relating to
passengers as now exist or may hereafter be passed under the
authority of that state, and for executing the same; and the said
state shall also have exclusive jurisdiction, for the like purposes,
of and over the waters of the Sound, from the westernmost end of
Shooter's Island to Woodbridge Creek, as to all vessels bound to
any port in the said state of New York.
ARTICLE V. 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 water of Raritan Bay, lying west-
ward of a line drawn from the lighthouse at Prince's Bay, to the
mouth of Mattavan Creck, subject to the following rights of prop-
erty and of jurisdiction of the State of New York:
1. The state of New York shall have the exclusive right of
property in and to the land under water, lying between the mid-
dle of the said waters and Staten Island.
2. The state of New York shall have the exclusive jurisdiction
of and over the wharves, docks and improvements made and to be
made, on the shore of Staten Island; 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
Jersey, which now exist or which may hereafter be passed.
3. The state of New York shall have the exclusive right of
regulating the fisheries between the shore of Staten Island and
the middle of the said waters, provided that the navigation of the
said waters be not obstructed or hindered.
ARTICLE VI. Criminal process issued under the authority of
the state of New Jersey, against any person accused of an offense
committed within the state, or committe. on board of any vessel
78
REPORT OF PORT AND HARBOR COMMISSION.
being under the exclusive jurisdiction of that state as aforesaid,
or committed against the regulations made, or to be made, by
that state in relation to the fisheries mentioned in the third article;
and also civil process issued under the authority of the state of
New Jersey, against any person domiciled in that state, or against
property taken out of that state to evade the laws thereof; may be
served upon any of the said waters within the exclusive jurisdic-
tion of the state of New York, unless such person or property
shall be on board a vessel aground upon, or fastened to the shore
of the state of New York, or fastened to a wharf adjoining
thereto; or unless such person shall be under arrest, or such prop-
erty shall be under seizure, by virtue of process or authority of the
state of New York.
ARTICLE VII. Criminal process issued under the authority of
the state of New York, against any person accused of an offense
committed within that state, or committed on board of any vessel
being under the exclusive jurisdiction of that state as aforesaid;
or committed against the regulations made or to be made by that
state, in relation to the fisheries mentioned in the fifth article;
and also civil process issued under the authority of the state of
New York, against any person domiciled in that state, or against
property taken out of that state to evade the laws thereof; may be
served upon any of the said waters within the exclusive jurisdic-
tion of the state of New Jersey, unless such person or property
shall be on board a vessel aground upon, or fastened to, the shore
of the state of New Jersey, or fastened to a wharf adjoining
thereto, or unless such person shall be under arrest, or such prop-
erty shall be under seizure, by virtue of process or authority of the
state of New Jersey.
ARTICLE VIII. This agreement shall become binding on the
two states when confirmed by the legislatures thereof respectively,
and when approved by the Congress of the United States.
The Purpose and Meaning of the Treaty
The treaty has been frequently passed upon by the courts both
of New York and New Jersey. In State v. Babcock, 1 Vroom 29,
the New Jersey Court held that an indictment for a nuisance by
placing wrecks in the Hudson River below low water mark on the
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79
New Jersey shore would not lie in the state of New Jersey, upon
the ground that by the compact of 1834 exclusive jurisdiction over
offences in or upon the water or lands under them resided in the
state of New York. In Central Railroad of New Jersey v. Jersey
City, 41 Vroom 81, Judge Garrison quotes with approval (p. 96)
the statement of Judge Andrews of the New York Court of
Appeals as follows: "The purpose of vesting exclusive jurisdic-
tion over these waters in the state of New York was to promote
the interests of commerce and navigation, which would, as sup-
posed, be best subserved by giving to this state the exclusive con-
trol and regulation of the waters of the bay and harbor of New
York." Judge Garrison held that what was granted over these
waters was not "sovereignty" but jurisdiction as "distinct from
sovereignty" and that in consequence the power to tax the prop-
erty under water still remained with New Jersey. On appeal to
the United States Supreme Court (209 U. S. 472), decided
April 27th, 1908, Justice Holmes delivered the opinion, saying:
(p. 479) "But we agree with the state courts that have been
called on to construe that part of the agreement, that the pur-
pose 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."
Judge Elmer, reviewing the history resulting in the Treaty of
1834, says in State v. Babcock, 1 Vroom 29, pp. 33 and 34:
"When the commissioners of New Jersey and New York again
met, in 1833, and it was found that those of the latter state
appeared to be desirous of arranging the dispute upon fair and
liberal terms, but deemed it indispensable that their great com-
mercial emporium should have the exclusive control of the police
on the surrounding waters, and full power to establish such quar-
antine regulations as should be found necessary, the commissioners
of this state deemed it wise to secure the exclusive property in the
soil to the middle of the river, and exclusive jurisdiction over the
wharves, docks, and other improvements made or to be made on
the Jersey shore, and of the vessels fastened thereto, and the
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REPORT OF PORT AND HARBOR COMMISSION
right to regulate the adjacent fisheries, leaving to New York,
which was thought to be quite as much a burthen as a privilege,
the exclusive jurisdiction over offences in or upon the waters or
the land covered by the water outside of the low water mark. As
it was thought possible that the time might come when Perth
Amboy should be an important city, like exclusive jurisdiction
over the adjacent waters to low water mark on Staten Island was
secured to this state. Nothing has since occurred to make the
propriety of this arrangement doubtful; on the contrary, there is
every reason to believe that it has secured important rights to
this state, which otherwise might have been lost.
-66
In further elucidation of this subject, it is to be noticed that
the river Delaware was never within the jurisdiction either of
this state or of Pennsylvania until, by the Revolution, the rights of
the crown were extinguished, and each state then held to the
middle. Under these circumstances, the agreement between the
two states, adopted in 1783, Nix. Dig. 824, provided that the two
states should have concurrent jurisdiction in and upon the water
of that river. Of so little importance, however, was this regula-
tion, that it was not until so lately as 1856 that any law of this
state was passed providing for the punishment of offenses com-
mitted on the river."
In People v. Central Railroad of New Jersey, 42 N. Y. 283, at
p. 295, June, 1870, Judge Smith said: "It is quite apparent, I
think, that they [the Commissioners] well and wisely considered
that the necessities of the case, the welfare of these states, the
exigencies of commerce, and the interests of the city and port of
New York in particular, in whose prosperity, as the commercial
metropolis of the country, New Jersey had, in a large degree, a
common interest, required that there should be a unity of control
over said waters, and a single and exclusive jurisdiction exercised.
over them by one of the said states."
In the same case Judge Earl said:
"At the date of this agreement [1833], certain docks and
wharves had already been made on the New Jersey side, and it
was foreseen that others might thereafter be needed and be made.
New Jersey had but little commerce and no important city or
seaport upon these waters. New York City then controlled by far
REPORT OF PORT AND HARBOR COMMISSION
81
the largest share of the commerce of this country, and these
waters were mainly important as her seaport. It was important
that this port should be subject to but one state jurisdiction, and
that its jurisdiction should be of the state possessing the city of
New York, and having by far the largest interest in regulating,
protecting and governing the port. It was clearly the intention
of the commissioners, as gathered from the whole agreement, to
place that port under the exclusive jurisdiction of the state of
New York, so that she could control and regulate it in the interest
of her great commerce and her great commercial city.
"At the time this agreement was made, New York was a large
and flourishing commercial city, with the finest port, and destined
to be one of the largest commercial emporiums in the world, while
New Jersey had no commerce, no commercial port, and no bril-
liant commercial prospects.'
""
Under an act passed in 1886, a suit was brought in the courts
of New York against one Ross to recover a penalty for depositing
dredgings from a slip in the city of New York into the waters
of the North River. Ross and his associate, in December, 1887,
dumped a scow-load of material which they dredged from a slip
in the city of New York into the river opposite New York City,
but on the Jersey side at a point about one-quarter of a mile from
the New Jersey shore. It was claimed that since the deposit had
been made within the territorial limits of New Jersey, the state of
New York had no jurisdiction to enact a law subjecting persons
to liability for an act done within the territory of that state. The
Court of Appeals held that the compact of 1834 settled the matter
and gave to New York jurisdiction over such matters to low water
mark on the Jersey side, Judge Andrews saying:
* *
*
"The purpose of vesting exclusive jurisdiction over these waters,
in the state of New York, was to promote the interests of com-
merce and navigation, which would, as supposed, be best sub-
served by giving to this state the exclusive control and regulation
of the waters of the bay and harbor of New York.
"The 8th section of the act of 1886 was manifestly enacted for
the protection of the harbor of New York in the interest of com-
merce and navigation. The citizens of New York City may pos-
sibly have a greater stake in the matter than citizens in other
localities, but the destruction or serious impairment of the harbor
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REPORT OF PORT AND HARBOR COMMISSION
of New York would directly affect the prosperity of the state.
It would impair its revenues, imperil its system of river, canal and
railroad transportation, and it is not too much to say that every
industrial interest, agricultural or mechanical, would feel its
blighting influence." (June, 1891. Ferguson v. Ross, 126 N. Y.
459, at p. 463 and p. 465.)
Our Commission has concluded — tentatively — that the struc-
ture of a Port Authority for the Port of New York should be
built upon the firm foundation of the New York-New Jersey treaty
of 1834. It has concluded, further, that in such an amendment of
the treaty account should be taken of what is now known as the
"Metropolitan District" and that commercially, as well as his-
torically, the district is in fact, if not in law, one district. The
difficulties that arise in the erection of such an authority at once
suggest themselves: To what extent can power be vested in such
an authority? To what extent should such power be vested?
What power shall such a port authority possess over municipali-
ties and communities embraced within the territory? How shall
it deal with property, title to which is now vested in such locali-
ties? What shall become of the bonded indebtednesses of these
various communities and of their constitutional debt limitations,
especially in the case of New York City? On the one side are all
the municipalities and townships now embraced in Greater New
York, organized into one large single political unit; on the other
are various small units still unorganized. How, if at all, shall
these units be represented and how shall their authority be bal-
anced? These questions are not entirely legal questions. They
do, however, present legal phases. They are in the main political
questions. They must take account of the habits of thinking and
feeling of all of these communities, as well as of the legal prin-
ciples involved.
Interstate Commerce and Navigation
"Commerce
*
>
The Federal Power
* * " said Chief Justice Marshall in Gib-
bons v. Ogden, 9 Wheat. 189, "is intercourse." The power to
regulate commerce extends to the regulation of navigation.
In Gilman v. Philadelphia, 3 Wall. 713, Mr. Justice Swayne,
speaking for the Court, said: "Commerce includes navigation.
REPORT OF PORT AND HARBOR COMMISSION
83
The power to regulate commerce comprehends the control for that
purpose, and to the extent necessary, of all the navigable waters
of the United States which are accessible from a state other than
those in which they lie. For this purpose they are the public
property of the nation, and subject to all the requisite legislation
by Congress. This necessarily includes the power to keep them
open and free from any obstruction to their navigation, interposed
by the states or otherwise; to remove such obstructions when they
exist; and to provide, by such sanctions as they may deem proper,
against the occurrence of the evil and the punishment of offenders.
"It is for Congress to determine when its full power shall be
brought into activity, and as to the regulations and sanctions
which shall be provided."
Congress has vested the Secretary of War with power to deter-
mine when bridges constitute obstructions to navigation. The
Secretary of War may go so far that if at any time he find a
bridge constructed over any of the navigable waters of the United
States to be an unreasonable obstruction to the free navigation of
such waters either on account of insufficient height, width of span,
or otherwise, he may direct the removal or alteration of the bridge
so as to render navigation through or under it free, easy, and
unobstructed. This same power may be applied to other struc-
tures on, over or under navigable waters. The United States
Supreme Court has repeatedly held that this is not an unconsti-
tutional delegation of legislative or judicial power to the Secretary.
Only recently has it been held by the United States Supreme
Court, Judge Pitney writing the opinion, that even though a
bridge span be constructed at great expense pursuant to a fran-
chise granted by Congress, neverthless the Secretary of War may
decide that the bridge was of insufficient horizontal clearance of
the channel span and order the alteration of the bridge (as
occurred in the case of the Ohio Falls bridge, a bridge built across
the Ohio River, at Louisville, Ky., under the authority of an
Act of Congress approved in 1865). Judge Pitney said:
It is true that Congress must have contemplated that a large
investment of private capital would be necessary, and that the
bridge when once constructed could not be abandoned or materially
changed without a total or partial loss of value. [It was claimed
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REPORT OF PORT AND HARBOR COMMISSION
"
that it would cost over $400,000 to comply with the order of the
Secretary of War.] This is a very grave consideration, and we
have not at all overlooked it; but we cannot deem it controlling
of the question presented." Louisville Bridge Co. v. United
States, 242 U. S. 409, 61 L. ed. 395, 37 Sup. Ct. Rep. 158.
Accordingly, the court held that the authority of Congress to
compel changes was precisely the same as if the bridge had been
constructed under state legislation without license from Congress,
as in Union Bridge Co. v. United States, 204 U. S. 364, 388, 400,
51 L. ed. 523, 534, 539, 17 Sup. Ct. Rep. 367; Monongahela
Bridge Co. v. United States, 216 U. S. 177, 193, 54 L. ed. 435,
442, 30 Sup. Ct. Rep. 356; or had been constructed under Con-
gressional consent or authorization, coupled with an express reser-
vation of the right of revocation or amendment, as in Newport &
C. Bridge Co. v. United States, 105 U. S. 470, 481, 26 L. ed.
1143, 1147; Hannibal Bridge Co. v. United States, 221 U. S.
194, 207, 55 L. ed. 699, 704, 31 Sup. Ct. Rep. 603.
The paramount power of Congress is illustrated by the decision
in Stockton v. Baltimore & N. Y. R. Co., 32 Fed. Rep. 9. In this
case the Staten Island Railroad Company was organized under
the laws of the state of New York to operate a railroad in Staten
Island. It procured from Congress the supplementary power to
build a bridge across the Arthur Kill, between Staten Island and
New Jersey, and proceeded to lay the foundation of the bridge
upon the shore and land under waters of the Kill within the state
of New Jersey. By the Act of April 6, 1886, New Jersey had
prohibited any person or corporation from erecting any bridge,
etc., over or in any part of the navigable waters` where the tide
ebbs and flows, and separating that state from other states, without
permission from the legislature of that state. The Attorney Gen-
eral of New Jersey sought to restrain the railroad company from
building its bridge across the Kill. Judge Bradley held that the
statute of New Jersey was unconstitutional in that it was in con-
flict with the paramount power of Congress to deal with com-
merce and navigation. Judge Bradley afterwards, as is well
known, became a judge of the United States Supreme Court.
This opinion of his has been frequently cited with approval,
especially in the United States Supreme Court. See Scranton v.
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85
Wheeler, 179 U. S. 141, at p. 159 and p. 186; Illinois Central R.
Co. v. People of the State of Illinois, 146 U. S. 387; Luxton v.
North River Bridge Co., 153 U. S. 525.
Judge Bradley said concerning the paramount powers of Con-
gress: "It matters little whether the United States had or has
not the theoretical ownership and dominion in the waters, or the
land under them; it has, what is more, the regulation and control
of them for the purposes of commerce. So wide and extensive is
the operation of this power that no state can place any obstruction
in or upon any navigable waters against the will of Congress,
and Congress may summarily remove such obstructions at its
pleasure. And all this power is derived from the power to ‘regu-
late commerce.' Is this power stayed when it comes to the ques-
tion of erecting a bridge for the purposes of commerce across a
navigable stream? We think not. We think that the power to
regulate commerce between the states extends, not only to the
control of the navigable waters of the country, and the lands
under them, for the purposes of navigation, but for the purpose
of erecting piers, bridges, and all other instrumentalities of com-
merce which, in the judgment of Congress, may be necessary or
expedient." (pp. 20, 21.)
Further, as a part of the decision, Judge Bradley held that the
power which Congress thus possesses may be delegated to a New
York railroad corporation. Thus the land under water of New
Jersey which, as it happened in the Stockton case, was leased for
oyster culture, from which the State of New Jersey derived a
revenue, was taken for the construction of the bridge without
compensation to the state or to the private owners.
The same question came up before the Circuit Court for the
Southern District of New York before the late Judge Wallace
(Decker v. Baltimore & N. Y. R. Co., 30 Fed. Rep. 723). Judge
Wallace held as did Judge Bradley, in the course of his opinion
saying:
"Whether the waters are wholly within the boundaries of a
state, or, as here, lie between two states, is not material. They
are navigable waters of the United States, if they form by them-
selves, or by uniting with others, a continuous highway for com-
merce with other states or countries. The Daniel Ball, 10 Wall.
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COMMISSION
REPORT OF PORT AND HARBOR •
557; Escanaba Co. v. Chicago, 107 U. S. 682, 2 Sup. Ct. Rep.
185.
"The power of control over such waters necessarily includes
the power of deciding what structures are impediments to com-
merce; and, by an unbroken line of decisions, it is settled that
the paramount authority regulating bridges that affect the navi-
gation of the navigable waters of the United States is in Congress.
"So long as this authority lies dormant, the states may author-
ize the erection of bridges over navigable waters within their
limits, which may to some extent obstruct navigation, or, by con-
current action, may bridge the waters lying between them; but,
so soon as Congress intervenes and exercises its power of regula-
tion, what has been done by state authority must give way to the
paramount authority of Congress. The power of the state ends
where that of the nation begins. * * *
"The lands under the water on the New Jersey side of Arthur
Kill belong to the state of New Jersey, or to those who have
derived title from the state. The shores of navigable waters, and
the soil under them, were not granted by the constitution to the
United States, but were reserved to the states respectively.
Pollard v. Hagan, 3 How. 212. The right of eminent domain
over such lands, for all municipal purposes, resides in the state
within the boundaries of which they lie, and within the legitimate
limitations of this right the power of the state to appropriate the
shores of navigable waters, and the lands under them, is absolute.
Ormerod v. New York, W. S. & B. R. Co., 21 Blatchf. 106, 13
Fed. Rep. 370.”
In People v. Rensselaer & S. R. Co., 15 Wend. 113, Chief
Justice Savage, after asserting that the power to erect bridges
over such waters existed in the state legislature before the adop-
tion of the federal constitution, says:
"It is not pretended that such power has been delegated to the
general government as is conveyed under the power to regulate
commerce and navigation. It remains, then, in the state legisla
ture, or it exists nowhere. It does exist because it has not been
surrendered any further than such surrender may be qualifiedly
implied; that is, the power to erect bridges over navigable streams
must be considered so far surrendered as may be necessary for a
free navigation upon those streams."
REPORT OF PORT AND HARBOR COMMISSION
87
Judge Wallace in the Decker case says further:
"The argument that the rights of the state of New Jersey are
ignored or invaded by permitting such a bridge to be built with-
out her consent is purely a sentimental one. She has no control
of the water-way for the purposes of navigation which is not
subordinate to the will of Congress. She can make no use of it
against the will of Congress. The act of Congress does not
attempt to appropriate any of the property of her citizens, or to
interfere with her power of eminent domain.
"If the constitutional power of Congress over the navigable
waters of the United States is confined to a mere negation of state
authority over them, if Congress can only ratify and prohibit
what the state proposes, if it has no faculty of independent action,
and no vigor to originate, then, instead of being paramount, the
power is practically subordinate to the power of the state. Yet
it has never been doubted that, within the scope of its powers, the
government of the United States is supreme, or that its authority,
when asserted, is, to the extent asserted, of necessity exclusive.”
(pp. 724, 725, 727, 728.)
More recently, in the state of New York (People v. Hudson
River Connecting Railroad Corporation, 104 Misc. 19), the same
federal authorities have been applied by Mr. Justice Chester in
the Supreme Court of Albany County (June, 1918) in a suit
brought by the state to restrain the Hudson River Connecting
Railroad Corporation from constructing a bridge across the Hud-
son River between a point near Castleton in Columbia County and
a point near Selkirk in Albany County. This is to be the "federal
cut-off." By an Act of Congress approved by the President on
March 18, 1914, the railroad was granted power "to construct,
maintain and operate a bridge, together with the necessary
approaches thereto, across the Hudson River, at a point suitable
to the interests of navigation, between Castleton and Schodack
Landing
"and by subsequent Act of Congress (August
9, 1916) the time for the commencement of the construction of
the bridge was extended to March 30, 1918, as to commencement,
and to March 30, 1920, as to the completion. Under various
Acts of Congress vesting the Secretary of War with power, plans
for the bridge were submitted to and approved by him, and on
May 2, 1917, he made and filed his certificate, approving the
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REPORT OF PORT AND HARBOR COMMISSION
"6
revised plan and permitting the building of the bridge under
regulations and conditions specified in the certificate. By Chapter
166 of the Laws of New York of 1918 (approved by the Governor
on April 9th of that year), the proposed bridge was forbidden
and the Attorney-General was authorized to bring proceedings to
enjoin its construction and also to forfeit the charter of the
defendant. Judge Chester holds that Congress, under the consti-
tutional power to regulate commerce, has the paramount right
to regulate such commerce over highways, railroads and bridges
as well as upon navigable waters," and that "the IIudson River
in part forms the boundary line between two states, and with the
enlarged Erie Canal forms a navigable waterway for commerce to
Canada and to several western states," and the bridge in ques-
tion is "a connecting link from the east to the west which will
carry commerce from and to foreign countries and between the
states.' Although the sentiment behind the passage of the law
in the state of New York was unusually strong, Judge Chester
says "there is but one answer which can be given to this question,
and this answer should not be given by yielding to public senti-
ment or to the desires of influential public bodies who have
spoken on the subject, but must be responsive to the controlling
power of the supreme law of the land.
<<
It has been settled by a long line of authorities from the time
of the decision of the Supreme Court of the United States in the
early and leading case of Gibbons v. Ogden (9 Wheaton 1) to the
present day, that under the clause of the Federal Constitution
which vests in Congress power to regulate commerce with foreign
nations and among the several states' (U. S. Const. Art. 1, Sec.
8, Clause 3), Congress has paramount authority under such
clause over all navigable waters of the United States.”
In Erie Railroad Company v. People of the State of New York,
233 U. S. 671, at p. 681, it is said: "The relative supremacy
of the state and national power over interstate commerce need not
be commented upon. Where there is conflict, the state legislation
must give way. Indeed, when Congress acts in such a way as to
manifest its purpose to exercise its constitutional authority,
regulating power of the state ceases to exist.”
the
In the Hudson River Connecting Railroad Corporation case, as
REPORT OF PORT AND HARBOR COMMISSION
89
in the Stockton case, the state owned the land under water on
which it was proposed to erect the ends of the defendant's bridge.
Judge Chester follows Judge Bradley's decision.
The Powers of the State
Notwithstanding these declarations, there is a broad field in
which the states may still exercise power. In the first place, as
Chief Justice Marshall in Gibbons v. Ogden said:
"The com-
pletely internal commerce of a state . . . may be considered as
reserved for the state itself." This language, quoted by Mr.
Justice Hughes, speaking for the United States Supreme Court
in the Minnesota Rate Case (230 U..S. 352 (1912) at p. 398),
is the basis for holding that in the absence of federal action effect
may not be denied to the laws of the state enacted in the field
which it is entitled to occupy till its authority is limited through
the exertion by Congress of its paramount constitutional power.
(p. 400.) "But within these limitations," says Mr. Justice
Hughes, "there necessarily remains to the states until Congress
acts, a wide range for the permissible exercise of power appro-
priate to their territorial jurisdiction, although interstate com-
merce may be affected. It extends to those matters of a local
nature as to which it is impossible to derive from the constitu-
tional grant an intention that they should go uncontrolled pend-
ing federal intervention. Thus, there are certain subjects having
the most obvious and direct relation to interstate commerce, which
nevertheless, with the acquiescence of Congress, have been con-
trolled by state legislation from the foundation of the government
because of the necessity that they should not remain unregulated,
and that their regulation should be adapted to varying local
exigencies; hence, the absence of regulation by Congress in such
matters has not imported that there should be no restriction, but
rather that the states should continue to supply the needed rules
until Congress should decide to supersede them. Further, it is
competent for a state to govern its internal commerce, to provide
local improvements, to create and regulate local facilities, to
adopt protective measures of a reasonable character in the interest
of the health, safety, morals, and welfare of its people, although
interstate commerce may incidentally or indirectly be involved.
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REPORT OF PORT AND HARBOR COMMISSION
Our system of government is a practical adjustment by which
the national authority as conferred by the Constitution is main-
tained in its full scope without unnecessary loss of local efficiency.
Where the subject is peculiarly one of local concern, and from
its nature belongs to the class with which the state appropriately
deals in making reasonable provisions for local needs, it cannot
be regarded as left to the unrestrained will of individuals because
Congress has not acted, although it may have such a relation to
interstate commerce as to be within the reach of the federal
power."
The United States Supreme Court held in the Minnesota Rate
Case, 230 U. S. 352, at p. 403, that "A state is entitled to protect
its coasts, to improve its harbors, 'bays, and streams, and to con-
struct dams and bridges across navigable rivers within its limits,
unless there is conflict with some act of Congress. Plainly, in
the case of dams and bridges, interference with the accustomed
right of navigation may result. But this exercise of the important
power to provide local improvements has not been regarded as
constituting such a direct burden upon intercourse or interchange
of traffic as to be repugnant to the federal authority in its dormant
state."
In the most recent utterance of the United States Supreme
Court on the matter of the power of Congress over interstate com-
merce (Hammer v. Dagenhart, — U. S. 660, Advance Sheets No.
15, July 1, 1918, Child Labor Law), Mr. Justice Day, writing the
prevailing opinion of the Court, repeats Chief Justice Marshall's
reference in Gibbons v. Ogden, 9 Wheat. 1, 6 L. ed. 23, to "that
immense mass of legislation which embraces everything within the
territory of a state, not surrendered to the general government,-
all of which can be most advantageously exercised by the states
themselves. Inpection laws, quarantine laws, health laws of every
description, as well as laws for regulating the internal commerce
of a state, and those which respect turnpike roads, ferries, etc.,
are component parts of this mass." Mr. Justice Day quotes also
from the same great judge's decision in the Dartmouth College
case (4 Wheat. 518, 629): "That the framers of the Constitution
did not intend to restrain the states in the regulation of their civil
institutions, adopted for internal government, and that the instru-
REPORT OF PORT AND HARBOR COMMISSION
91
ment they have given us is not to be so construed, may be ad-
mitted." Judge Day reminds us that "In interpreting the Con-
stitution it must never be forgotten that the nation is made up
of states, to which are intrusted the powers of local government.
And to them and to the people the powers not expressly delegated
to the national government are reserved."
In dealing with matters affecting navigation and interstate com-
merce, the United States Supreme Court has had opportunity
many times to mark the line of delimitation between state and
federal power. Thus, in the prevailing opinion in the recent case
of Southern Pacific Co. v. Jensen, 244 U. S. 205, it is said:
"Where the subject is national in its character, and admits and.
requires uniformity of regulation, affecting alike all the states,
such as transportation between the states, including the importa-
tion of goods from one state to another, Congress can alone act
upon it and provide the needed regulations. The absence of any
law of Congress on the subject is equivalent to its declaration
that commerce in that matter shall be free.'” But whether or
not the subject "is national in its character, and admits and
requires uniformity of regulation, affecting alike all the states,"
of course depends upon the particular statute in question. Thus,
in the Passenger Cases, 7 How. 283, the United States Supreme
Court held unconstitutional a New York statute which authorized
the Health Commissioner of the state to demand, and, if not paid,
to sue for and to recover from the master arriving in the Port of
New York from a foreign port $1.50 for each cabin passenger and
$1.00 for each steerage passenger, mate, sailor or mariner, etc.,
which moneys were to be appropriated to the support of the marine
hospital on Staten Island. Following this decision of the United
States Supreme Court, the State of New York modified this statute
so as to require the master or owner, etc., to make a report, and
upon this report the Mayor was required to endorse a demand
upon the master or owner that he give a bond for every passenger
landed in the city in the penal sum of $300, conditioned to indem-
nify the Commissioners of Immigration and every county, city
and town in the state against any expense for the relief or support
of the person named in the bond for four years thereafter; but the
owner or consignee might compute for such bond and be relieved
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from giving it by paying, within 24 hours after landing of the
passengers, the sum of $1.50 for each passenger. It was held,
however, in Henderson v. Mayor of New York, 92 U. S. 259
(1876) that while the state could require the master or owner of
every vessel landing passengers from a foreign port to make a
report in writing, under oath, within 24 hours after arriving, to
the mayor of the city of the name, date of birth, last legal settle-
ment, age and occupation of every passenger brought from any
country out of the United States, etc., nevertheless, the imposition
of the dollar and a half for each passenger was unconstitutional
and void, as being one of the subjects which " are in their nature
national, or admit of one uniform system or plan of regulation."
"The laws which govern the right to land passengers in the United
States from other countries ought to be the same in New York,
Boston, New Orleans and San Francisco."
Nevertheless, the United States Supreme Court has repeatedly
sustained those state laws which provide for improvements of
rivers, bays and harbors of states. The act of February 16, 1867,
of the State of Alabama was an act to provide for the improvement
of the river, bay and harbor of Mobile. A commission was created
for this purpose, with power to issue bonds up to one million
dollars and to apply the proceeds to the cleaning out, deepening
and widening of the river, harbor and bay of Mobile, or the con-
struction of an artificial harbor in addition to such improvement.
Pursuant to this power, it arranged to cut a channel in the harbor
of Mobile. Mr. Justice Field, writing for the Court in County of
Mobile v. Kimball, 102 U. S. 691, said: "Of the class of subjects.
local in their nature, or intended as mere aids to commerce, which
are best provided for by special regulations, may be mentioned
harbor pilotage, buoys and beacons to guide mariners to the proper
channel in which to direct their vessels.
"The rules to govern harbor pilotage must depend in a great
degree upon the peculiarities of the ports where they are to be
enforced." It is quite obvious that the improvement of harbor
facilities and the making of local regulations facilitating commerce
and navigation do not fall within that group of cases over which
Congress exercises exclusive control. "The improvement of har-
bors, bays and navigable rivers within the states," says Mr. Justice
REPORT OF PORT AND HARBOR COMMISSION
93
""
Field, "falls within this last category of cases. The control of
Congress over them is to insure freedom in their navigation, so
far as that is essential to the exercise of its commercial power.
Such freedom is not encroached upon by the removal of obstruc-
tions to their navigability or by other legitimate improvement.
The states have as full control over their purely internal com-
merce as Congress has over commerce among the several states and
with foreign nations; and to promote the growth of that internal
commerce and insure its safety they have an undoubted right to
remove obstructions from their harbors and rivers, deepen their
channels and improve them generally, if they do not impair their
free navigation as permitted under the laws of the United States,
or defeat any system for the improvement of their navigation pro-
vided by the general government. Legislation of the states for
the purposes and within the limits mentioned do not infringe upon
the commercial power of Congress
Mr. Justice Field gives
us the key to an understanding of "some of the divergence of
views upon this question among former judges." He says they
“have arisen from not always bearing in mind the distinction
Vetween commerce as strictly defined, and its local aids or instru-
ments, or measures taken for its improvement. Commerce with
foreign countries and among the states, strictly considered, con-
sists in intercourse and traffic, including in these terms naviga-
tion and the transportation and transit of persons and property,
as well as the purchase, sale and exchange of commodities. For
the regulation of commerce as thus defined, there can be only one
system of rules applicable alike to the whole country; and the
authority which can act for the whole country can alone adopt
such a system. Action upon it by separate states is not, therefore,
permissible. Language affirming the exclusiveness of the grant
of power over commerce as thus defined may not be inaccurate,
when it would be so if applied to legislation upon subjects which
are merely auxiliary to commerce."
Thus the same judge, writing the opinion in Hamilton v. Vicks-
burg, Shreveport and Pacific R. R. Co., 119 U. S. 280, held that
the grant of authority to the Vicksburg, Shreveport and Texas
Railroad Company by the Louisiana legislature to construct a
railroad in the State of Louisiana and to build all the necessary
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REPORT OF PORT AND HARBOR COMMISSION
bridges for the crossing of navigable streams was valid. "Until
Congress intervenes in such cases," says he, "and exercises its
authority, the power of the state is plenary. When the state
provides for the form and character of the structure, its direc-
tions will control, except as against the action of Congress,
whether the bridge be with or without draws, and irrespective of
its effect upon navigation." The same principle has been applied
by the United States Supreme Court to the building of dams
across interior streams. See Manigault v. Springs, 199 U. S. 473.
The right of states or municipalities to build improved terminal
facilities and to charge for their use has been repeatedly estab-
lished by the United States Supreme Court. In Packet Co. v.
St. Louis, 100 U. S. 423, it is held that a municipal corporation,
owning improved wharves which it maintained at its own cost,
although engaged in commerce upon the navigable waters of the
United States, is not prohibited by the Constitution of the United
States from charging and collecting from parties using its wharves
and facilities such reasonable fees as will fairly remunerate it for
the use of its property. Of course, this is subject to the limitation
that there must not be any discrimination. Thus, in Guy v. Balti-
more, 100 U. S. 434, an ordinance of Baltimore, while requiring
vessels laden with the products of other states to pay for the use
of public wharves of that city, relieved all vessels containing the
products of Maryland from the payınent of any fee. The United
States Supreme Court held that the City of Baltimore could, if
it chose, permit the public wharves which it owned to be used
without charge. Under the authority of the state, it might also
exact wharfage fees equally "from all who use its improved
wharves, provided such charges do not exceed what is fair remun-
eration for the use of its property. But it cannot employ the
property it thus holds for public use so as to hinder, obstruct, or
burden interstate commerce im the interest of commerce wholly
internal to that state." Exactions of this sort "in the name of
wharfage, must be regarded as taxation upon interstate com-
merce."
Again, state laws regulating pilotage, although regula-
tions of commerce, fall within that class of powers which may be
exercised by the states until Congress has seen fit to act upon the
subject. Olsen v. Smith, 195 U. S. 332. See also Cooley v. Board
REPORT OF PORT AND HARBOR COMMISSION
95
of Wardens of Port of Philadelphia, 12 How. 299. In the absence
of legislation by Congress, a state may authorize a navigable
stream within its limits to be obstructed by a bridge or highway.
Cardwell v. American River Bridge Co., 113 U. S. 205. The
cases cited in the opinion, says Mr. Justice Field, “recognize the
full power of the states to regulate within their limits matters of
internal police, which embraces, among other things, the construc-
tion, repair and maintenance of roads and bridges, and the estab-
lishment of ferries." The reason for distinguishing between local
regulations and national regulations is given by Mr. Justice Field
at page 208. "The states," he says, "are more likely to appre-
ciate the importance of these means of internal communication
and to provide for their proper management, than a government
at a distance."
In the recent case of Arkansas v. Tennessee, decided March 4,
1918, 246 U. S. 158, 62 L. ed., Judge Pitney, writing for the
Court, says:
How the land that emerges on either side of an
interstate boundary stream shall be disposed of as between public
and private ownership is a matter to be determined according
to the law of each state, under the familiar doctrine that it is for
the states to establish for themselves such rules of property as
they deem expedient with respect to the navigable waters within
their borders and the riparian lands adjacent to them." Thus,
in the case before him, he holds that Arkansas may, by its law,
limit riparian ownership by the ordinary high water mark, and
Tennessee, while extending riparian ownership upon navigable
streams to ordinary low water mark and reserving as public the
lands constituting the bed below that mark, may nevertheless, in
the case of an avulsion, followed by a drying up of the old channel
of the river, recognize the right of former riparian owners to be re-
stored to that which they had lost by gradual erosion in times pre-
ceding the avulsion.
(In the final report of the National Waterways Commission,
1912, (62d Congress, 2nd Session, Sen. Doc. 469) there is a very
carefully prepared brief on the law of waters by G. W. Mooney,
wherein it will be found that the common law rule of riparian
rights is modified and in many cases to a greater or less extent
superseded by local common law, constitutional and statutory
provisions.)
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The railroad bridges across the Passaic River at Newark, New
Jersey, and the plank road bridges across the same river, con-
structed under the authority of the State of New Jersey, were held
to be within the powers of the state and not in violation of the
federal constitution, notwithstanding the fact that Congress had
made Newark a port of entry. (See Passaic Bridge Cases, 3 Wall.
782, 793, September, 1857), Mr. Justice Grier saying: "Con-
gress, by conferring the privilege of a port of entry upon a town
or city, does not come in conflict with the police power of a State
exercised in bridging her own rivers below such port. If the
power to make a town a port of entry includes the right to regulate
the means by which its commerce is carried on, why does it not
extend to its turnpikes, railroads, and canals,- to land as well
as water?"
Thus, too, in dealing with the Chicago River (Escanaba Co. v.
Chicago, 107 U. S. 678), although the United States Supreme
Court held that the Chicago River and its branches are navigable
waters of the United States over which Congress may exercise con-
trol to the extent necessary to protect and improve their free navi-
gation, until that body acts the state of Illinois has plenary powers
over bridges across them within the limits of the state, and may
vest in Chicago jurisdiction over the construction, repair and use
of these bridges within the city, Mr. Justice Field saying: (683)
"But the states have full power to regulate within their limits
matters of internal police, including in that general designation
whatever will promote the peace, comfort, convenience and pros-
perity of their people. This power embraces the construction of
roads, canals and bridges, and the establishment of ferries, and it
can generally be exercised more wisely by the states than by a
distant authority. They are the first to see the importance of such
means of internal communication, and are more deeply concerned
than others in their wise management... When its power [the
state's] is exercised so as to unnecessarily obstruct the navigation
of the river or its branches, Congress may interfere and remove
the obstruction. If the power of the state and that of the federal
government come in conflict, the latter must control and the former
yield... But until Congress acts on the subject, the power of
the state over bridges across its navigable streams is plenary."
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4
HARBOR COMMISSION
(p. 687) "The doctrine declared in these several decisions
[after reviewing many cases] is in accordance with the more
general doctrine now firmly established, that the commercial
power of Congress is exclusive of state authority only when the
subjects upon which it is exercised are national in their character
and admit and require uniformity of regulation affecting alike all
the states. Upon such subjects only that authority can act which
can speak for the whole country. Its non-action is, therefore, a
declaration that they shall remain free from all regulation."
(Citing Welton v. Missouri, 91 U. S. 275; Henderson v. Mayor
of New York, 92 Id. 259; Mobile Co. v. Kimball, 102 Id. 691.)
"The uniformity of commercial regulations, which the grant to
Congress was designed to secure against conflicting state provi-
sions," says Mr. Justice Field, speaking for the Court in the
County of Mobile v. Kimball, 102 U. S. 691, 698, "was necessarily
intended only for cases where such uniformity is practicable.
Where, from its nature or the sphere of its operation, the subject
is local and limited, special regulations adapted to the immediate
locality could only have been contemplated. State action upon
such subjects can constitute no interference with the commercial
power of Congress, for when that acts the state authority is super-
seded. Inaction of Congress upon these subjects of a local nature
or operation, unlike its inaction upon matters affecting all the
states and requiring uniformity of regulation, is not to be taken
as a declaration that nothing shall be done with respect to them,
but is rather to be deemed a declaration that for the time being,
and until it sees fit to act, they may be regulated by state
authority.'
""
Mr. Justice Swayne, in Ex parte McNiel, 13 Wall. 236, 240,
passing upon the New York statute providing for pilotage of the
channel of the East River (Hell Gate), gave a very clear defini-
tion of the division of power in this field of legislation:
In the complex system of polity which prevails in this country
the powers of government may be divided into four classes. Those
which belong exclusively to the States. Those which belong exclu-
sively to the National government. Those which may be exercised
concurrently and independently by both. Those which may be
exercised by the States, but only until Congress shall see fit to act
4
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REPORT OF Port and HARBOR COMMISSION
upon the subject. The authority of the State then retires and lies.
in abeyance until the occasion for its exercise shall recur. The
commercial power lodged by the Constitution in Congress is, in
part, of this character. Some of the rules prescribed in the exer-
cise of that power must, from the nature of things, be uniform
throughout the country. To that extent the power itself must,
necessarily, be exclusive; as much so as if it had been so declared
to be, by the organic law, in express terms. Others may well vary
with the varying circumstances of different localities. In the
latter contingency the States may prescribe the rules to be observed
until Congress shall supersede them; the Constitution and laws
of the United States in such case, as in all others to which they
apply, being the supreme law of the land."
In Huse v. Glover, 119 U. S. 543 (1886), the State of Illinois
adopted measures for improving the navigation of the Illinois
River, including the construction of a lock and dam at Henry and
at Copperas Creek on the river. She created a Board of Canal
Commissioners and invested it with authority to supervise the con-
struction of the locks and dams, and to control and manage them
after their construction, and to prescribe reasonable rates of tolls
for vessels. The works were constructed at an expense of several
hundred thousand dollars, principally borne by the state. The
United States Supreme Court refused to sustain the contention
that the charging of tolls was in violation of the constitutional and
federal statutes, distinguishing Gibbons v. Ogden (where, as we
have seen, the U. S. Supreme Court held unconstitutional the
action of the state of New York conferring upon Livingston
and Fulton the exclusive right to navigate on waters within
its jurisdiction vessels operated by steam) and said: "The exac-
tion of tolls for passage through the locks is as compensation for
the use of artificial facilities constructed, not as an impost upon
the navigation of the stream. The provision of the clause that the
navigable streams should be highways without any tax, impost or
duty, has reference to their navigation in their natural state. It
did not contemplate that such navigation might not be improved
by artificial means, by the removal of obstructions, or by the mak-
ing of dams for deepening the waters, or by turning into the rivers
waters from other streams to increase their depth. For outlays
caused by such works the state may exact reasonable tolls. They
REPORT OF PORT AND HARBOR COMMISSION
99
are like charges for the use of wharves and docks constructed to
facilitate the landing of persons and freight, and the taking them
on board, or for the repair of vessels." In other words, the State
of New York and the State of New Jersey, each within its own
territory, may build and construct improved warehouses, docks,
piers, wharves and every known agency for the improvement of
commerce, and so long as the charges therefore are reasonable,
may make charges for the use thereof. As Mr. Justice Field said
in Huse v. Glover, at p. 548: "The state is interested in the
domestic as well as in the interstate and foreign commerce con-
ducted on the Illinois River [Port of New York], and to increase
its facilities and thus augment its growth, it has full power. It
is only when, in the judgment of Congress, its action is deemed to
encroach upon the navigation of the river as a means of interstate
and foreign commerce, that that body may interfere and control
or supersede it." To improve a port, of course, is not to impede
its navigation. "If, in the opinion of the state, greater benefit
would result to her commerce by the improvements made than by
leaving the river in its natural state — and on that point the state
must necessarily determine for itself—it may authorize them,
although increased inconvenience and expense may thereby result
to the business of individuals. The private inconvenience must
yield to the public good. The opening of a new highway, or the
improvement of an old one, the building of a railroad and many
other works in which the public is interested, may materially
diminish business in certain quarters and increase it in others;
yet, for the loss resulting, the sufferers have no legal ground of
complaint."
See Transportation Co. v. Parkersburg, 107 U. S. 691, 696,
698, distinguishing between a charge of wharfage according to the
tonnage of a vessel and a duty of tonnage prohibited by the Con-
stitution, the Court saying: "They are not the same thing; a
duty of tonnage is a charge for the privilege of entering or trading
or lying in a port or harbor; wharfage is a charge for the use of a
wharf."
In Packet Co. v. Keokuk, 95 U. S. 80 (1877), the Legislature of
Ohio granted a charter to the City of Keokuk, under which it was
given power to establish and regulate wharves and fix rates of
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Report of Port and HARBOR COMMISSION
wharfage for the use of wharves. The constitutionality of this act
was sustained, Mr. Justice Strong saying: ".
a charge for
services rendered or for conveniences provided is in no sense a tax
or a duty. It is not a hindrance or impediment to free navigation.
The prohibition to the State against the imposition of a duty of
tonnage was designed to guard against local hindrances to trade
and carriage by vessels, not to relieve them from liability to claims
for assistance rendered and facilities furnished for trade and com-
merce. It is a tax or a duty that is prohibited; something imposed
by virtue of sovereignty, not claimed in right of proprietorship.
Wharfage is of the latter character. Providing a wharf to which
vessels may make fast, or at which they may conveniently load or
unload, is rendering them a service. The character of the service
is the same whether the wharf is built and offered for use by a
State, a municipal corporation or a private individual; and when
compensation is demanded for the use of the wharf, the demand
is an assertion, not of sovereignty, but of a right of property."
In Sands v. Manistee River Improvement Co., 123 U. S. 288
(1887) under a Michigan statute a corporation was authorized to
improve the Manistee River, a stream wholly within that State.
The improvements consisted in the removal of obstacles to the
floating of logs and lumber down the stream, principally by cutting
new channels at different points and by confining the waters at
other points by embankments. It was held that the exaction of
tolls for the use of the improvement of the natural waterway was
not within the prohibition of the Constitution, Mr. Justice Field
saying: The internal commerce of a State that is, the com-
is as much
merce which is wholly confined within its limits
under its control as foreign or interstate commerce is under the
control of the General Government; and, to encourage the growth
of this commerce and render it safe, the States may provide for
the removal of obstructions from their rivers and harbors, and
deepen their channels, and improve them in other ways, if, as is
said in Mobile County v. Kimball, the free navigation of those
waters, as permitted under the Laws of the United States, is not
impaired, or any system for the improvement of their navigation
provided by the General Government is not defeated."
The principles which we have here been discussing have been
REPORT OF PORT AND HARBOR COMMISSION
101
extended to cover ferries operating between two States. In the
Port Richmond Ferry Case (234 U. S. 317), it appeared that the
Port Richmond & Bergen Point Ferry Company was incorporated
in 1848 by Chapter 306 of the Laws of the State of New York for
the purpose of maintaining a ferry across the Kill van Kull
from Port Richmond, Staten Island, to Bergen Point, Hudson
County, New Jersey. The United States Supreme Court held, Mr.
Justice Hughes speaking for the court, after a careful review of
all the authorities, that both New York and New Jersey had the
right to fix tolls for this ferry and the fact that rates were fixed
by New York did not preclude New Jersey from establishing rea-
sonable rates with respect to the ferry establishment maintained
on its side. The possibility of conflict between the two states is
clearly recognized by Mr. Justice Hughes in this opinion (pp.
332-3. "If the state," says he, "may exercise this power, it
necessarily follows that it may not, in its exercise, derogate from
the similar authority of another state. The state power can extend
only to the transactions within its own territory and the ferriage
from its own shore. It follows that the fact that rates were fixed
by New York did not preclude New Jersey from establishing rea-
sonable rates with respect to the ferry establishment maintained
on its side." But the important fact in the Port Richmond Ferry
Case is, as stated by Mr. Justice Hughes at page 320 of the opin-
ion, that “The ferry is not operated in connection with any rail-
road. Where the ferry is operated in connection with a railroad,
a different question is presented. This latter question has received
most careful study on the part of the New Jersey judges and
finally by the United States Supreme Court. It was involved in
the consideration of the validity of the ordinance of New Jersey
regulating the rates of ferriage for foot passengers on the Wee-
hawken Ferry connected with the West Shore Railroad. The New
Jersey Supreme Court (New York Central Case, 74 N. J. L. 367),
Mr. Justice Swayze writing the opinion, held that since the ferries
were used in connection with railroads, the ordinance was uncon-
stitutional. The Court of Errors and Appeals (76 N. J. L. 664)
held that the ordinance was valid in so far as it related to the
operation of the ferry between New York and New Jersey and
did not relate to the transportation of freight. The United States
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5
Supreme Court, however, in 227 U. S. 248, Chief Justice White
writing the opinion, said: (p. 263) "to dispose of the case we are
called upon only
to determine the single and simple
question whether there has been such action by Congress as to
destroy the presumption as to the existence in the state of vicarious
and revocable authority over the subject." This "vicarious and
revocable authority" Judge White finds to have been taken away
by Congress in the enactment of the Interstate Commerce Com-
mission Act (Act of February 4, 1887, Chapter 104, 24 Stat. at
L. 379), in which it is declared that " the term ' railroad,' as used
in this act, shall include all bridges and ferries used or operated
in connection with any railroad, and also all the road in use by
any corporation operating a railroad, whether owned or operated
under a contract, agreement or lease
""
It must be apparent from a study of these cases that to steer
safely through the legally established channels for such a course
as our Commission proposes to follow, we shall need to take careful
soundings as we go, lest we break upon the rocks or get caught
upon the shoals where navigation is not yet free. We must bear in
mind that the exercise of federal power under war authority iṣ a
different matter than the exercise of federal power under the inter-
state commerce clause of the Constitution. The places at which
the states still continue to exercise "vicarious and revocable
authority" are exceedingly numerous. They already cover, as we
see, pilotage regulations, construction of wharves, piers, bridges,
dams, tunnels, operation of ferries (not connected with interstate
railroads), quarantine and policing regulations. The political
philosophy underlying the distinction between the exercise of
state and federal power in these questions has nowhere been caught
or defined more effectively than it was in the address by ex-Justice
Charles E. Hughes before the New York State Bar Association in
January, 1916, made while he was still a justice of the United
States Supreme Court. Speaking to the subject "Our Dual Sys-
tem," he said: "Our recent reports abundantly show that ques-
tions of utmost nicety are constantly being presented in the appli-
cation of new statutes, and evidence the extreme difficulty of the
work of carrying out the will of Congress over the activities within
its control while at the same time avoiding encroachment upon
the State field
Report of Port and HARBOR COMMISSION
103
"But in the face of the difficulties already upon us, and destined
to increase in number and gravity, we remain convinced of the
necessity of autonomous local governments. An over-centralized
government would break down of its own weight. It is almost
impossible even now for Congress in well-nigh continuous session
to keep up with its duties, and we can readily imagine what the
future may have in store in legislative concerns. If there were
centered in Washington a single source of authority from which
proceeded all the governmental forces of the country — created
and subject to change at its will upon whose permission all
legislative and administrative action depended throughout the
length and breadth of the land, I think we should swiftly demand
and set up a different system. If we did not have states we should
speedily have to create them."
In the Minnesota Rate Case (230 U. S. 352) Mr. Justice
Hughes had to consider to what extent state public service or
public utility commissions might act in the fixing of intrastate
rates upon railroads engaged in interstate commerce. In his
opinion are many illustrations of the field in which the states
may act until Congress has acted. "In the intimacy of commer-
cial relations,” said he, "much that is done in the superintend-
ence of local matters may have an indirect bearing upon inter-
state commerce. The development of local resources and the
extension of local facilities may have a very important effect upon
communities less favored, and to an appreciable degree alter the
course of trade. The freedom of local trade may stimulate inter-
state commerce, while restrictive measures within the police power
of the state, enacted exclusively with respect to internal business,
as distinguished from interstate traffic, may in their reflex or
indirect influence diminish the latter and reduce the volume of
articles transported into or out of the state." (pp. 410, 411.)
Again: "The interblending of operations in the conduct of
interstate and local business by interstate carriers is strongly
pressed upon our attention. It is urged that the same right of
way, terminals, rails, bridges, and stations are provided for both
classes of traffic; that the proportion of each sort of business
varies from year to year, and, indeed, from day to day; that no
division of the plant, no apportionment of it between interstate
and local traffic, can be made today, which will hold tomorrow;
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REPORT OF PORT AND HARBOR COMMISSION
·
that terminals, facilities, and connections in one state aid the
carrier's entire business, and are an element of value with respect
to the whole property and the business in other states; that securi-
ties are issued against the entire line of the carrier and cannot be
divided by states; that tariffs should be made with a view to all
the traffic of the road, and should be fair as between through and
short-haul business; and that, in substance, no regulation of rates
can be just which does not take into consideration the whole field
of the carrier's operations, irrespective of state lines. The force
of these contentions is emphasized in these cases, and in others of
like nature, by the extreme difficulty and intricacy of the calcu-
lations which must be made in the effort to establish a segregation
of intrastate business for the purpose of determining the return
to which the carrier is properly entitled therefrom." (p. 432.)
1
Notwithstanding these considerations, the United States
Supreme Court sustained the power of the states to regulate intra-
state traffic on railroads doing an interstate business.
In the recent case of Wilmington Transportation Co. v. Railroad
Commission of California, 236 U. S. 151 (1914), it is held, ex-
Justice Hughes writing the opinion, that Congress may regulate
interstate transportation by ferry as well as other interstate com-
mercial intercourse, but until it does do so a state may prevent
an unreasonable charge for ferriage from a point of departure
within its borders. In this case the limitations of the power of the
Interstate Commerce Commission over ferries was developed, and
it was apparent that the subject presented was " of a local nature,
admitting of diversity of treatment according to local necessities,
and it could not be supposed that it was the intention to deny to
the states the exercise of their protective power, in the absence of
Federal action.
The rule which the plaintiff in error
invokes is not an arbitrary rule, with arbitrary exceptions, but it
is one that has its basis in a rational construction of the commerce
clause. As repeatedly stated, it denies authority to the state in all
cases where the subject is of such nature as to demand that, if
regulated at all, its regulation should be through a general or
national system, and that it should be free from restraint or direct
burdens save as it is constitutionally governed by Congress; and
on the other hand, as to those matters which are distinctively local
REPORT OF PORT AND HARBOR COMMISSION
105
in character, although embraced within the Federal authority, the
rule recognizes the propriety of the reasonable exercise of the
power of the states, in order to meet the needs of suitable local.
protection, until Congress intervenes." (pp. 154, 155.) In the
case under discussion, the transportation by ferry was between
San Pedro on the mainland and Avalon on Santa Catalina Island,
both places being within the County of Los Angeles in the State.
of California. The Court "assumed upon this record that the
state claims the right to exercise its authority only as to transpor-
tation between the mainland and the island, and solely with
respect to such shipments over this route as are local to the state,
both as to the beginning and the end of the transportation. There
is no passage through the territory of another state; the transpor-
tation, in its entire course, is subject to a single authority,
either that of Congress or that of the state, and the latter would:
yield to the exercise of the former." (p. 156.)
Thus, clearly as to ferries operated wholly within the State of
New York, in the absence of Congressional regulation the State
of New York can act, and similarly, as to ferries operated wholly
within the State of New Jersey, the State of New Jersey can act.
As we have seen, this applies also to bridges. It is important to
keep in mind, however, that in the matter of lighterage and car
floatage between the two states, the Interstate Commerce Commis--
sion has jurisdiction. In United States v. Baltimore & Ohio Rail-
road Co., 231 U. S. 274, at pages 288 and 289: “ · The mere fact
that the physical rails stop at Jersey City does not mean that the
railroad transportation there ends. It continues over to Brooklyn.
by means of car floats, upon which further rails are laid and on.
which empty and loaded freight cars stand and are transported, so
that the rails upon the car floats are brought into contact with the
rail ends at Jersey City, and the continuation thereof at Brooklyn,
and in this way the transportation by railroad is carried on with-
out interruption from the western points directly to Brooklyn.'
That this phase of transportation is one over which the Interstate:
Commerce Commission has jurisdiction appears clearly from the
briefs and decision in the New York Harbor Case, I. C. C. No.
8994. In the case of Sault Ste. Marie v. International Transit Co.,
234 U. S. 333 (1913), it was held that a ferry that ran between the
999
106
REPORT OF PORT AND HARBOR COMMISSION
City of Sault Ste. Marie, Michigan and Canada was subject to the
protection of Congress and that the State of Michigan could not
pass a law requiring a Canadian corporation operating ferryboats
to one of its own wharves at Sault Ste. Marie to obtain a licens.
In St. Clair County v. Interstate Sand & Car Transfer Co., 192
U. S. 454, it was held that the business of transporting railroad
cars was not a ferry business in the proper sense, and that an ordi-
nance passed by a county of Illinois requiring a ferry license for
the transporting of cars across the Mississippi between points in
Illinois and Missouri was invalid, the Court holding that the
requirements of the ordinance made it a direct burden on inter-
state commerce.
It is by virtue of powers still remaining in the States that the
Public Service Commission of New York and the Public Utility
Commission of New Jersey are acting with reference to the regu-
lation of public utilities within the two States respectively. It
is quite obvious that an agency of both States which can appear
before the Commissions of both States upon occasions when the
circumstances justify, and present such considerations as are com-
mon to the interests of both States, can bring about a harmony of
action tending ultimately to the benefit of the port as a whole. As
ex-Justice Hughes said in the address to which we have referred:
"It would seem to be clear that bodies of intelligent men dealing
as experts, for example, with the interstate and intrastate phases
of traffic situations, should be in practical accord, or that at least
such differences as may appear to exist should be put to the test
of mutual statement, analysis and consultation under plans more
definitely designed to prevent unnecessary divergencies.
I should think that many of our difficulties might be solved by
perfecting the machinery of administration with the direct pur-
pose of promoting harmony of action in dealing with those activi-
ties which are conducted in the world of affairs as parts of the
same enterprises. It should not be deemed impracticable to secure
the protective purposes of state and Nation without injury or
needless embarrassment to the honest undertakings upon which
both depend."
In the dissenting opinion of Mr. Justice Pitney in Southern
Pacific Co. v. Jensen, 244 U. S. 205, at page 244, and in the dis-
REPORT OF PORT AND HARBOR COMMISSION
107
senting opinion of Mr. Justice Brandeis in New York Central
Railroad Co. v. Winfield, 244 U. S. 147, at p. 156, will be found a
long series of cases in which the exercise of state power has been
sustained where Congress has acted only generally. The follow-
ing quotation from Gould on the Law of Waters, 3rd Edition,
Section 35, is a good summary of the legal situation :
"Under the Constitution of the United States a state has the
right, if its legislation does not conflict with the action of Con-
gress upon the same subject, to authorize bridges and dams across
the navigable waters within its limits; to license wharves, piers
and docks intruding upon such waters; to establish harbor lines
to which wharves may be extended; to prescribe the places and
manner in which vessels may lie in a harbor; what lights they are
to carry at night, or what course they shall pursue in navigating
a river; to pass reasonable quarantine and inspection laws, and
pilotage, or port regulations; to regulate harbor beacons, buoys,
salvage, and similar matters of a local and limited nature; to
improve the navigability of its waters, and to authorize the col-
lection of tolls in consideration of such improvements."
See also the recent case of People v. International Bridge Co.,
223 N. Y. 137.
The Title to Shore Front Property Upon Navigable Rivers
In Lewis Blue Point Oyster Cultivation Co. v. Briggs, 198
N. Y. 287, affirmed by the United States Supreme Court in 229
U. S. 82, 57 L. ed. 1083, the rights of private owners as against
the State and the Nation of land under navigable waters was
very carefully considered by both the New York Court of Appeals
and the United States Supreme Court. The Lewis Blue Point
Oyster Cultivation Co. held a grant under Colonial patents from
the King of England, under which it cultivated oyster beds in
the waters of the Great South Bay. A contractor employed by
the United States Government proceeded to dredge a channel
over the land in question for the purpose of increasing the depth
of the water in aid of commerce and navigation, and his work, if
successful, would have destroyed the oyster beds planted by the
lessees. The latter sought to enjoin the contractor from doing
the work. The New York courts held (and were later sustained
108
REPORT OF PORT AND HARBOR COMMISSION
by the United States Supreme Court): The shores of navigable
rivers and streams and the lands under the waters thereof belong
to the state within whose territorial limits they lie and the state
may authorize the construction of bridges, piers, wharves or other
obstructions in navigable waters, and when such obstructions are
not obnoxious to the regulation of Congress and do not come in
conflict with the paramount authority of the United States, they
are not nuisances even though they cut the access of riparian
owners to the channels of substreams or bodies of water. While
a non-navigable stream is the private property of riparian owners
and cannot be invaded without compensation, a non-navigable
stream being a stream incapable, continuously or at periodic inter-
vals, "in its natural state and its ordinary volume of water, of
transporting, in a condition fit for market, the products of the
forests or mines, or of the tillage of the soil upon its banks"
(Morgan v. King, 35 N. Y. 454, 459), no such rule applies to
navigable streams; and "In patents from sovereign to subject the
rule of construction which controls deeds between individuals is
reversed and the terms are taken most strongly against the
grantee, because the public interest is involved." (198 N. Y.
287, at p. 292.) And "For the same reason it is held that from
grants of water land there is impliedly reserved the right of navi-
gation, and, as a necessary part of so important a subject, the
right to improve navigation for the benefit of commerce.'
(Idem) "
in every grant of lands bounded by navigable
waters where the tide ebbs and flows, made by the crown or the
state as trustee for the public, there is reserved by implication the
right to so improve the water front as to aid navigation for the
benefit of the general public, without compensation to the riparian
The implication springs from the title to the tideway,
the nature of the subject of the grant and its relation to navigable
tidewater, which has been aptly called the highway of the world.
The common law recognizes navigation as an interest of para-
mount importance to the public." Consequently, if the grant from
the king be silent upon the subject, nevertheless, "when any
public authority conveys lands bounded by tidewater, it is
impliedly subject to those paramount uses to which government,
as trustee for the public, may be called upon to apply the water
front for the promotion of commerce and the general welfare.
owner.
99
REPORT OF PORT AND HARBOR COMMISSION
109
We think
that the conveyance of the uplands
in question to a subject should, from public considerations of
the highest importance, be held to have been made with the
implied reservation of the right to freely improve the naviga-
tion of the great seaport, within the general limits of which
said uplands were situated." (Sage v. Mayor, etc. of N. Y.,
154 N. Y. 61, 79; quoted in Lewis Blue Point Oyster Co. case,
198 N. Y., 287, 293, 294.) Accordingly, Judge Vann, writing
the opinion in the Oyster Co. case, says concerning the oyster cul-
tivation company: "It ran the risk when it planted its oysters
that the crop might be interfered with whenever Congress decided
to dig a channel, or otherwise improve navigation in Great South
Bay for the benefit of commerce. Its loss may be severe, but
Congress is not apt to deal ungenerously with those who have
good grounds for relief." In the United States Supreme Court
(Judge Lurton writing the opinion), the decision is rendered
almost simultaneously with the decision of United States v.
Chandler-Dunbar Water Power Company, 229 U. S. 53, 57 L. ed.
1063. The Chandler-Dunbar Co. claimed compensation by virtue
of its control of the water power capacity of the rapids and falls
of the St. Marys River, upon whose foreshore it operated. Con-
gress, by the Act of March 3, 1909, provided that the entire St.
Marys River between the American bank and the international
line, as well as all of the upland north of the present ship canal,
was necessary and should be taken. Judge Lurton says:
"This title of the owner of fast land upon the shore of a navi-
gable river to the bed of the river is, at best, a qualified one. It is
a title which inheres in the ownership of the shore; and, unless
reserved or excluded by implication, passed with it as a shadow
follows a substance, although capable of distinct ownership. It is
subordinate to the public right of navigation, and however helpful
in protecting the owner against the acts of third parties, is of no
avail against the exercise of the great and absolute power of Con-
gress over the improvement of navigable rivers. That power of
use and control comes from the power to regulate commerce
between the states and with foreign nations. It includes naviga-
tion and subjects every navigable river to the control of Congress.
All means having some positive relation to the end in view which
are not forbidden by some other provision of the Constitution are
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REPORT OF PORT AND HARBOR COMMISSION
admissible. If, in the judgment of Congress, the use of the bot-
tom of the river is proper for the purpose of placing therein struc-
tures in aid of navigation, it is not thereby taking private prop
erty for a public use, for the owner's title was in its very nature
subject to that use in the interest of public navigation. If its
judgment be that structures placed in the river and upon such
submerged land are an obstruction or hindrance to the proper
use of the river for purposes of navigation, it may require their
removal and forbid the use of the bed of the river by the owner in
any way which, in its judgment, is injurious to the dominant
right of navigation. So, also, it may permit the construction and
maintenance of tunnels under or bridges over the river, and may
require the removal of every such structure placed there with or
without its license, the element of contract out of the way, which
it shall require to be removed or altered as an obstruction to
navigation."
It must not be assumed, however, from the foregoing statement
that either Congress or the two states, in their respective terri-
tories or combined, are wholly free to deal with the waterfront
in and about the Port of New York. The principle is subject to
qualifications requiring careful statement. In this respect, it is
important to bear in mind that the United States Supreme Court,
in dealing with the rights of riparian owners upon a navigable
stream, is governed by the law of the State in which the stream
is situated (see Weems Steamboat Co. v. People's Steamboat Co.,
214 U. S. 345, and St. Anthony Falls Water Power Co. v. St. Paul
Water Commissioners, 168 V. S. 349), and that the extent of the
authority conferred upon a city by its charter, the construction of
the charter, and the validity, scope and effect of ordinances
and proceedings thereunder and rights of parties thereto under
state law, are regarded by the United States Supreme Court as
matters of state law as to which the decisions of the state courts
are controlling. St. Louis & Kansas City Land Co. v. Kansas
City, 241 U. S. 419.
A: New Jersey
Chancellor Zabriskie, in the leading New Jersey case of Stevens
v. P. & N. R. R. Co., at page 554, 34 N. J. L. 532 (1870), says:
The question [of the rights of private riparian owners] is an
important one, and its consequences of great moment. On the one
66
REPORT OF PORT AND HARBOR COMMISSION
111
hand, every owner of lands on such waters who has purchased and
held them in the belief that this adjacency to the water added to
their value, and was an incident that could not be taken from him,
must lose this supposed right without compensation. And the
owner of docks and wharves built by permission of the state, and
only valuable for purposes of commerce, may have their value
destroyed by a grant to a stranger of ten feet under water adjacent
to them. On the other hand, the state will be entitled to the profits
and advantages of a sale of all the fisheries the water fronts in its
bounds, which, in front of the lands on the Hudson river and bay
of New York, and especially of the docks and wharves erected
there, will be of immense value and contribute greatly to the
financial prosperity of the state, to the advantage of all the inhabi-
tants, and inflict injury on no one except those who have pur-
chased rights, and built wharves, piers, or docks, with indiscreet
confidence in the opinions of lawyers and judges, the declarations
of legislators as to the rights of the riparian owner, the legislation
of the state seemingly conferring certain rights, and in the appar-
ent current of public opinion."
One of the leading cases in New Jersey is Gough v. Bell, 22
N. J. L. (2 Zab.) 441. “The ancient rule of the common law,"
said Green, C. J., " is, that the title of owners of land bounded by
the sea, or by navigable rivers where the tide ebbs and flows,
extends to ordinary high water mark only. The title to the shore
between ordinary high and low water mark, as well as the title
to the soil under the water, belongs prima facie, to the sovereign."
This title, which by the common law of England is vested in the
king, upon the Revolution, became vested in the people of the state
of New Jersey. "In such lands," says Depue in American Dock:
and Improvement Co. v. Trustees of Public Schools, 39 N. J. Eq.
(12 Stew.) 409, 411, 412, “the king had a double right — a right
of jurisdiction for the purposes of government, and a right of
property and ownership the former as part of the prerogatives
of the king as sovereign, the latter as part of the jura regalia of
the crown." In the province of East Jersey the rights in lands
under tidewaters were granted by Charles II to the Duke of York
by the charters of 1664 and 1674, and thereby the land or soil
under such waters became vested in the Duke of York and were
held by him in the same manner as title to the soil under the
112
REPORT OF PORT AND HARBOR COMMISSION
All these
navigable waters of England was held by the crown.
rights, including the right of property in the land under tidal
waters as the right of sovereignty, were transferred by the Duke
of York to the proprietors of East Jersey, and by the surrender
of 1702 were restored to the crown. When the people of New
Jersey took possession of the government and assumed the powers
of sovereignty, the prerogatives .and jura regalia which had pre-
viously belonged to the Crown or to Parliament thereupon became
immediately vested in the State. Accordingly, among the rights
to which the State succeeded was the right formerly vested in
the Crown, of property in the soil under tidal waters, "and the
title of the state in such lands," says Depue, idem,
says Depue, idem, " is proprietary
in its fullest sense, including the power to grant and convey them
to individuals, to be held in private ownership."
""
In Stevens v. P. & N. R. R. Co., supra, Beasley, C. J., carefully
reviewed the history of these water rights and came to the position
"that all navigable waters within the territorial limits of the state,
and the soil under such waters, belong in actual propriety to the
public; that the riparian owner, by the common law, has no
peculiar rights in this public domain as incidents of his estate."
Nevertheless, in Gough v. Bell it was decided, after extensive
examination of the law of the state of New Jersey, that there
existed in New Jersey a modification of the common law. This
modification is the right or license to "wharf out," by which
right, "when the land was reclaimed, or the wharf erected by
the tacit or express consent of the legislature, it became private
property, and divested of its public character. And the owner
has the same absolute domain over it, the same exclusive right of
enjoyment in it, that he has in and over other private property."
(See O'Neill v. Annett, 27 N. J. L. (3 Dutch.) 290, 293, 294,
per Chief Justice Green.)
66
In Marcus Sayre Co. v. Newark, 60 N. J. Eq. (15 Dick. Ch.
361; 13 Dick. Ch. Rep. 136), Judge Depue says: Property in
a wharf or dock on a navigable stream consists in the ability
of the owner to use the structure in connection with the navigable
water." (p. 375.) But this right of acquiring property in
lands under tidal waters by improvement or reclamation was
restrained within the limit of the ordinary low-water mark," per
(6
REPORT OF PORT AND HARBOR COMMISSION
113
Depue in American Dock and Improvement Co. v. Trustees of
Public Schools, 39 N. J. Eq. 409, 412. This right to wharf out
is "a mere license, revocable at the will of the legislature," which
becomes irrevocable only when the license has been executed and
the riparian owner has effected the reclamation. Before the
reclamation is actually made, the state may convey its lands to
any one, either for public or private use, without making compen-
sation to the riparian owner in front of whose lands the convey-
ance is made. (p. 413.) Stevens v. P. & N. R. R. Co., 5 Vr.
532, 34 N. J. L. 532. The history of the evolution of the law of
New Jersey upon this subject is succinctly stated by Judge Depue
in the American Dock and Improvement Co. case. In New
Jersey, accordingly, the common law is modified to the extent of
the existence of this license to "wharf out," which, when exer-
cised, takes the form of a grant from the state irrevocable in its
nature. Nothing short of a complete survey of all the grants of
lands on the waterfront of New Jersey, therefore, will establish
to what extent the control of the waterfront has passed from the
state into the hands of private owners. Thus in New York, Lake
Erie & Western R. R. Co. v. Yard, 43 N. J. L. 632, the Court of
Errors and Appeals of New Jersey considered the rights of the
railroad to land under water at Weehawken, title to which was
derived through the "Weehawken Docks," a corporation which
was created by an act of the legislature of New Jersey passed
March 22, 1867. Passing upon all of the statutes and grants
through which the railroad company claimed title to the water-
front, New Jersey's highest court held: "Neither of the incor-
porating acts referred to contains any grant of lands the title to
which was in the state. They operated only as grants of corporate
franchises; and such grants, by the settled law of this state, will
not be construed to give by implication, any title to lands of the
state below the high-water line." (p. 636.) “As riparian owners,
says the Court, "these corporations respectively would have
annexed to their title to the upland a privilege, incident to the
ownership of lands on tide water, of reclamation, and the acquisi-
tion thereby of title to the lands reclaimed. Power to erect and
construct the works necessary to the execution of this privilege
is enumerated among the franchises granted by their charters.
""
114
REPORT OF PORT AND HARBOR COMMISSION
}
But the inchoate right which the owner of the upland has to
acquire an exclusive title to lands under water by wharfing out
or otherwise improving the same, gives him no property in the
land before it is reclaimed; he has a mere license, revocable by
the legislature at any time before it shall be executed." (Idem)
So, too, in Stevens v. P. & N. R. R. Co., (supra) the license had
not been executed. On the other hand, in Hoboken Land and
Improvement Co. v. Mayor of Hoboken, 36 N. J. L. (7 Vroom)
540, the Court held that the land had been reclaimed and that the
license was, therefore, executed and title to the company was good.
In Marcus Sayre v. Newark, 60 N. J. Eq. 361 (1900), the Court
clearly holds: "The legislature had the power to grant lands in a
navigable river below high-water mark, without regard to the
owner of the adjacent upland". The Court quotes Chief Justice
Beasley in the Stevens v. P. & N. R. R. Co. case: "that all navi-
gable waters within the territorial limits of the state, and the soil
under such waters, belong in actual propriety to the public; that
the riparian owner, by the common law, has no peculiar rights
in this public domain, as incidents of his estate;
66
that,
as a general rule, the public domain is subject altogether to the
control of the legislature;
that, unless in certain par-
ticulars protected by the federal constitution, the public rights in
navigable rivers can, to any extent, be modified or absolutely
destroyed by statute;
that the dominion of the legisla-
ture over the jura publica appears to be unlimited. By this power
they can be regulated, abridged or vacated.""
“These explicit
declarations of the judgment of this court," says Dixon, J. (p.
366-367), seem to place beyond question the power of the legis-
lature to authorize the municipalities of the state to use the tidal
navigable streams within our borders for sewerage purposes. The
federal constitution interposes no obstacle to the exercise of such
a power, provided the availability of the stream for interstate and
foreign commerce be not impaired; and as no private property
exists in such waters, there remain only the jura publica, over
which, in the words of the chief-justice, the dominion of the legis-
lature appears to be unlimited." On the other hand, by the local
common law of this state, the owner of riparian lands acquires
a property in his reclamations by wharfing out or otherwise
((
REPORT OF PORT AND HARBOR COMMISSION
115
improving, and the state cannot appropriate the shore so recovered
to public use without adequate compensation. Consequently, for
any invasion of his property or use of it without lawful authority
such owner is entitled to the same remedies as the owner of prop-
erty is entitled to under the general law of the state. Among the
rights of a riparian owner who has made his improvements
between high and low-water mark is the right to the use of his
wharf and of access to the navigable waters." (p. 372). Thus in the
late case (1900) of Palen v. Ocean C'ity, 64 N. J. L. (35 Vroom)
669, the Court of Errors and Appeals, per Collins, J., says at
p. 673: "It is lastly urged by the defendant that
the
nonsuit was right because the title of the land on which the wharf
stands is not in the plaintiff, but in the State of New Jersey. This
contention ignores the local usage declared in Gough v. Bell, 2 Zab.
441, and upheld in this court in Stevens v. Paterson and Newark
Railroad Co., 5 Vroom 532, that the shore owner has a license,
irrevocable after execution, to build wharves, or reclaim, in front
of his lands down to low water mark. This right is confirmed by
the Wharf act of 1851. Gen. Stat., p. 3753. A wharf so built
becomes private property.'
In Morris Canal and Banking Co. v. Central Railroad Co., 16
N. J. Eq. 419, the claim of the Associates of the Jersey Company
was not sustained, but it appeared that their charter merely gave
them a privilege to build wharves, docks and piers and when so
built to appropriate them to their own use, and conferred upon
them no power to transfer or convey the privilege to any other
corporation. In this case the Master said, at p. 431:
"When we
take into consideration the extent and value of those lands under
water, their situation in relation to our own state and to the city
of New York, with its extensive and valuable trade and commerce,
and forming, as those waters do, an important part of the harbor
of New York, the best, not only in this country but upon this
continent, it is most reasonable to conclude that, if the legislature
intended to grant and convey the fee in said lands, or such right
over them as is contended for by the complainants, that their
intention would be made plainly to appear, and that the grant
itself would be made in clear, direct, and explicit terms." See
also Newark Aqueduct Board v. Passaic, 45 N. J. Eq. (18 Stew.)
393.
116
REPORT OF PORT AND HARBOR COMMISSION
B: New York
A similar, though not identical, legal situation is presented with
reference to the shore front property on the New York side. In
the recent case of First Construction Co. v. State of New York,
221 N. Y. 295, Judge Hiscock writing the opinion, the Court con-
sidered and interpreted grants from the state, including rights to
"wharf out." The Referee in this case, Ex-Judge Haight,
reported (See Vol. 106, 1916, Court of Appeals Cases, Bar
Association Cases on Appeal, p. 98 et seq.): "Under the Com-
mon Law of England the title of lands under tide waters vested
in the King, who could grant and convey the same; but the
dominion and control of the waters in the interests of commerce
and navigation was exercised by Parliament for the benefit of all
the subjects of the Kingdom. After the Revolution and the
separation of the Colonies from the Kingdom, the title of lands
under tide waters, in and surrounding this State, under the con-
stitution adopted, vested in the people, who, through their Execu-
tive and Legislature, exercised the powers that were formerly
vested in the crown and Parliament, in trust, however, for the
benefit of the public. The Legislature of the State have, there-
fore, from time to time enacted laws creating a land board of com-
missioners of the sinking fund empowered to grant lands under
water to the upland owners; and in addition thereto the Legisla-
ture has from time time by special acts made grants to indi-
viduals designed to be in aid of commerce and not inconsistent
with public rights. These grants, however, were all subject to the
consent of Congress, who, under the Commerce Clause of the Fed-
eral Constitution, is empowered to regulate interstate commerce.
This power is now exercised by the Secretary of War under the
provisions of an act of Congress approved March 3, 1899.
"The owners of uplands abutting upon tideways are entitled
to privileges or easements in excess of those possessed by the pub-
lic. Such owners are not only riparian proprietors who may pass
to and from their own uplands across the tideway to the navigable
waters, thus having access to all of their frontage, but in addition
thereto they may load and unload boats, receive and ship goods,
and thus engage in the commerce of the country. Such upland
owners may, with the consent of the Legislature and the approval
REPORT OF PORT AND HARBOR COMMISSION
117
""
of the Secretary of War, erect wharves, piers and bulkheads and
fill in the lowlands so as to afford ways and means for the shipping
and landing of articles of commerce and thus facilitate navigation.
When such improvements have been so made and the filling, and
structures, to the extent made, become a part of the realty and
vests in the riparian owners a right of use in the nature of a grant,
thus creating a right of property of which they cannot be deprived
without consent except by due process of law or under the powers
of eminent domain." The grant in this case contained the fol-
lowing: "that it shall be lawful for William Beard and others,
owners of real estate fronting upon the waters of the bay, their
heirs, and assigns, to erect, construct, build and maintain a sea-
wall or breakwater pier, docks, wharves, bulkheads, piers and
warehouses and a basin for commercial purposes on the lands
under water in front of their premises and to fill in the same.”
This, the Court of Appeals said, "is not a grant of a fee to such
land; but is a permit by which, in so far as such owners of uplands
have under the authority of the statute entered upon and improved
the same by filling in, or the construction of piers, docks, wharves,
bulkheads, etc." The state of New York sought to take the prop-
erty for the construction of the Barge Canal without compensation
for this particular property. Judge Hiscock, writing for the
Court of Appeals, held that the statutory grant constituted a privi-
lege to fill in and erect wharves and piers. Differing with the
courts of New Jersey, Judge Hiscock said that it was not "a mere
license, revocable by the state at will and without payment of
compensation"; but "the privilege amounts to more than this
and
an act granting the right to fill in lands under
water, and thereby acquire title to the same, gives an inchoate,
vested interest in the lands described which is a property right and
of which, unless forfeited or lost in some way, the grantee cannot
be deprived without compensation." (p. 316). He says further
(317, 318): Grants like the one under consideration are not
nude pacts, but rest upon obligations expressly or implicitly
assumed to carry on the undertaking to which they relate
They are made and received with the understanding that the
recipient is protected by a contractual right from the moment the
grant is accepted and during the course of performance as con-
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REPORT OF PORT AND HARBOR COMMISSION
templated, as well as after that performance." And that, being
in their nature franchises, under the principles established by the
United States Supreme Court in New York Electric Lines Co. v.
Empire City Subway Co., 235 U. S. 179, 193, they cannot be
revoked. In Town of Brookhaven v. Smith, 188 N. Y. 74, it was
held that the Town of Brookhaven could not deprive a riparian
owner whose land is bounded by navigable water from access
thereto from the front of his lot. Judge Gray carefully reviews
the English common law and refuses to accept its doctrine, saying:
"Different political and geographical conditions may justify
modifications and whether common-law rules will be followed
strictly by our courts will, necessarily, where no vested rights
are actually concerned, depend upon the extent to which they are
reasonable and in accord with our public policy and sentiment."
It is a matter of general observation," said Judge Gray, "of
which judicial notice may wisely be taken, that riparian owners
everywhere upon the numerous navigable bodies of waters within
the territorial limits of this state have made their easement, or
right of access, practical and available by the construction of
docks, piers or wharfs, and have done so without interference by
the state, where superior public rights have not been obstructed.
These interests must be very large and if we shall hold with the
English common-law doctrine, that they are purprestures, or
unlawful encroachments upon the proprietary rights of the state,
as would follow, if we affirm this judgment, and that they are
removable at pleasure, it would result in causing a very grave loss.
Such a decision would be to ignore what has been believed to be
a common right, within numerous adjudications of our courts."
((
"The right of access is conceded to be a valuable one and, unless
the foreshore has been appropriated by the general government
to some superior, and lawful, public use, as for example, by grant
to a municipality, or for navigation purposes, it is entitled to the
protection of the law. It has recognition in the statutory provi-
sions which confer upon the owner of the upland the primary
right to a grant of the land under water. It is not objected that
these defendants have erected a nuisance, in itself, or in some
obstruction to public navigation. If it were that, the exercise of
the right would be unreasonable; for such ownership is
REPORT OF Port and HARBOR COMMISSION
119
qualified and is subordinate to the public right of naviga-
tion, and must be subject to such rules as the legislature may
impose for the protection of the public rights in the navigable
waters. The courts of this state have been careful, in all cases,
while sustaining the rights of the riparian owner, to declare them
subordinate to the exercise of the power of the legislature, or of
the Congress, for the improvement of navigation, or for the regu-
lation of commerce. They must yield to the demands of public
commercial necessities. This structure is conceded to be proper
enough for the purpose intended by the defendants and it is no
appropriation of the land under water; other than as the soil is
used to hold the piles. The defendants have, simply, made their
right of access practical. It is a general rule that when the use
of a thing is granted, everything is granted by which the grantee
may enjoy such use. By analogy, we may reason that the riparian
owner's right of access to the navigable waters in front of his
upland comprehends, necessarily and justly, whatever is needed
for the complete and innocent enjoyment of that right.”
On the other hand, at p. 317 of his opinion in First Construction
Co. v. State of New York, 221 N. Y. 295, Judge Hiscock points
out that it is an implied condition of all the grants, like the implied
condition of the grant of a franchise to a railroad, that for failure
to exercise it or to comply with its conditions, it can be forfeited
by the state. "Although the franchise is property, 'it is subject
to defeasance or forfeiture by failure to exercise it, or by subse-
quent abandonment after it has been exercised.' If 'no time is
prescribed, the franchise must be exercised within a reasonable
time.'" (Quoted by Judge Hiscock at p. 319, from New York
Electric Lines Co. v. Empire City Subway Co., 235 U. S. 179,
194, 195.) Following this decision, the Attorney-General pro-
cured an amendment to the Public Lands Law of the state ($77,
Chapter 308, Laws of 1917), which imposes the duty upon the
Secretary of State and the State Engineer and Surveyor to search
out defaults of compliance with such grants, and imposes upon the
Attorney-General the duty to bring appropriate action to annul
such grants in which there is default.
Accordingly, as in the case of New Jersey, a most careful survey
of the titles to the waterfront property vested in private indi-
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REPORT OF PORT AND HARBOR COMMISSION
viduals is necessary before we can determine the extent to which
the state may take over waterfront property without making com-
pensation. The particularity with which such an examination
must be made is illustrated in the very excellent report made by
Harold G. Aron, Special Counsel to the Public Service Commis-
sion, examining the titles of the New York Central Railroad to
waterfront property along the west side of Manhattan.
C: The City of New York
Under the Dongan charter, in 1686, the Crown of England
granted to the city of New York so much of the land around the
Island of Manhattan as lay between high and low water mark,
with jurisdiction over the same, coupled with power "to take in,
fill, and make up and lay out all and singular the lands and
grounds in and about said city and island Manhattan, and the
same to build upon or make use of in any other manner or way as
to them shall seem fit, as far into the rivers thereof and that encom-
pass the same as low-water mark aforesaid." In 1730, the city
received a further grant by the Montgomerie charter. This strip,
four hundred feet in width, lies immediately outside of low water
mark and extends from Corlear's Hook, on the East River, around
the southern extremity of the island to Bestaver's rivulet, except-
ing, however, the space in front of the Battery, with full authority
at any time thereafter "to fill, make up, wharf, and lay out all and
every part thereof." In 1798, the Common Council presented a
petition to the Legislature in which they represented "that as well
for the ornament and improvement of the city, as for the enlarge-
ment of the trade and commerce of the state, and the safety of the
shipping at the wharves of the city, they had lately directed a
permanent street, seventy feet wide, to be laid out and completed
at and on the extremity of their grants already made, and hereafter
to be made, to individuals on the East River, called South street,
and on the North River, called West street, south and west of which
streets, no buildings of any description' were to be permitted to
be erected; that by reason of the curving, and otherwise irregular
state of the shore at low-water mark in the two rivers, at the time
of the making of the grants by their predecessors, a general map
of which, if ever made, could not then be found, such grants were
C
REPORT OF PORT AND HARBOR COMMISSION
121
.6
deemed to extend to unequal distances into both rivers, which
occasioned difficulties in making the two permanent streets regu-
lar; that in many instances, although they were willing gratui-
tously to give the soil under water, on which the two streets, seventy
feet wide, were to be made, yet doubts were entertained whether
they could compel any of the proprietors of the lots fronting on
such streets and who might be willing, to make those streets for
public use in any given reasonable time to be appointed by the
common council; that part of their plan was to extend piers at
right angles from those permanent streets' into the rivers, but
that doubts had also arisen whether they could compel the indi-
vidual proprietors of the wharves to sink and lay out such piers,
or, if they should refuse, whether they would be authorized to
sink and build the piers at the expense of the city, and receive the
wharfage, without incurring a breach of the conditions and coven-
ants contained in their grants to individuals; that some adequate
remedy was essentially necessary in the premises, as well to secure
the health of the citizens as to effect ornament and regularity in
the fronts of the city, and convenience and safety to the trade and
commerce thereof; and they prayed that the legislature would con-
fer such power and authority upon them as would be proper to
remove the difficulties and doubts stated, or make such provision
as to the legislature should seem meet." In compliance with this
petition, in the same year the legislature passed an act under which
West street was laid out, and by $2, provision was made for the
erection of wharves adjoining the streets, and by $5, for the erec-
tion of piers. By Chapter 126 of the Laws of 1806, the legisla-
ture further confirmed the rights of those who had erected piers
by the direction of the city. In April, 1807, by Chapter 115 of
the laws of that year, the commissioners of the land office were
authorized to grant by letters-patent to the city of New York all
the right and title of the people of the state to the lands covered
with water along the easterly shore of the North River, as
described in the grant, and also along the westerly shore of the
East River, and in December, 1807, the commissioners of the land
office by letters-patent granted to the city all the right and title of
the people of the state of New York to the lands covered by water
along the North and East Rivers.
122
REPORT OF PORT AND HARBOR COMMISSION
66
""
John Jacob Astor, as the owner of certain uplands, pursuant to
a grant from the city under the foregoing statutes, built wharves
and streets and claimed to have acquired access to piers at the foot
of King street. The right of his grantees came before the Court
of Appeals in Langdon v. Mayor, 93 N. Y. 129, in which, after
reviewing the foregoing history, Earl, J., writing the opinion
for the Court, held:
taking the language of the
charters and grants, the course of legislation, and all the statutes
in pari materia, the situation of the lands granted and the use to
which many portions of them had, with the knowledge and consent
of the legislature, been from time to time devoted, it is very clear
that the lands under water around the city were conveyed to it
in fee, to enable it to fill them up as the interest of the city might
require, and to regulate and control the wharves and wharfage.
Thus, having the power and the title, the city could transfer and
convey it to individuals. Having the power to extend the ripa
around the city, and thus make dry land, it could authorize any
individual to do it. Whatever wharves and docks it could build,
it could authorize individuals to build, and whatever wharfage it
could take, it could authorize individuals to take." Accordingly,
it was held that Astor's grantees could not be deprived of their
rights, even when the property was needed for a public use, except
under the right of eminent domain, and upon making compensa-
tion; that the legislature could not authorize a destruction or
impairment of these property rights without compensation. In
the course of the opinion, Judge Earl said that the common law
rule requiring both that "all grants by the sovereign of exclusive
privileges and franchises, and all gratuitous grants of land should
be strictly construed against the grantee
should not be
(C
applied to grants of land made for a valuable and adequate con-
sideration paid or agreed to be paid by the grantee." He said:
"The Federal government annually makes numerous grants of
lands for value paid, and so do some of the states and cities, and
it would be quite absurd and perhaps alarming to apply to such
grants, usually made by intelligent public officers, with delibera-
tion, in language carefully chosen, under the advice of counsel,
the strict rule of construction which at common law was applied
to the grants of the English sovereigns." In discussing the power
of the city, Judge Earl said:
REPORT OF PORT AND HARBOR COMMISSION
123
"It is, however, further contended by the appellants that the
city did not have the power to grant the permanent easement
claimed by the plaintiff; that the legislature had not conferred
upon it the power, by creating an easement over land yet covered
by water, forever to preclude either the city or state from exer-
cising that public dominion over navigable waters which was neces-
sary to enable it to discharge the trust of furnishing to the com-
merce of a great seaport those accommodations which, in the judg
ment of the city or the state, such commerce may; from time to
time, require; that even if the state could delegate the power to
the city to grant such an easement, applying the strict rule of
interpretation which they invoke for the construction of public
grants, there is no language in the act of April 3, 1807, from
which any power to create such an easement can be inferred; that
the control over the waterfront of the city is a public right pertain-
ing to the sovereignty of the state, and that any surrender of it,
even to a subordinate governmental agency, such as municipal cor-
poration, can be proved only by the most indubitable evidence;
and that the corporate authorities of the city at any particular
time could not bind their successors and prevent a further exten-
sion of the water-front in the future.
"These views have at least in part been answered by what has
already been written. As we think we have shown, the state could
have made the grant to Astor as broad as the plaintiff claims it
to be. It could make the same grant to the city, and it could
authorize it to make the grant to an individual. Under its old
charters and the acts of 1798 and 1807, the city had the right to
build wharves along its water fronts, and to take the wharfage
accruing therefrom. The land under water with the rights of
wharfage was property belonging to it as proprietor, which it is
believed, the state could not take without making compensation.
(Dill on Mun. Corp. [2d ed.] §40; Cooley's Const. Lim. [4th ed.]
292). It is property which it could lease and sell to individuals,
and which it has always been accustomed to lease and sell, and its
right to do so is provided for or recognized in various acts of the
legislature."
Judge Earl said further: "The views we have expressed leave
the city and the state with ample power to improve the harbor of
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REPORT OF PORT AND HARBOR COMMISSION
the city in the interest of commerce. The right of eminent domain
is not impaired and has not been surrendered. The legislature
cannot surrender it, and it may be exercised whenever the public
exigencies call for its exercise. It would doubtless be less expen-
sive for the city arbitrarily to take this easement and thus appro-
priate the wharfage to its own use. But a constitutional barrier
stands in the way. It, however, imposes no burden upon the city,
in requiring it to make compensation for what it takes, as it gets
a dollar of value for every dollar it is obliged to pay."
The same subject received consideration by the Court of
Appeals in Williams v. Mayor, 105 N. Y. 419, where Judge Finch
wrote the opinion. He again reviews the grants under the Dongan
and Montgomerie charters and the statutes by which the city was
authorized to erect piers, wharves and bulkheads, and reaches the
conclusion "that the state did by its earlier acts and their recog-
nition in 1857, permit solid filling on its lands under water within
the bulkhead lines, and by that process part with its title and
transfer it to him who lawfully made the new land as an approach
to the docks. And this view is further strengthened by the two
facts that the State has seen this process going on for about half a
century without once interfering or asserting a hostile right, but,
on the contrary, has given to the city, whenever requested, formal
conveyances of its lands so occupied." The following observations
of Judge Finch seem pertinent: "It seems only necessary to add
that we do not view the grant by the State to the city as without
consideration, and purely and simply a gift. The state owned but
a single seaport open to commerce and touched by tide water, and
that one a harbor of remarkable size and convenience. Its interest
to concentrate there ships and cargoes from all parts of the world,
by protecting the harbor and lining it with docks and piers, was
very great, and took on the character of a duty due to the pros-
perity of the commonwealth. It early imposed that duty upon the
city and the citizens by whom it has been steadily performed, at
very great cost, and one in the future to be largely increased.
Every grant the state made was in aid of the expenditure involved
in the performance by the city of that duty, and in consideration
of that performance. Little enough of its own duty has been borne
by the state, and to call that little a pure gratuity amounts almost
to a sarcasm.”
REPORT OF PORT AND HARBOR COMMISSION
125
Again, in the Matter of Mayor, etc., of New York, 182 N. Y.
361, where the question arose concerning property abutting upon
Riverside Drive between 72nd and 129th streets, Judge Haight
writes the opinion for the Court:
"The rights of the sovereign, whether crown or state, to land
under water in navigable streams and arms of the sea are doubtless
twofold, proprietary and governmental. As proprietor, the sover-
eign may sell or convey to others, but as to the power to govern,
the sovereign holds as trustee for the use of the public, under such
laws, rules and regulations as may from time to time be adopted
and which shall be deemed to best serve the interests of commerce
and the state. These powers may be transferred by the sovereign
to local subordinate governments which have been established,
constituting such governments the trustees of the public and the
guardians of the rights and privileges of the people. The king of
England, therefore, during our colonial period had the power to
grant a charter to the mayor, aldermen and commonalty of the
city of New York, constituting it a body corporate and politic with
powers of local government, and to convey to it the lands under
water surrounding Manhattan island, on which the city is located.
This power the king exercised through his colonial governors, who
from time to time have enlarged the powers and jurisdiction of
the city. While the king had the power to convey the tideway on
the shores of the high seas and navigable rivers, he will not be pre-
sumed to have done so by merely bounding the conveyance upon
the sea or the river; such conveyance will carry title only to high-
water mark. Other words must be employed in the conveyance
which would clearly indicate his purpose and intent to convey the
lands under water in order to pass the title thereto. (Trustees of
Brookhaven v. Strong, 60 N. Y. 56; Sage v. Mayor, etc. of N. Y.,
154 N. Y. 61; Mayor, etc. of N. Y. v. Hart, 95 N. Y. 443.) At
page 366, Judge Haight reviews the grant of powers in the Dongan
charter of 1686, italicizing the words "dockage or wharfage" in
the phrase which granted "their rights and appurtenances,
together with all the profits, benefits and advantages which shall
or may accrue and arise at all times hereafter, for dockage or
wharfage
" and says: (pp. 368-9)
"It is quite apparent from a reading of the charter that a local
subordinate municipal government was here established, to which
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REPORT OF PORT AND HARBOR COMMISSION
the sovereign delegated the powers of local government, not incon-
sistent with the laws of England or of the province of New York,
and to which he conveyed the tideway surrounding the island.
While we have no express provision of the charter delegating to
the municipality the sovereign power to hold the tideway as trustee
for the use of the public and for commerce, and to make laws, rules
and regulations with reference thereto, we think this power was
intended to be delegated to the municipality, and that such intent
is clearly inferable from the provisions of the charter growing out
of the general powers given to its common council to make laws,
ordinances and constitutions, and to amend the same from time
to time as may be deemed necessary, and from the fact that he
conveyed to the city the land between high and low-water mark.
The conveyance of the tideway to the city interposed a barrier
between the body of the river and the uplands which would prevent
the sovereign from erecting docks, piers or wharves thereon for
the accommodation of commerce, and is inconsistent with the pur-
pose of the sovereign to longer retain jurisdiction, control and
management thereof for the interest of the public. We, therefore,
are of the opinion that it was the intention of the sovereign to
delegate to the municipality the power to hold and control the tide-
way in the interest of commerce and of the public; and that this is
apparent from the fact that the charter not only conveyed to the
city the tideway, but also granted to it the bridge, docks and piers
already constructed, with the right to collect wharfage therefrom.
If we are right in this conclusion, it follows that the officers of the
city, in conveying to De Kay in 1701, did so as the representatives
of the sovereign power delegated to it as a municipal government;
and it is deemed, therefore, to have intended only to have included
in the conveyance the uplands to high-water mark, retaining the
tideway and lands under water as trustee of the public domain in
the interests of commerce and of the state."
On the other hand in Sage v. Mayor, 154 N. Y. 61, the plain-
tiff traced his title back to a grant to Governor Nichols in 1667,
whereby the inhabitants and freeholders of the village of New
Harlaem acquired certain lands bounded on one side by the Har-
lem River, together with "all the soils, creeks "etc. Under
a plan adopted in 1887 for the improvement of the Harlem River
REPORT OF PORT AND HARBOR COMMISSION
127
between 94th and 95th streets, the city began building a sea-wall
behind which it was filling in. This improvement was made pur-
suant to prior legislation for the improvement of the waterfront of
the city of New York, and was in accordance with plans adopted
by the Dock Department. The outer portion of the improvement
consisted of bulkheads, docks and piers, traversed by a marginal
street 125 feet wide, running parallel with the river and situate
below the old low-water mark. The plaintiff claimed that his grant
ran to low-water mark and covered the lands under water to the
bulkhead line established by the Harbor Commission, and sought
to restrain the defendants from continuing with the improvement.
The opinion of Judge Vann in this case is cited with approval
by the United States Supreme Court in Scranton v. Wheeler, 179
U. S. 161, 45 L. ed. 137, 21 Sup. Ct. Rep. 48. "As against the
general public," says Judge Vann, "as organized and represented
by government, they [riparian owners] have no rights that do not
yield to commercial necessities, except the right of pre-emption,
when conferred by statute, and the right to wharfage, when pro-
tected by a grant and covenant on the part of the state, as in the
Langdon and Williams cases."
The right of riparian owners bordering on the old city of Brook-
lyn, however, rests upon a different set of facts, as appears from
Steers v. City of Brooklyn, 101 N. Y. 51, which the Court dis-
tinguished in Sage v. Mayor at p. 83. In Bedlow v. N. Y. Float-
ing Dry Dock Co., 112 N. Y. 263, 273, the Court of Appeals said
that certain grants made to the city of New York of land under
water "were obviously made to extend municipal control over said
lands, and enable the city to regulate the erection of necessary
structures upon the land under water around the island, with a
view of promoting facilities for the growing commerce and trade
of the port of New York and to regulate and preserve the rights
of riparian owners in such lands, and the navigable waters cover-
ing them."
The origin of the rights of the old city of New York to ferry
charters is told by Earl, J., in writing the opinion for the Court of
Appeals in Mayor v. Starin, 106 N. Y. 1. In this case it was held
that the city of New York had the exclusive right to maintain and
operate ferries between New York and Staten Island, and that
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REPORT OF PORT AND HARBOR COMMISSION
having that right, it could lease to the Staten Island Ferry Co.;
that the grant by the Montfomerie charter to the city of New York
of ferry franchises from the "Island Manhattan's to any of the
opposite shores all around the same island" was intended to
secure to the city all the ferry franchises to and from it. Judge
Earl said: "The sovereign was competent to grant and the city to
receive these ferry franchises. Such a franchise is property, and
the sovereign power is just as able to make an irrevocable grant
of it as of any other property. If it can grant a ferry franchise
for a term of years, it can do so forever. By so doing, it does not
part with any political or governmental function. It still may
regulate the conduct of the ferry for the public good and control
the tolls to be charged; and it can resume the proprietary right in
the franchise only by exercising the right of eminent domain or
by forfeiture enforced through regular judicial proceedings. By
this grant the city did not merely receive the political right to
establish and regulate ferries, but it received the property in the
ferry franchises as it received the other property granted to it by
its various charters; and we do not find any evidence in the record
that what it so received it has ever lost or been deprived of."
The New York Court of Appeals, therefore, has treated the
grants of wharf and ferry rights to the city of New York, and,
through the city to private individuals, as in their nature fran-
chises, and has applied the same principle as it has applied in
the grant of street railway franchises by the city of New York.
"The title to streets in New York," said Ruger, Chief Justice,
in People v. O'Brien, 111 N. Y. 1, at p. 38, "is vested in the city
in trust for the people of the state, but under the Constitution and
statutes it had authority to convey such title as was necessary for
the purpose, to corporations desiring to acquire the same for use
as a street railroad. The city had authority to limit the estate
granted either as to the extent of its use or the time of its enjoy-
ment, and also had power to grant an interest in its streets for a
public use in perpetuity, which should be irrevocable."
In the most recent utterance upon this subject, the New York
Court of Appeals has said: (April, 1918- Matter of Quinby v.
Public Service Commission, 223 N. Y. 244, at pages 261, 262,
Pound, J.): "
our Constitution, by requiring the con-
REPORT OF PORT AND HARBOR COMMISSION
129
sent of the local authorities, recognizes that our municipalities are
pro tanto independent of legislative control, exercising some frag-
ment of power, otherwise legislative in character, which has been
thus irrevocably transferred by the fundamental law from the
legislature to the locality. The grant by the municipality of
authority to use the streets is not a mere privilege or gratuity.
Once accepted, it becomes a contract which neither the state nor
its agencies can impair."
While recognizing fully, therefore, the limitations in private
grants of waterfront property (as the Court did in the Sage case
and the Blue Point Oyster case), and recognizing fully the
reserved federal and state power to regulate commerce and naviga-
tion, it still remains true that by "the right to wharf out" in New
Jersey, by express grants from the states, and by grants from the
city of New York, rights in the nature of franchises are out-
standing, irrevocable in their nature and to be acquired only by
the exercise of the power of eminent domain. In the case of the
city of New York there are at present outstanding bonds for dock
improvements amounting to $122,872,036, the proceeds of which
as issued were applied to dock and ferry improvements. The
waterfront property which the city owns forms part of the assets
pledged to secure these bond issues. By the Constitution of the
state of New York, Article VIII, §10, the city is forbidden to
borrow more than ten per cent of the assessed valuation of the real
estate within its city limits, but in the computation of the indebted-
ness, property which is self supporting, that is, pays the interest
and sufficient to create a sinking fund to amortize the principal of
the debt, is excepted. It would seem, therefore, as though the
city's dock and ferry property involved not merely the rights of
the city itself, but also the rights of those holders of municipal
securities which have been issued upon the basis of the ownership
of the docks and ferries by the city.
We shall presently consider the power of the state to alter or
destroy municipal corporations; but in Graham v. Folsom (1905),
200 U. S. 248, recognizing this power of the state to change
municipal boundaries, the United States Supreme Court held,
nevertheless, that, so far as the impairment of the obligation clause
of the Federal Constitution is concerned, the power of the state
5
130
REPORT OF PORT AND HARBOR COMMISSION
to alter or destroy its municipal corporation is not greater than
the power to repeal its legislation, and the alteration or destruc-
tion of subordinate governmental divisions is not the proper exer-
cise of legislative power when it impairs the obligations of con-
tracts previously entered into. In that case a municipal corpora-
tion had incurred substantial indebtedness. The legislation by
which its organization was destroyed and its territory added to
other municipalities was held to be unconstitutional. Likewise,
in Mount Pleasant v. Beckwith, 100 U. S. 514, and Mobile v. Wat-
son, 116 U. S. 289, where, similarly, municipal corporations had
incurred indebtedness and state legislators later sought to destroy
the municipal corporation and to add their territory to other
municipalities, the legislation by which this was sought to be
accomplished was held to be in impairment of the obligation clause
of the Federal Constitution. In Graham v. Folsom, at pages 253,
254, Mr. Justice McKenna, speaking for the Court, said: "It
was argued in those cases, as it is argued in this, that such altera-
tion or destruction of the subordinate governmental divisions was
a proper exercise of legislative power, to which creditors had to
submit. The argument did not prevail. It was answered, as we
now answer it, that such power, extensive though it is, is met and
overcome by the provision of the Constitution of the United States
which forbids a state from passing any law impairing the obliga-
tion of contracts. See also Shapleigh v. San Angelo, 167 U. S.
646, 42 L. ed. 310, 17 Sup. Ct. Rep. 957. And this is not a limita-
tion, as plaintiffs in error seem to think it is, of the legislative
power over subordinate municipalities, either over their change or
destruction. It only prevents the exercise of that power being
used to defeat contracts previously entered into.”
The repeal of a law may be more readily undertaken than the
abolition of townships, or the change of their boundaries or the
boundaries of counties. The latter may put on the form of a
different purpose than the violation of a contract. But courts
cannot permit themselves to be deceived. They will not inquire
too closely into the motives of the state, but they will not ignore
the effect of its action." (p. 253).
"The city," says Judge O'Brien, speaking for the Court of
Appeals in People ex rel. Rodgers, 166 N. Y. 1, at p. 11, "is a
REPORT OF PORT AND HARBOR COMMISSION
131
corporation possessing all the powers of corporations generally
and cannot be deprived of its property without its consent or due
process of law any more than a private corporation can, and since
its revenues must be used for municipal purposes, it is difficult
to see how the legislature can make contracts for it which involve
the expenditure of these revenues without its consent."
And in passing upon such statutes the United States Supreme
Court will follow the rule laid down by it in the case of Henderson
v. Mayor of New York, 92 U. S. 259 (1875), namely, that it will
examine the statute and determine its real purpose and effect
regardless of the form in which it may be couched.
"The con-
((
tention that securities representing a large part of the world's
wealth," says Ruger, C. J., in People v. O'Brien, 111 N. Y. 1, at
p. 36, are beyond the reach of the protection which the Consti-
tution gives to property, and are subject to the arbitrary will of
successive legislatures, to sanction or destroy at their pleasure or
discretion, is a proposition so repugnant to reason and justice as
well as the traditions of the Anglo-Saxon race in respect to the
security of rights of property, that there is little reason to suppose
that it will ever receive the sanction of the judiciary, and we
desire in unqualified terms to express our disapprobation of such
a doctrine." The policy of the state, so far as the city of New
York is concerned, is reflected also in the provisions of the Public
Lands Law. Subdivision 5 of $75 of that law provides, first, that
"The commissioners of the land office may grant in perpetuity or
otherwise, to the owners of the lands adjacent to the lands under
waters specified in this section, to promote the commerce of this
state or for the purpose of beneficial enjoyment thereof by such
owners, or for agricultural purposes, so much of said lands under
water as they deem necessary for that purpose. No such grant
shall be made to any person other than the proprietor of the
adjacent lands, and any such grant made to any other person
shall be void." And second: "No such grant shall be made of
any lands belonging to the city of New York, or so as to interfere
with the rights of that city
And in the Act for the
construction of the Barge Canal (Chapter 746, Laws of 1911, §6)
it is provided that "Lands under water and uplands now belong-
ing to the city of New York shall not be taken by condemnation
""
132
REPORT OF PORT AND HARBOR COMMISSION
for terminal purposes, but by agreement between the city of New
York, acting through its board of estimate and apportionment,
and the state, acting through the canal board, with the approval
of the governor; and such agreement may fix the compensation
to be paid to the city, if any, fix the respective rights of the city
and state to income derived from the use of the docks and the
rates to be charged for such use, but the state shall have sole title
to the terminals, lands under water and uplands and the sole right
to the management, regulation, construction and maintenance
thereof." The state may, therefore, acquire title to any property
owned by the city, but it must do so under terms which recognize
the city's obligations to holders of the city's bonds, and recognize
the city's interest in the revenue derived from such property.
That the views herein expressed with regard to the state's power
over the city's waterfront and the rights of private owners acquir-
ing grants from the state or from the city are likely to be sustained
by the United States Supreme Court, appears from an examina-
tion of both the prevailing and dissenting opinions in the recent
case of Long Sault Development Co. v. Call, 212 N. Y. 1, affirmed
in the United States Supreme Court, 242 U. S. 272. In this case
it appeared that by Chapter 355 of the Laws of 1907, the state
created a corporation to construct and maintain dams in connec-
tion with the St. Lawrence River. The Court of Appeals held that
this act was unconstitutional. The prevailing opinion, written by
Chief Justice Willard Bartlett, distinguishes the case from the
Langdon, Williams and other cases cited upon the ground that the
Act of 1907 of the legislature "virtually turns over to the cor-
poration entire control of navigation at the Long Sault Rapids."
In setting aside the grant from the state as unconstitutional, how-
ever, he clearly says, quoting from Coxe v. State of N. Y., 144
N. Y. 396, 407: "For every purpose which may be useful, con-
venient or necessary to the public, the state has the unquestionable
right to make grants in fee or conditionally for the beneficial use
of the grantee, or to promote commerce according to their terms.
The extensive grant to the city of New York of the lands under
water below the shore line around Manhattan Island clearly comes
within this principle, since it was a grant to a municipality, con-
stituting a political division of the state, for the promotion of the
REPORT OF PORT AND HARBOR COMMISSION
133
commercial prosperity of the city, and, consequently, of the people
of the state.""
""
Again, at page 8: "The power of the legislature to grant land
under navigable waters to private persons or corporations for
beneficial enjoyment has been (xercised too long and has been
affirmed by this court too often to be open to serious question at
this late day." The dissenting opinion in the Court of Appeals by
Judge Collin is a compendious digest of the law upon the subject,
with which the prevailing opinion is in complete accord except
with reference to the single matter of the effect of the grant in the
case then before it, Judge Bartlett saying (p. 10):
"The point
that I desire to emphasize is that the legislature cannot authorize
the conveyance of a navigable portion of the St. Lawrence to a
private company to maintain and control navigation thereon,
thereby parting for all time with its own power to improve such
navigation. The privilege of the state to control the St. Lawrence
as a navigable river (subject to the direction of Congress) cannot
be assigned to others in the manner attempted by this legislation.
Notwithstanding this, in the United States Supreme Court both
Mr. Justice McKenna and Mr. Justice Pitney dissent upon the
ground that "chapter 355 of the Laws of 1907 of the state of New
York, creating the Long Sault Development Company and con-
ferring upon it certain rights and franchises, when accepted, as it
was, by the company, constituted a contract between the state and
the company; that the repealing act and accompanying legislation
passed in 1913 (chaps. 452 and 453) had the effect of impairing
the obligation of that contract, in contravention of §10 of article
1 of the Federal Constitution." The prevailing opinion in the
United States Supreme Court, by Mr. Justice Clarke, holds only
that the United States Supreme Court will not review the decision
of a state court when the claim of contractual rights under a state
statute is denied by the state court purely upon the ground that
the attempted grant was in conflict with the state Constitution and
therefore void ab initio. No such question is presented with
regard to state grants in and about the Port of New York as was
presented in the Long Sault case (above) or in the case of Illinois
Central R. Co. v. People of the State of Illinois, 146 U. S. 387.
In that case, the grant to the Illinois Central Railroad of a sub-
134
REPORT OF PORT AND HARBOR COMMISSION
stantial part of the waterfront of Lake Michigan was held to be
invalid. The title which the States hold to lands under navigable
water, says the United States Supreme Court, "is a title held in
trust for the people of the state that they may enjoy the naviga-
tion of the waters, carry on commerce over them, and have liberty
of fishing therein freed from the obstruction or interference of
private parties. The interest of the people in the navigation of
the waters and in commerce over them may be improved in many
instances by the erection of wharves, docks and piers therein, for
which purpose the state may grant parcels of the submerged lands;
and, so long as their disposition is made for such purposes, no
valid objections can be made to the grants." The Court expressly
differentiates "grants of parcels of land under navigable waters,
that may afford foundation for wharves, piers, docks, and other
structures in aid of commerce, and grants of parcels which, being
occupied, do not substantially impair the public interest in the
lands and water remaining, that are chiefly considered and sus-
tained in the adjudged cases as a valid exercise of legislative
power consistently with the trust to the public upon which such
lands are held by the state." But this, says the Court, "is a very
different doctrine from the one which would sanction the abdica-
tion of the general control of the state over lands under the navi-
gable waters of an entire harbor or bay, or of a sea or lake. Such
abdication is not consistent with the exercise of that trust which
requires the government of the state to preserve such waters for
the use of the public. The trust devolving upon the state for the
public, and which can only be discharged by the management and
control of property in which the public has an interest, cannot be
relinquished by a transfer of the property. The control of the
State for the purposes of the trust can never be lost, except as to
such parcels as are used in promoting the interests of the public
therein, or can be disposed of without any substantial impairment
of the public interest in the lands and waters remaining. It is
only by observing the distinction between a grant of such parcels
for the improvement of the public interest, or which when occupied
do not substantially impair the public interest in the lands and
waters remaining, and a grant of the whole property in which the
public is interested, that the language of the adjudged cases can
REPORT OF PORT AND HARBOR COMMISSION
135
be reconciled." Accordingly, the Court holds that since the harbor
of Chicago is of immense value to the people of the state of Illinois
in the facilities it affords to its vast and constantly increasing
commerce, and "the area of the submerged lands proposed to be
[is] more than a thousand acres
ceded
than three times the area of the outer harbor
•
more
as large
66
as that embraced by all the merchandise docks along the Thames
at London
much larger than that included in the famous
docks and basins at Liverpool
twice that of the port of
Marseilles, and nearly if not quite equal to the pier area along
the waterfront of the city of New York," a grant of such kind is
necessarily revocable, and the exercise of the trust by which the
property was held by the state can be resumed at any time."
Whether or not the state of New Jersey or the United States
Supreme Court would hold that the grants to railroad corporations
along the eastern shore of New Jersey were so extensive as to
involve an impairment of the navigability of the river and thus
come within the two decisions just referred to (the Chicago and
the Long Sault cases) is, of course, difficult to say. Many of these
grants were made for the promotion of commerce and the opera-
tion of these facilities is, in large measure, necessary for the con-
duct of the commerce of the port. That they substantially inter-
fere, however, with the further development of the facilities of
commerce at the port is clear. It would be rash to assert, however,
that there is clear and undoubted authority for the state of New
Jersey to resume possession of this waterfront without compensa-
tion to the present owners.
The Regulation of Waterfront Franchises.
But starting with the assumption that the grants we have been
considering are franchises in aid of commerce, the reserved power
of the States to regulate may in itself be adequate to serve the
needs of both States and the Nation. In all of the cases the
"trust" relationship of the State to its lands under water is nearly
everywhere emphasized, and the grants, when sustained, are sus-
tained upon the basis of the fact that they are in performance
and in aid of the execution of the trust.
136
REPORT OF PORT AND HARBOR COMMISSION
A Chicago municipal ordinance gave permission to a street
railway company to construct a tunnel under the Chicago river,
a navigable stream. Later the increased demands of navigation
justified the lowering of the tunnel. Accordingly, the city passed
an ordinance increasing the channel depth of the river to 21 feet
and requiring the lowering of the tunnel under the river of the
West Chicago Street Railroad Company. "It is indisputable, on
this record," says Harlan, J., (West Chicago Street R. Co. v.
Illinois, 201 U. S. 506, 522) "that the depth of water over the
present tunnel is not sufficient to accommodate many boats and
vessels now commonly employed in commerce between Chicago
and other cities and towns on the Lakes." The United States
Supreme Court held that in a navigable stream the public right is
paramount, and the owner of the soil under the bed can only use
it so far as consistent with the public right. Accordingly, the
municipality through which a navigable stream flows cannot grant
a right to obstruct navigation thereof nor bind itself to permit
the continuance of an obstruction, and this rule is not affected
by the fact that the person claiming the right to continue such an
obstruction is the owner in fee of the bed of the stream. The duty
of not obstructing the navigation is a continuing one; and if the
increasing demands of navigation require a deeper channel than
when the tunnel was originally constructed, it is within the power
of the municipality to compel the railroad company, at the latter's
own expense, either to remove the tunnel or lower it to conform
with the necessity of commerce. (See also the recent case of New
York Dock Co. v. City of New York, decided by the New York
Court of Appeals July 12, 1918, New York Law Journal, August
8, 1918.) See also People v. International Bridge Co., 223 N. Y.
137.
Thus, too, in United States v. Mission Rock Co., 189 U. S. 391,
wherein the Illinois Central Railroad case is referred to with
approval, the doctrine and its limitations, as expressed in Heck-
man v. Swett, 99 Cal. 309, is repeated: (p. 407) "Navigable
streams and the shores to ordinary high water mark are held by
the State in trust for the public; but qualified rights therein may
be granted, so far as they are not inconsistent with, or are in aid
of the principal use, viz., for the purposes of navigation.' In
REPORT OF PORT AND HARBOR COMMISSION
137
other words, the rights granted must be in aid of commerce; and it
is recognized, as we have seen, in judicial decisions and estab-
lished by practical examples that the conveyance by the State of
its title to tide lands to be held in private ownership free from any
easement of the upland proprietor, is in aid of commerce, and
therefore in strict performance of the State's trust." See also
Morris v. United States, 174 U. S. 196 and Shively v. Bowlby,
152 U. S. 1; also Oakland v. Oakland Water Front Co., 118 Cal.
160.
In People v. N. Y. and Staten Island Ferry Co., 68 N. Y. 71,
76, the Court of Appeals held that the soil under navigable waters,
being held by the people of the State in trust for the common use
and as a portion of their inherent sovereignty, any act of legisla-
tion concerning their use affects the public welfare. It is, there-
fore, appropriately within the exercise of the police power of the
State.
In Union Bridge Co. v. United States, 204 U. S. 364, the United
States Supreme Court held: "Although a bridge erected over a
navigable water of the United States under the authority of a state
charter may have been lawful when erected and not an obstruction
to commerce as then carried on, the owners erected it with knowl-
edge of the paramount, authority of Congress over navigation and
subject to the power of Congress to exercise its authority to pro-
tect navigation by forbidding maintenance when it became an
obstruction thereto." So, also, in New Orleans Gas Light Co. v.
Drainage Commissioners, 197 U. S. 453, 461, where the question
related to a franchise to a gas company: "The gas company did
not acquire any specific location in the streets; it was content with
the general right to use them, and when it located its pipes it was
at the risk that they might be, at some future time, disturbed,
when the State might require for a necessary public use that
changes in location be made
We think whatever right
the gas company acquired was subject in so far as the location
of its pipes was concerned, to such future regulations as might
be required in the interest of the public health and welfare."
This is the principle recognized also by Judge Cullen in the New
York Central Case, 202 N. Y. 212. In the Union Bridge Co. case
the Court quotes with approval the statement of the Indiana court
138
REPORT OF PORT AND HARBOR COMMISSION
case:
in Lake Erie & W. R. Co. v. Cluggish, 143 Ind. 347, which, in
turn, is a quotation from Lake Erie & W. R. Co. v. Smith, 61 Fed.
885: "The duty of a railroad to restore a stream or highway
which is crossed by the line of its road is a continuing duty; and
if, by the increase of population or other causes the crossing
becomes inadequate to meet the new and altered conditions of the
country, it is the duty of the railroad to make such alterations
as will meet the present needs of the public."" Again, in the same
"If by the growth of population or otherwise, the crossing
has become inadequate to meet the present needs of the public, it is
the duty of the railroad company to remedy the defect by restoring
the crossing so that it will not unnecessarily impair the usefulness
of the highway.'" (Indiana ex rel. Muncie v. Lake Erie & W. R.
Co., 83 Fed. 284, 287, quoted at p. 402 of Union Bridge Co. case.)
Judge Harlan in the Union Bridge Co. case at p. 393 quotes from
his own opinion in Scranton v. Wheeler: "If the riparian owner
cannot enjoy access to navigability because of the improvement of
navigation by the construction away from the shore line of works
in a public navigable river or water, and if such right of access
ceases alone for that reason to be of value, there is not, within the
meaning of the Constitution, a taking of private property for
public use, but only a consequential injury to a right which must
be enjoyed, as was said" in Yates v. Milwaukee, 10 Wall. 497,
504, 505, 19 L. ed. 984, 986, 987, "in due subjection to the rights
of the public' — an injury resulting incidentally from the exer-
cise of a governmental power for the benefit of the general public,
and from which no duty arises to make or secure compensation to
the riparian owner. The riparian owner acquired the right of
access to navigability subject to the contingency that such right
might become valueless in consequence of the erection under com-
petent authority of structures on the submerged lands in front of
his property for the purpose of improving navigation." However,
this power must not be exercised arbitrarily. If the means
employed have no real substantial relation to public objects which
Government may legally accomplish, if they are arbitrary and
unreasonable beyond the necessities of the case, the judiciary will
disregard mere form and interfere for the protection of rights
injuriously affected by such illegal action. The authority of the
courts to interfere in such cases is beyond all dispute.
REPORT OF PORT AND HARBOR COMMISSION
139
The principle is the same as that applied to railroads crossing
public highways. Their franchises are valid, but subject to the
superior rights of the public. In Cooke v. Boston & Lowell R.
Corp., 133 Mass. 185, (quoted with approval in Union Bridge Co.
v. United States, 204 U. S. 402) the Court said: "The legisla-
ture intended to provide against any obstruction of the safe and
convenient use of the highway for all time; and if, by the increase
of population in the neighborhood, or by an increasing use of the
highway, the crossing which at the outset was adequate is no
longer so, it is the duty of the railroad corporation to make such
alteration as will meet the present needs of the public who have
occasion to use the highway."
In Erie Railroad Co. v. Public Utility Commissioners, decided
by the New Jersey Supreme Court in 1916 (89 N. J. L. 57), it is
held that the orders of the Public Utility Commissioners to abolish
grade crossings "constitute a regulation adopted by the legislature
for public safety under the police power of the state, and hence
are not a taking of private property without just compensation,
although conformity to such regulation involves expense.
وو
In Public Service Railway v. Public Utility Commissioners, 89
N. J. L. 24 (1916), it is held that the provisions of the Fielder
Act, 82, by which ten per cent of the cost of eliminating grade
crossings by steam railroads used by a street railway may be
imposed upon the street railway, is within the legitimate sphere of
legislation under the police power of the State. Judge Garrison,
writing the opinion of the Court, said:
"We agree that this imposition of a part of the expense of
abolishing dangerous grade crossings is neither a tax nor an assess-
ment for a public improvement, but, we think, that it is a legiti-
mate exercise of the police power. The contention of counsel for
the prosecutor is placed squarely upon the proposition that the
police power is not legitimately exercised in the present case
'unless the property (of the prosecutor) has become a public nuis-
ance, and so lost its right to protection;' and he then proceeds to
demonstrate that a street railway is not a public nuisance. We, of
course, agree to this, but we entirely dissent from the narrow
definition of the police power which would restrain its exercise to
the case of property that had become in a legal sense a nuisance.
140
REPORT OF PORT AND HARBOR COMMISSION
“If such a narrow definition has any place in the doctrine of the
police power (it is confined to the appropriatory aspect of that
power), i. e., to such appropriation as is incidental to the destruc-
tion of property as a nuisance and has no place in the vastly wider
scope of such power that is regulative of energies that are curbed,
not that they may be impaired or destroyed, but, on the contrary,
that they may be of greater service and beneficence to the public."
The United States Supreme Court, in the case of Chicago, Mil-
waukee & St. Paul Railway Co. v. Minneapolis, 232 U. S. 430,
speaking through Mr. Justice Hughes, said: "It is well settled
that railroad corporations may be required, at their own expense,
not only to abolish existing grade crossings but also to build and
maintain suitable bridges or viaducts to carry highways, newly
laid out, over their tracks or to carry their tracks over such high-
ways" (p. 438). And as to other public utilities, the doctrine of
their subservience to the police power of the State is held to be the
same. See Jersey City v. City of Hudson, 13 N. J. Eq. 420;
Stillwater Co. v. Stillwater, 50 Mo. 498; Detroit v. Fort Wayne
& Elmwood Railway Co., 90 Mich. 646; Columbia Gas & Coke
Co. v. Columbus, 50 Ohio St. 65; Natick Gas Co. v. Natick, 175
Mass. 246; New England Telegraph & Telephone Co. v. Boston
Terminal Co., 182 Mass. 397; New Orleans Gas Light Co. v.
Drainage Commissioners, 197 U. S. 453.
•
The distinction between the regulatory power of Congress and
the States and the conscription of a franchise is made clear from
a study of the two cases of Monongahela Navigation Co. v. United
States, 148 U. S. 312, 341, 343, and the recent decision in Louis-
ville Bridge Co. v. United States, 242 U. S. 409. In the Louisville
Bridge Co. case, the Secretary of War required the alteration of
the Ohio Falls Bridge within three years, so as to provide an
enlarged horizontal opening for the main navigable channel and
to change the swing-span across the canal to a lift-span having a
prescribed horizontal clearance and a prescribed vertical clearance
when open. The Ohio Falls Bridge was constructed by Act of
Congress following the Civil War. In the Monongahela Naviga-
tion Co. case there was an actual taking of certain locks and dams
which had been constructed and maintained by State authority by
a navigation company. The United States Supreme Court held
REPORT OF PORT AND HARBOR COMMISSION
141
that "the franchise is a vested right. The State has power to
grant it. It may retake it, as it may take other private property,
for public uses, upon the payment of just compensation. A like,
though a superior, power exists in the national government. It
may take it for public purposes, and take it even against the will
of the State; but it can no more take the franchise which the State.
has given than it can any private property belonging to an indi-
vidual" (p. 341). In the Louisville Bridge Co. case, Judge Pit-
ney, speaking for the United States Supreme Court, says
(referring to the Monongahela Navigation Co. case):
"But it
will be observed that this was not a case of removing a structure
from the river on the ground that it interfered with navigation,
but a taking over of a structure and employing it in the public
use as an instrumentality of navigation. In short, there was a
clear taking of the property of the company for public use as prop-
erty, and an attempt at the same time to exclude from considera-
tion an essential element of its value when ascertaining the com-
pensation to be paid" (pp. 422, 423).
We have already considered (see supra, page 29 et seq.) the
power of the State to act in the absence of federal action in mat-
ters relating to the improvement of navigation and commerce.
Mr. Justice Gray, delivering the opinion of the United States
Supreme Court in Chicago, Milwaukee & St. Paul R. Co. v. Solan,
169 U. S. 133, 137, said: "The rules prescribed for the construc-
tion of railroads, and for their management and operations,
designed to protect persons and property, otherwise endangered
by their use, are strictly within the scope of the local law. They
are not, in themselves, regulations of interstate commerce, although
they control, in some degree, the conduct and the liability of those
engaged in such commerce. So long as Congress has not legislated
upon the particular subject, they are rather to be regarded as legis-
lation in aid of such commerce, and as a rightful exercise of the
police power of the State to regulate the relative rights and duties
of all persons and corporations within its limits."
Broad powers of regulations in the interest of improving the
navigability of those waterways which constitute the great public
highways of the Port of New York still remain with the two States
142.
REPORT OF Port and HARBOR COMMISSION
as part of the police power. In the establishment of such regula-
tions there is no interference either with contract or property
rights.
Through What Agencies the State May Act
A: Corporations
Both the State and federal authority may be exercised through
the medium of a private corporation. In the Stockton case, the
State of New York had granted a franchise to operate a railroad
and to construct a bridge across the Arthur Kill (Stockton v.
Baltimore & N. Y. R. Co., 32 Fed. 9). Discussing the matter of
the grant of power to a private corporation, Judge Bradley said:
“At all events, if congress, in the execution of its powers, chooses
to employ the intervention of a proper corporation, whether of the
state, or out of the state, we see no reason why it should not do
so. There is nothing in the constitution to prevent it from making
contracts with or conferring powers upon, state corporations, for
carrying out its own legitimate purposes. What right of the state
would be invaded? The corporation thus employed, or empow-
ered, in executing the will of congress, could do nothing which the
state could rightfully oppose or object to. It may be added that
no state corporation more suitable than the defendant could be
empowered to build the bridge in question in this case, since one-
half of the bridge is in the state of New York, and the railroad
of the defendant is to connect with it on the New York side.
“In our judgment, if congress itself has the power to construct
a bridge across a navigable stream for the furtherance of com-
merce among the states, it may authorize the same to be done by
agents, whether individuals, or a corporation created by itself,
or a state corporation already existing and concerned in the enter-
prise. The objection that congress cannot confer powers on a
state corporation is untenable. It has used their agency for carry-
ing on its own purposes from an early period."
In Wilson v. Shaw, 204 U. S, 24, the power of Congress to
create corporations for the purpose of building interstate high-
ways is considered. Brewer, J., speaking for the Court, said
(quoting from California v. Central Pacific R. R. Co., 127 U. S.
1): "The power to construct, or to authorize individuals or
REPORT OF PORT AND HARBOR COMMISSION
143
corporations to construct, national highways and bridges from
State to State, is essential to the complete control and regulation
of interstate commerce. Without authority in Congress to estab
lish and maintain such highways and bridges, it would be with-
out authority to regulate one of the most important adjuncts of
commerce. This power in former times was exerted to a very
limited extent, the Cumberland or National road being the most
notable instance. Its exertion was but little called for, as com-
merce was then mostly conducted by water, and many of our
statesmen entertained doubts as to the existence of the power to
establish ways of communication by land. But since, in con-
sequence of the expansion of the country, the multiplication of its
products, and the invention of railroads and locomotion by steam,
land transportation has so vastly increased, a sounder considera-
tion of the subject has prevailed and led to the conclusion that
Congress has plenary power over the whole subject." In the
creation of the vast system of railroads which connects the East
with the Pacific, that traverses States as well as Territories, and
which employs the agency of State as well as Federal corpora-
tions, wider power was freely exercised, as Judge Brewer points
out in Wilson v. Shaw. It is in the exercise of this power that
Congress created the Panama Railroad Corporation and has
created the United States Shipping Board Emergency Fleet Cor-
poration. Mr. Justice Gray, speaking for the Court in Luxton
v. North River Bridge Co., 153 U. S. 525, 529, said: "Congress,
therefore, may create corporations as appropriate means of exe-
cuting the powers of government, as, for instance, a bank for the
purpose of carrying on the fiscal operations of the United States,
or a railroad corporation for the purpose of promoting commerce
among the States." Mr. Justice Gray in the same case refers to
the power of Congress "exercised early in this century by succes-
sive acts in the Cumberland or National road, from the Potomac
across the Alleghanies to the Ohio, to authorize the construction
of a public highway connecting several States." In short, for the
purpose of performing governmental functions either Congress or
the States may create corporations vested with power to perform
such functions.
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!
B: Municipalities
As Judge Dillon has made clear (see Dillon on Municipal Cor-
porations, Vol. I, pp. 25, 26, §15) (9), in general, all of our
American cities, towns and counties are public corporations, full
or quasi, created by the Legislature and invested with power to
decide and control local and subordinate matters pertaining to
their respective localities. They are the administrative form of
the fundamental American idea of government, namely, that the
people are the source of all political power and have the right to
exercise it. "This," says Dillon, "is with us no mere rhetorical
declamation, but a foundation principle upon which our political
institutions rest. As local matters can better be regulated by the
people of the locality than by the central power, we provide that
each road district, each school district, each city, and each county
shall, as to its local concerns, be self-governed.
The
policy of creating local public and municipal corporations for the
management of matters of local concern runs back to the earliest
period of our colonial history, is exhibited in all our legislation,
and expressly or impliedly guaranteed or assumed in our State
Constitutions." Such organizations are, says Dillon, "of course,
subject to the legislature of the State."
In the recent case of People ex rel. Palmer v. Travis, 223 N. Y.
150, considering the relationship of the governmental function to
the franchise granting function, Judge Andrews said: "Clearly,
the purely political jurisdiction may at any time be resumed [by
the State]."
Chief Judge Denio, in Darlington v. Mayor, etc., of New York,
31 N. Y. 164, 196, said the Legislature of the State may modify
the charter of the city, may transfer the functions performed by
the municipality to other municipalities.
In the Dartmouth College case, 4 Wheaton 518, 660, Mr. Justice
Washington said that there were two kinds of corporations aggre-
gate, such as were for public government and others of a private
character. "The first," he said, "are those for the government of
a town, city, or the like; and being for public advantage, are to
be governed according to the law of the land." Such corporations,
he said, were mere creatures of public institution, created exclu-
sively for public advantage, and therefore it is reasonable that
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145
such a corporation may be controlled and its constitution altered
and amended by the Government in such manner as the public
necessity may require. Such legislative interference cannot be
said to impair the contract by which the corporation was formed,
because there is, in reality, but one party to it; the trustees or
governors of the corporation being merely the trustees for the
public. “The statutes of this State," said Judge Denio in the
Darlington case, "furnish instances, too numerous for citation, of
the interference of the legislature with the corporate govern-
ment of the city of New York. If the charter, like that of
Dartmouth College, was private and independent of legislative
interposition, these acts would be void upon the principle of
the judgment of the case cited, and the regulation of the city
government would be confined to the brief prescriptions con-
tained in the charter of the colonial governors."
In the Dartmouth College case Chief Justice Marshall said
that "if the act of incorporation be a grant of political power, if
it create a civil institution to be employed in the administration
of the government, or if the funds of the college be public prop-
erty, or if the State of New Hampshire, as a government, be alone
interested in its transactions, the subject is one in which the legis-
lature of the State may act according to its own judgment, unre
strained by any limitation of its power imposed by the constitu-
tion of the United States." See also Dillon on Municipal Corpo-
rations, Vol. I, p. 59, §32 (20), Vol. I, pp. 142-3, §92 (54).
Harlan, J., speaking for the United States Supreme Court in
Atkin v. Kansas, 191 U. S. 207, 220, says: "Municipal corpo-
rations
are the creatures, mere political subdivisions,
of the State for the purpose of exercising a part of its powers.
They may exert only such powers as are expressly granted to
them, or such as may be necessarily implied from those granted.
What they lawfully do of a public character is done under the
sanction of the State. They are, in every essential sense, only
auxiliaries of the State for the purposes of local government.
They may be created, or, having been created, their powers may be
restricted or enlarged or altogether withdrawn at the will of the
Legislature; the authority of the Legislature, when restricting or
withdrawing such powers, being subject only to the fundamental
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condition that the collective and individual rights of the people of
the municipality shall not thereby be destroyed." It is clear that
the power now vested in the City of New York or in any of the
cities or towns of New Jersey within the Port of New York may
be so amended or modified by action of the Legislature of the
State in which such city or town is situated as to transfer the
regulatory powers over port development to new State agencies.
Thus, in New Jersey, the creation of the Passaic Valley Sewer-
age Commission, which took in as a sewerage district a large
number of municipalities and parts of municipalities in the
counties of Passaic, Hudson, Bergen and Essex, and constituted
the commissioners a "body politic and corporate," was held to
be constitutional. See Van Cleve v. Passaic Valley Sewerage
Commissioners, 71 N. J. L. 183 and 574; 58 Atl. R. 796; 60 Atl.
Rep. 214. It is held that the Legislature of New Jersey may
establish new political districts by designating and delimiting
areas of the State for that purpose. The Supreme Court opinion
is written by Judge Pitney and the opinion by the Court of Errors
and Appeals is written by Judge Garrison. Judge Pitney says
(p. 197): "For all essential purposes, the corporate body created
by this act is but an executive and administrative branch of the
state government, charged with the duty of carrying out in detail
a work that the lawmaking body has determined to establish and
maintain for the good and welfare of the citizens of the state,
and especially of those residing within the sewerage district."
P. 195: "The main purpose of the act is to establish, within
and for a designated portion of the area of the state, a great
public work for a great public purpose, which work is to be estab-
lished, maintained and operated through the instrumentality of
an administrative branch of the central government of the state,
at the cost of the present and future residents of the district par-
ticularly affected.
In effect, the act declares that the
Passaic river and other natural streams within the district are
so polluted by sewage and other deleterious matter as to be a
menace to the health, not to mention the comfort, of the population.
One of the chief objects of this act is to revoke the legis-
lative authority previously given to the municipalities in that
behalf." In Judge Garrison's opinion (p. 578), this act did not
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147
constitute a regulation of the internal affairs of a town in violation
of the constitutional provisions of New Jersey. "Obviously," he
said, "the act is local, as from its nature it must be, but it is
equally obvious that the purpose of the act is a public enterprise,
as distinct from a municipal affair, and that the regulations
referred to are purely incidental to such extra-municipal scheme.
It is not, moreover, true that every public utility that exists in
whole or in part within the geographical boundaries of a muni-
cipality is its internal affair in the same sense that every govern-
mental function that has been committed to it is one of its internal
affairs. So that it may well be and often is the case that the
special license of municipalities to regulate instruments of public
utility within their confines may co-exist with the general legisla-
tive power to direct the larger scheme of which such instruments
are a part.”
Again, in State v. Price, 71 N. J. L. 249, 58 Atl. 1015, Judge
Pitney writing the opinion, held that Paragraph 11 of §11 of
Article 4 of the New Jersey Constitution providing that "the
legislature shall not pass private, local or special laws in any of
the following enumerated cases, that is to say
regulat-
ing the internal affairs of towns and counties; appointing local
offices or commissions to regulate municipal affairs;
granting to any corporation, association or individual any exclu-
sive privilege, immunity or franchise whatever
the
legislature shall pass general laws providing for the case enu-
merated in this paragraph, and for all other cases which, in its
judgment, may be provided for by general laws" is not violated
where the purpose of the Act is to deal with lands owned by the
State in its sovereign capacity and which it holds in trust for the
citizens. "The mere fact," says he, "that a given act of the
legislature is limited in its territorial scope to a portion of the
state coincident with or less than the bounds of a single county
or other municipal division, does not make such act an act regula-
tive of the ' internal affairs' of such county or municipality within
the meaning of the constitutional prohibition.'
وو
So in New York, Chapter 74 of the Laws of 1866, creating the
Metropolitan Sanitary District of the State of New York, was held
to be constitutional. Metropolitan Board of Health v. Heister,
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37 N. Y. 661. This sanitary district took in the counties of New
York, Kings, Westchester and Richmond before Greater New
York was established. So, too, the Act establishing the Metro-
politan Police District of the State of New York, which likewise
took in New York, Kings, Westchester and Richmond, was sus-
tained in People v. Draper, 15 N. Y. 532. At p. 543, Denio,
C. J., said: "Plenary power in the legislature for all purposes
of civil government is the rule. A prohibition to exercise a par-
ticular power is an exception." Accordingly, the Legislature of
each State has undoubted power to create a new district for the
purpose of developing the Port of New York, taking in the various
municipalities, in order the more effectively to execute the public
trust under which the State holds the lands under water in the
navigable highways forming the port, and for the State purpose
of improving commerce and navigation. In doing so, it may
freely transfer power from local municipalities to any new board
or commission that it may create for the purpose. In doing so,
however, the State may not, as we have already pointed out,
destroy the franchise rights of grantees holding waterfront privi-
leges through grants from the State or City, nor impair the obli-
gations of bondholders of such municipalities by taking away the
property of such municipalities or the revenue derived therefrom.
The distinction is very like the distinction drawn by the Court of
Appeals in People v. O'Brien, 111 N. Y. 1, in which the right of
the State to revoke the charter of a railway corporation is sus-
tained, while the franchise right of the corporation to operate a
railroad is at the same time held to be irrevocable.
But though the legal right to take away from cities embraced
within the Port of New York all governmental power over the
port is clear, the principle of local autonomy to which Ex-Justice
Hughes has referred (see supra, p. 42) and which is at the basis
(as Dillon tells us) of all municipal government, remains.
Nowhere is the demand for "local self-government" so persistent
as in the State of New York. In the proposed Constitution
adopted at the 1915 Convention and submitted to the voters at the
November, 1915, election, Section 3 of New Article XV provided
(All new matter): "Every city shall have exclusive power to
manage, regulate and control its property, affairs and municipal
government subject to the provisions of this constitution and sub-
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149
ject further to the provisions of the general laws of the State, of
laws applying to all the cities of the State without classification
or distinction, and of laws applying to a county not wholly
included within a city establishing or affecting the relation
between such a county and a city therein.
"Such power shall be deemed to include among others:" The
power to organize and manage all departments, fix compensation,
etc., to revise or enact amendments to its charter in relation to its
property, affairs or municipal government and to enact amend-
ments to any local or special law in relation thereto.
In Section 4 it was provided: "The Legislature may delegate
to cities for exercise within their respective local jurisdictions
such of its powers of legislation as to matters of state concern as
it may from time to time deem expedient.
"The Legislature shall pass no law relating to the property,
affairs or municipal government of any city excepting such as is
applicable to all the cities of the State without classification or
distinction."
Recognizing, however, that there are many functions dual in
their nature but primarily of State concern, the following was
included:
"The provisions of this article shall not be deemed to restrict
the powers of the Legislature to pass laws regulating matters of
State concern as distinguished from matters relating to the prop-
erty, affairs or municipal government of cities.
Laws affecting cities in relation to boundaries, water supply,
sewerage and public improvements, involving the use of territory
outside the boundaries of cities, and in relation to the government
of cities in matters of State concern and applying to less than all
the cities of the State without classification or distinction are
defined for the purposes of this article as special city laws."
Even had this amended Constitution been adopted by the people,
adequate power would have remained, nevertheless, in the State
to create a State Commission exercising State functions in the
development of the port; and in spite of the provisions for local
autonomy existing in the Constitution of the State of New York,
adequate power exists, as we have seen, to create commissions
exercising a similar State function. The political problem
remains still to be solved, namely, to what extent shall the power
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and the initiative of municipalities in the development of the port
be preserved? The answer in the proposed plan is this: That
there shall be a single Port Authority deriving powers from the
two States, covering a district embracing parts of the two States.
Within this district the Port Authority shall have veto power upon
all port developments and improvements, and in addition shall
have power to initiate improvements, and for that purpose shall
have power to take and hold property, borrow money, construct
and maintain docks, piers and terminals, and collect the revenue
therefrom. Subject always to the federal power to regulate com-
merce and navigation, it shall, additionally, have power to pass
rules and regulations governing the port, but only after consider-
ation of these rules and regulations by the local communities
within the district. In brief, (see Article XVII) before a rule
or regulation becomes operative it must be published and the com-
munities affected thereby have the right to register their approval
or disapproval. If the regulation affects the entire district, com-
munities embracing one-third of the total population may, through
their official bodies, take exception to the regulation. If the Port
Authority so desires, it may then apply to the Appellate Division
of the First and Second Departments (if the regulation is appli-
cable within the State of New York) or to the Supreme Court
of New Jersey (if the regulation is applicable within the State
of New Jersey) for a certificate of "reasonableness and public
necessity." If such certificate be secured, the regulation becomes
binding. If not, it falls. There is thus given full opportunity
for hearing, public discussion, careful examination of each regu-
lation upon its merits. Eighty per cent at least of the regulations
so adopted, in all probability, will never be questioned, but by
this provision every community will be given the opportunity of
public discussion and its "day in court." Yet the paramount
power of the State will not be thwarted in its exercise by the mere
recalcitrance of an unreasonable and dissentient local government.
C: Other Delegated Bodies
In Erie Railroad Co. v. Public Utility Commissioners, 89 N. J.
L. 57 (1916), it is said that to accomplish the ends of government
it has been found expedient to create various boards and com-
missions, which are charged with the duty of supervising, direct-
66
REPORT OF PORT AND HARBOR COMMISSION
151
ing and controlling particular subjects. It has been held that
the granting of such power by the legislature was not a grant of
either legislative or judicial power." In the leading case in New
York, Saratoga Springs v. Saratoga Gas Co., 191 N. Y. 123, it
was held that "the constitutional guaranty does not require or
imply that the three great powers of government, legislative,
executive and judicial, shall be kept absolutely separate and
independent of each other. While legislative powers that are
strictly and exclusively legislative cannot be delegated, yet, both
before and after the ratification of the Federal Constitution by
the state of New York, and under all the constitutions of the
state, the legislature has imposed duties, involving the exercise of
legislative, as well as administrative or judicial, powers upon
administrative and judicial officers. During that time the people
have had ample opportunities, in the adoption of four constitu-
tions, or the amendment thereof, to correct any misconception or
misconstruction as to their powers, on the part of public officers,
whether legislative, executive or judicial, but no constitutional
provision restraining the legislature from delegating legislative
powers, when necessary for the execution of general laws, has been
adopted, and any exercise of power by the legislature which for
a long time has passed unchallenged, or, if challenged, has been
sustained by the courts, must be deemed to have been approved
by the people, unless forbidden by subsequent constitutional pro-
vision." (Headnote.)
The United States Supreme Court has repeatedly held that it
is not a delegation of legislative or judicial power to charge the
Secretary of War or the President or any other administrative
officer with the duty of ascertaining, under a general rule,
whether, for example, a particular bridge is an unreasonable
obstruction to navigation (see Monongahela Bridge Co. v. United
States, 216 U. S. 177). Thus the President may be authorized
to suspend an Act or to put it in operation upon the contingency
of the happening of events to be ascertained by him and made
known by his proclamation. Field v. Clark, 143 U. S. 649, 683.
Chief Justice Marshall, in delivering the unanimous judgment
of the Supreme Court in Wayman v. Southard, 10 Wheaton 1, 43,
45, 46, said that Congress may decide upon a general provision.
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and give powers" to those who are to act under such general pro-
visions to fill up the details." In Field v. Clark, the Court said:
"As the suspension was absolutely required when the President
ascertained the existence of a particular fact, it cannot be said
that in ascertaining that fact and in issuing his proclamation, in
obedience to the legislative will, he exercised the function of mak-
ing laws."
"The true distinction," as pointed out by Judge
Ranney in Cincinnati, Wilmington R. Co. v. Clinton County
Comrs., 1 Ohio St. 88, quoted in Field v. Clark at pages 693-4,
"is between the delegation of power to make the law, which
necessarily involves a discretion as to what it shall be, and con-
ferring authority or discretion as to its execution, to be exercised
under and in pursuance of the law. The first cannot be done;
to the latter no valid objection can be made." "Half the statutes
on our books," says the Court in Moers v. Reading, 21 Pa. 188,
202, quoted by the United States Supreme Court in Field v.
Clark, (6
are in the alternative, depending on the discretion of
some person or persons to whom is confided the duty of deter-
mining whether the proper occasion exists for executing them.
But it cannot be said that the exercise of such discretion is the
making of the law." So in Locke's App., 72 Pa. 491, 498:
"To
assert that a law is less than a law, because it is made to depend
on a future event or act, is to rob the legislature of the power to
act wisely for the public welfare whenever a law is passed relat-
ing to a state of affairs not yet developed, or to things future and
impossible to fully know." See also Buttfield v. Stranahan, 192
U. S. 470, 496 (giving the Secretary of the Treasury authority
to establish uniform standards of purity, quality and fitness of
all kinds of teas) and the recent Acts of Congress by which the
Secretary of the Treasury, the Commissioner of Internal Revenue,
the Secretary of War and the President are authorized to make, by
proclamation, general language administratively effective. This
principle is also the basis for the power to fix rates by the Inter-
state Commerce Commission and public service and public utility
commissions.
Nor is there any objection to transferring such powers to the
judicial department. As Judge Cullen has pointed out in the
Saratoga Springs case, originally the power to grant divorce was
REPORT OF PORT AND HARBOR COMMISSION
153
legislative and in this State during Colonial times this power
remained purely legislative until 1787, when the State passed an
Act which, reciting that it was more advisable for the Legislature
to make general provision for such cases than to afford relief to
individuals without proper trial, jurisdiction was conferred upon
the Court of Chancery to grant divorce for adultery.
"This
transfer of power to the judiciary," says Judge Cullen (Saratoga
Springs v. Saratoga Gas Co., 191 N. Y. 123, 135), "rested solely
on legislative enactment until the Constitution of 1846." Like-
wise, from the earliest times in the history of the State, the power
to lay out and construct new roads was with the courts, although
as Judge Cullen says: "No student of government would assert
that the laying out and construction of roads is properly a judicial
function."
In Citizens' Savings Bank v. Town of Greenburgh (173 N. Y.
215), the Court considered the validity of the statute providing
for the laying out and construction of highways extending through
two or more towns upon the presentation of a petition by a free-
holder to the Supreme Court, the Supreme Court being directed,
after a hearing, to determine whether the highway was necessary
for the public welfare and convenience, it being urged that the
Act conferred non-judicial duties upon the Court. The statute
was upheld, Judge Gray saying: "The legislature is unrestricted
in its power to provide for the construction of public highways,
and, from an early date in this state, there has been legislation
devolving functions similar in effect to those imposed in this act,
which has never been held to be objectionable by this court."
Judge Gray quoted from Judge Nelson's opinion in Commis-
sioners of Highways of Warwick v. Judges of Orange County, 13
Wend. 433, wherein Judge Nelson said: "The proceeding by
appeal was not intended to be a review of legal questions, or of
irregularities that might exist in the preliminary steps, as on a
writ of certiorari; but to be an examination of the necessity or
propriety of the road, assuming all the previous steps to have been
regularly taken." The Legislature in 1797 by Chapter 64 con-
ferred upon the Courts of Common Pleas of the various counties
power to grant licenses for the keeping of ferries and to prescribe
the tolls to be charged, which power continues to this day, being
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now vested in County Courts and City Courts (Highway Law,
§§170, 171*) and, said Judge Cullen, "a member of this court,
when county judge of Erie county, granted such a license and
fixed the rates of ferriage." (Saratoga Springs case, 191 N. Y.
123, at p. 136.)
In People v. Babcock, 11 Wend. 587, the Supreme Court of the
State of New York decided that to authorize the conduct of a
ferry between that State and Canada over the Niagara river,
license must be secured from the Court of Common Pleas of the
County in which its terminus within that State was located. In
Canada Northern Railway v. International Bridge Co., 7 Fed.
Rep. 653 and 8 Fed. Rep. 190, the charter of the International
Bridge Co. contained the following provision: "All railway com-
panies desiring to use said bridge shall have and be entitled to
equal rights and privileges in the passage of the same, and in the
use of the machinery and fixtures thereof, and of all the
approaches thereto, under and upon such terms and conditions.
as shall be prescribed by the district court of the United States
for the northern district of New York, upon hearing the allega-
tions and proofs of the parties, in case they shall not agree.
Judge Wallace held that this was not a delegation of legislative
power, nor was it a conferring upon the court of non-judicial
functions. "It devolves upon this court simply the judicial func-
tions of determining the rights of parties when they may be
brought into controversy.
It is no less the exercise of
judicial functions to prescribe a rule of conduct or protect the
existence of a right during a future period, than it is to determine
whether the right has been invaded in the past. It is one of the
common offices of a court of equity to do this."
""
The duty to grant certificates of " public convenience and neces-
sity” where the consent of property owners has not been secured
to the construction of a railroad is now vested in the Supreme
Court of the State (see Railroad Law, §174). The power which
the States have to regulate commerce and navigation and to remove
obstructions to commerce and navigation (subject at all times to
the paramount federal power) may, therefore, be exerted by the
. passage of general laws and the execution of the details either by
*Should read §§ 270, 271.
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155
a municipality, a commission, a board, or a single individual;
and the power to determine whether regulation is reasonable and
a public necessity may be vested in the courts.
The Legal Basis for Interstate Action
Thus far we have confined ourselves to the consideration of the
power of each State in relation to the Federal Government to deal
with matters within its own territory and sovereignty. There is
still to be considered the extent to which and the manner by
which two States may join in the attainment of an object common
to both. First of all, as we have seen from the Stockton case (32
Fed. Rep. 9), a New York corporation may be granted power by
Congress to build a bridge across the waters intersecting New York
and New Jersey. But another method which may be employed is
the one used for the construction of the international bridge run-
ning from New York to Canada. On April 17, 1857 (Chap.
753, Laws of 1857), the State of New York, by Act of the Legis-
lature, authorized the formation of the International Bridge Com-
pany to build a bridge across the Niagara River to the American-
Canadian line. In the same year the Province of Canada author-
ized another corporation, the International Bridge Co. (of
Canada), to build a bridge across the Niagara River to the
Canadian-American line (20 Vict., Chap. 227). On May 4,
1869, by an Act of the New York Legislature (Chap. 550, Laws
of 1869), the (New York) International Bridge Company was
authorized to consolidate with the (Canadian) International
Bridge Company, and a complementary Act was passed by the
Dominion of Canada June 22, 1869. These two corporations,
one Canadian and one New York, were thus permitted to consoli-
date and amalgamate by statutes of the State of New York and
of Canada, because vested with all of the stock, property and fran-
chises of the two corporations, and were thereafter deemed to be
one corporation, to have the name provided in their agreement and
to possess all the rights and privileges, and were subject to all the
disabilities and duties of each of the corporations so consolidated.
The consolidated company became the International Bridge Com-
pany. By Chapter 176 of the Second Session of the 41st Congress
of the United States (June, 1870), the bridge was authorized to
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be constructed. The bridge was constructed and is now in opera-
tion. The validity of these grants was sustained by Wallace, J.,
at 7 Fed. Rep. 653 and 8 Fed. Rep. 190, and recently was passed
upon by the New York Court of Appeals in People v. Inter-
national Bridge Co., 223 N. Y. 137.
The Chesapeake and Ohio Canal, as originally planned, required
the action of the Legislatures of Virginia, Maryland and Penn-
sylvania, all of which united in incorporating the "Chesapeake
and Ohio Canal Company." The mutual interests of these States
could not have been carried out by the action of any one alone.
The highest court of Maryland said, "The legislature of neither
of the States, could have performed by any separate act of legis-
lation, what was proposed to be accomplished by the concurrent
acts of all. One terminus of the canal is proposed to be in the
District of Columbia, and the other in the State of Maryland; and
Virginia could not of its own authority, by any separate act,
authorize a canal to be made through Maryland, nor could Mary-
land authorize a canal to be made through Virginia, without its
consent." Yet all this was accomplished by statutory enactments
passed by each of the three States and also by the Congress of the
United States in so far as it affected the District of Columbia
(Congress in this instance acting as the Legislature for the Dis-
trict of Columbia). This case, one of the earliest in the history
of the country (1832), reported in 4 Gil. & J. (Maryland) 1,
under the title Cheasapeake & Ohio Canal Co. v. Baltimore &
Ohio Railroad Co., is clear authority for the proposition that as
a State may contract with an individual, two or more of the States
may enter into a compact or agreement inter se, and this may be
done by the complementary Acts of their respective Legislatures.
The Morris Canal, as is well known, runs from the Delaware
River in New Jersey to the Hudson River at a point opposite
New York City. In its course it passes the southern border of
New York. It required for its supply a reservoir and for that
purpose desired to take the basin of Long Pond (or Greenwood
Lake), a portion of which was within the State of New York.
In the employment of this pond by raising the water, some of the
lands around its shore would be appropriated. Could a canal
company organized under the laws of the State of New Jersey
acquire land within the State of New York for the operation of a
REPORT OF PORT AND HARBOR COMMISSION
157
canal wholly within the State of New Jersey? This was the
question in the Matter of Townsend, 39 N. Y. 171. The New
York Court of Appeals held, in language appropriate to our situ-
ation, Judge Woodruff writing the opinion: The work promoted
belongs to a class long recognized as public in its character; and
I think it was for the legislature to say whether the benefit to
result to our own citizens, and facilitating internal commerce for
the promotion of our trade or otherwise, were sufficient to call for
the exercise of the power to take private property therefor; and
that the decision of the legislature on that point is not subject to
review in this court." There was, of course, no doubt in the
case that if the canal had come within our own limits the Legis-
lature could authorize its construction and the taking of lands for
that purpose, and, said the Court, "the construction of the reser-
voir for its supply, would be no less within the power. It does
not follow, because the canal is outside the State limits, that its
construction and maintenance are not for a public use, within the
meaning of our Constitution. If it were within our limits, what
are the public benefits to result from its construction? Not merely
that our citizens may use it for transportation or travel. Providing
transportation to market and facilitating intercommunication are
some of the public purposes of such improvements; but communi-
cation between our chief cities and the productive regions which
lie outside our State, and intercourse with those who dwell there,
are as truly objects of public interest and advantage as between
two sections of the State itself. Besides, the court cannot say
that the Morris canal does not run within the reach of a portion
of our own citizens, and directly aid them in the conduct of their
intercourse with our eastern border, or the counties along the
Hudson river to which it runs.'
"" This would seem to be clear
authority for the exercise of State power in the development of
port facilities, the purpose of which is "providing transporta-
tion," "facilitating intercommunication" and "communication
between our chief cities and the productive regions which lie
outside our State." Especially would this be true if, by solemn
treaty, the two States were to engage in the common enterprise.
In the leading case of State of Virginia v. State of Tennessee,
148 U. S. 503, at p. 518, the United States Supreme Court
observed that "there are many matters upon which different
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REPORT OF PORT AND HARBOR COMMISSION
States may agree that can in no respect concern the United States.
If, for instance, Virginia should come into possession and owner-
ship of a small parcel of land in New York which the latter State
might desire to acquire as a site for a public building, it would
hardly be deemed essential for the latter State to obtain the con-
sent of Congress before it could make a valid agreement with
Virginia for the purchase of the land. If Massachusetts, in for-
warding its exhibits to the World's Fair at Chicago, should desire
to transport them a part of the distance over the Erie Canal, it
would hardly be deemed essential for that State to obtain the
consent of Congress before it could contract with New York for
the transportation of the exhibits through that State in that way.
If the bordering line of two States should cross some malarious
and disease-producing district, there could be no possible reason,
on any conceivable public grounds, to obtain the consent of Con-
gress for the bordering States to agree to unite in draining the
district, and thus removing the cause of disease. So in case of
threatened invasion of cholera, plague, or other causes of sick-
ness and death, it would be the height of absurdity to hold that
the threatened States could not unite in providing means to pre-
vent and repel the invasion of the pestilence, without obtaining
the consent of Congress, which might not be at the time in
session."
A recent example of the co-operation between two States is to
be found in the creation of the Palisades Interstate Park Com-
mission. By Acts of the two legislatures (Chapter 170, Laws of
1900, New York, p. 380, and Chapter 87, Laws of 1900, New
Jersey, p. 163), there were created two separate State Commis-
sions, each "a body politic with power to sue and to be sued,"
each appointing its own officers authorized to acquire, maintain
and make available for use as a public park certain lands along
the Palisades. Within its State each Commission is supreme,
but, like the present Port and Harbor Development Commission,
the two Commissions sit in common session and engage in a joint
undertaking.
>
Randolph, in his Law of Eminent Domain, § 29, believes that
the observations of the Supreme Court in Virginia v. Tennessee
contemplate that an undertaking considered as a whole may be of
2
REPORT OF Port and HARBOR COMMISSION
159
public use common to two States, so that "joint and interdepend-
ent grants of the eminent domain may cure deficiences incident
to independent grants." In two articles in the Columbia Law
Review for May and June, 1902, this author expresses the view
that two States may combine to secure more equitable enjoyment
in a common interest in water than is obtainable by independent
action, and for that purpose he suggests, to meet the decision in
Kansas v. Colorado (which involved an interstate controversy
over the diversion of water for irrigation purposes), that the
States and Territories interested create, by compact, a public
corporation for the promotion of irrigation, which corporation
should be charged with the planning, construction and main-
tenance of a comprehensive system and with the general appor-
tionment of water among the several States parties to the compact,
the powers of the corporation to depend upon the compact and
upon such ancillary federal and state legislation as might be
advisable.
In an opinion by the same author upon the obtaining of a water
supply for the State of New York, he urged the making of a com-
pact between the States of New Jersey and New York as a means
for securing an interstate water supply. (See his opinion, Ran-
dolph Legal Pamphlets, 1888-1915, Library of the Association of
the Bar of the City of New York.)
But as we have already seen, the States of New York and New
Jersey have already done business with each other. The Treaty of
1834 furnishes at once an historical precedent and a classical
example for us to follow. For our present purposes, however, it
is defective and inadequate in many respects. Take, for example,
so simple a matter as the regulation of the rates of ferriage where,
Congress not having acted, the two States are still free to act.
In the New York Central case (74 N. J. L. 367), Justices Hen-
drickson, Swayze and Trenchard, Judge Swayze writing the
opinion, said (p. 375): "By the treaty between New York and
New Jersey (Gen. Stat. p. 3464) New York is given exclusive
jurisdiction over the waters of the Hudson river to the low-water
mark on the New Jersey shore, subject to the right of property
of New Jersey to the land under water west of the middle of the
river, and to the exclusive jurisdiction of New Jersey over the
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REPORT OF PORT AND HARBOR COMMISSION
wharves, docks and improvements on its shore, and all vessels
aground on that shore or fastened to such wharves or docks, and
subject to the exclusive right of New Jersey to regulate the fish-
eries on the westerly side of the river. Even these reserved rights
of New Jersey are further qualified by a provision that they shall
be subject to the laws of the State of New York in relation to
passengers, and that navigation be not obstructed or hindered.
The limitation of New Jersey's jurisdiction to vessels aground
on its shore, or fastened to wharves or docks, and the express
reservation by which even those vessels are subject to the laws of
New York in relation to passengers, are a plain indication that
New Jersey has no control over vessels actually in transit across
the river, and the rates to be charged for transportation of pas-
sengers thereon." This case went up to the Court of Errors and
Appeals of New Jersey and is reported in 76 N. J. L. 664. The
opinion of the lower court was there reversed and the highest court
of New Jersey (Judge Reed writing the opinion) said (p. 682):
"It would seem, however, that whether the jurisdiction of the
State of New York runs to the middle of the Hudson river or to
the New Jersey shore, it would not effect the question now
involved. The ferry-house is within the jurisdiction of New
Jersey, and it is the right of the state to regulate the charges
which the keeper of such ferry-house may impose for transporta-
tion to New York that is involved. Now, whether the transporta-
tion is partly or wholly over waters of the State of New York
seems to be immaterial, for in the one case, as in the other, the
transportation would be interstate commerce.
"But apart from this, it is to be observed that the agreement
entered into between the commissioners was ratified by the legisla-
ture of New Jersey in 1834. It had been in existence, therefore,
nearly twenty years when the case of State v. Chosen Freeholders
of Hudson County, supra, was decided, although this point was
not noticed by either counsel or court in that case. We would
hardly, on that ground, disturb a decision so well considered which
has stood for over half a century upon a new view of the effect of
conditions which then existed."
The decision of the Court of Errors and Appeals in this case
came up before the United States Supreme Court, and the United
REPORT OF PORT AND HARBOR COMMISSION
161
States Supreme Court reversed the Court of Errors and Appeals,
sustaining the Supreme Court of New Jersey (see 227 U. S. 248),
the United States Supreme Court, however, resting its decision
upon the ground that the operation of the ferry (the Weehawken
Ferry) constituted interstate commerce. (See supra, p. 102.)
In the Port Richmond Ferry case, 234 U. S. 317, as we have
already seen (see supra, p. 101), Mr. Justice Hughes held, (dis-
tinguishing the Weehawken Ferry case, on the ground that it was
not a ferry operated in connection with any railroad), that each
State, at the ferry-house situated within its State, could regulate
the charges and tolls. "If the State may exercise this power, it
necessarily follows that it may not, in its exercise, derogate from
the similar authority of another State. The state power can
extend only to the transactions within its own territory and the
ferriage from its own shore. It follows that the fact that rates
were fixed by New York did not preclude New Jersey from estab-
lishing reasonable rates with respect to the ferry establishment
maintained on its side." In this case, the point with regard to
the New York-New Jersey Treaty of 1834 was neither presented
nor considered by the Court.
The question, therefore, is either still unsettled and subject to
debate (which seems to us to be the better opinion) or each State
is still free to make regulations with regard to ferriage tolls on
its own side. It may be desirable to construct between the two
States many bridges and many tunnels, some of which or some
part of the operation of which may be founded upon legal prin-
ciples identical with those in the Port Richmond Ferry case.
Such opportunities for the development of friction should be fore-
closed. Problems of this character shauld be committed to a
single Port Authority representative of both States and co-operat-
ing in the development of the larger port.
The Treaty-Making Power of the States and What May Be
Done Under It
The Federal Constitution provides that "no State shall, without
the consent of Congress, lay any duty of tonnage, keep troops or
ships of war in time of peace, enter into any agreement or com-
pact with another State, or with a foreign power, or engage in
6
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REPORT OF PORT AND HARBOR COMMISSION
war, unless actually invaded, or in such immediate danger as will
not admit of delay." We have already seen that the United
States Supreme Court held that this provision does not apply to
those matters which do not concern the United States. Even the
establishment of a boundary line between States the most
familiar and most frequent raison d'etre of treaties between
States may not require the approval of Congress. Says the
United States Supreme Court in Virginia v. Tennessee, 148 U. S.
503, 520: "The compact or agreement will then be within the
prohibition of the Constitution or without it, according as the
establishment of the boundary line may lead or not to the increase
of the political power or influence of the States affected, and thus
encroach or not upon the full and free exercise of Federal
authority. If the boundary established is so run as to cut off an
important and valuable portion of a State, the political power of
the State enlarged would be affected by the settlement of the
boundary; and to an agreement for the running of such a bound-
ary, or rather for its adoption afterwards, the consent of Congress
may well be required. But the running of a boundary may have
no effect upon the political influence of either State; it may sim-
ply serve to mark and define that which actually existed before,
but was undefined and unmarked. In that case the agreement
for the running of the line, or its actual survey, would in no
respect displace the relation of either of the States to the general
government." If the compact or agreement between the States
does not affect the political power of either, it would seem, there-
fore, as though approval by Congress were unnecessary. The
treaty between New York and New Jersey of 1834, however, was
approved by Congress. That treaty did seriously affect the politi-
cal relations of the two States, and as we have seen (supra, p. 74
et seq.) settled and disposed of a matter that had been the sub-
ject of serious controversy between the two States. It is probable
that, in any event, the farsighted lawyers of that day would have
recommended the approval of the treaty by Congress in order to
avoid any possible question concerning its validity. So in pro-
posing an amendment or supplement to the 1834 treaty, it would
seem to be the wiser policy to secure ratification and approval by
Congress. The points at which the federal power crosses the State
REPORT OF PORT AND HARBOR COMMISSION
163
power, the difficulty of always distinguishing between what is a
State function and what is a federal function - all of which has
been already discussed would seem to point to the practical
wisdom of securing in advance of action ratification of the treaty
by Congress. (The time when such a treaty may be ratified and
whether by express action or by acquiesence is fully discussed in
Virginia v. Tennessee, 148 U. S. 503, at p. 521.) Of course, the
two States could deal with the port problem as they have dealt
with the Palisades Park problem, that is to say, each State could
act within its own jurisdiction through a separate commission
which would co-operate with a similar commission created by the
other State. Each of the two commissions could be a body corpo-
rate, as well as politic, and could receive power to hold real estate
and to operate port utilities. Such a piece of machinery would
be cumbersome, slow in operation, and likely to be ineffective at
many points. But plans for port development have been so long
delayed and the great war has so imperatively made prompt
action necessary, that the most effective agency that can be created
should now be devised and put into action as quickly as possible.
A single Port Authority, deriving powers from the two States, a
body corporate and politic, capable also of performing duties
that may be assigned to it by any of the branches of the Federal
Government, would seem to be the logical instrumentality. But
each State is a sovereign in its own territory and the port lies in
the territory of both. Adequate power in such a single Port
Authority, similar to the power invested in Port Authorities at
London, Liverpool, Hamburg, New Orleans, Montreal, etc., etc.,
in our situation will involve some yielding upon the part of each
State of its supreme and complete sovereignty. To what extent
may a State or Nation, retaining its general sovereignty, grant
power to another State to deal with property located within the
territorial bounds governed by the former? We may assume at
the outset that every State, like every nation, will reluctantly
yield of its sovereign power, though, in our situation, the fact
that the obligations will be equal, mutual and reciprocal may make
the problem easier. This branch of the subject is perhaps the
most difficult, though at the same time the most interesting of the
subjects with which we must deal. It takes us into fields which
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REPORT OF PORT AND HARBOR COMMISSION
lawyers do not customarily enter. However, when such a Port
Authority comes to take title to property, or conveys title, or
borrows money, or issues orders, it will need to rest its action upon.
firm and well settled principles of law. It will be profitable,
therefore, to consider this branch of the problem fully and place
where it is accessible the legal theory and the precedents upon
which we may rely.
If a State may alienate a part of its territory in perpetuity to
an individual, it may, of course, alienate to another State. This
is the theory underlying all boundary treaties. Each State grants
and conveys to the other or releases, as the case may be — all its
right, title and interest in the property on the other side of the
boundary. "It is too late in the history of the United States,"
says Judge Brewer in Wilson v. Shaw, 204 U. S. 24, 32, "to
question the right of acquiring territory by treaty." But we are
not to change in any respect the boundary lines between New
York and New Jersey as settled by the Treaty of 1834. We are
simply to vest sovereign authority within a certain portion of
territory in both States, and such sovereign authority only to a
limited degree, sufficient to accomplish the main purpose. This
is already done in the Treaty of 1834. Though, of course, no
State in the Union may act beyond the scope of its own Constitu-
tion nor infringe any of the provisions of the Federal Constitu-
tion, within these limitations it is free and acts with the power of
any sovereign State. In Brien v. West Elliott, 2 Penrose & Watts
(Pa.) 49, 61, Gibson, C. J., speaking for the Court, says:
the power of the two states to regulate questions of
title to the soil, even at the expense of rights previously vested
under either, [is] not now to be questioned. The compact is
necessarily founded in an assumption of it. There was no con-
stitutional limitation on either side; and the parties acting in the
capacity of sovereigns, were fettered by no rule but their sense of
expediency and justice. The consideration was the compromise
of an international dispute.
." Under the Treaty of 1780
66
between Pennsylvania and Virginia, the title to land conveyed
thereby would go one way under the decisions of the Virginia
court, while under the decisions of the Pennsylvania court it
would go another. In Marlatt v. Silk, 36 U. S. (11 Pet.) 1, 9
5
REPORT OF PORT AND HARBOR COMMISSION
165
L. ed. 609, the United States Supreme Court, Barbour, J., writ-
ing the prevailing opinion, held that the decisions of the State
courts are looked to to ascertain what the law is where the con-
troversy is between private parties arising under a compact made
in or by one State, "whereas in the case at bar, the question
arises under, and is to be decided by, a compact between two
states: where therefore the rule of decision is not to be collected
from the decisions of either state, but is one, if we may so speak,
of an international character."
So, too, in Iowa v. Illinois, 147 U. S. 1, 37 L. ed. 55, 13 Sup.
Ct. Rep. 239, where the dispute arose over the boundary line
between Illinois and Iowa, the contention of each State was sup-
ported by a decision of its court of last resort. The United
States Supreme Court recognized these decisions as presenting in
the clearest terms the conflicting view as to the line of jurisdiction
between two neighboring States bounded by a navigable stream,
but proceeded to a determination of the rights of the two States
based upon a careful study and review of the authorities on
international law, in this instance finding that the term "middle
of the stream," as established in international law and by the
usage of European nations, meant the middle of the channel of
such streams.
International law and international precedent, therefore, must
be examined for the purpose of determining the effect of such a
treaty as we have under consideration.
Servitudes
Two owners of adjoining farm lands require access across both
for the full development of the farms of both. To confirm this
access they draw a deed or instrument by which the rights are
established. The thing created in law is called an "easement,"
and the burden imposed upon the land which is to serve the ease-
ment is called a "servitude;" each piece of property serves the
other.
In urban real estate there is a very common illustration. Two
owners of lots adjoining each other intend to erect separate build-
ings. Ordinarily, each would erect a separate wall at or near the
line of intersection. Where land is expensive, what more natural
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REPORT OF PORT AND HARBOR COMMISSION
"Let us erect a wall
than for one owner to say to the other:
which will serve both buildings and which will be common to us
both?" This is what is called a "party wall," and an agreement
of this character is called "a party wall agreement." Each piece
of property is the beneficiary of a servitude assumed by the other.
In Roman law "the one piece of land was said to serve the other."
(Imperatores Justiniani Institutiones, 2 ed., p. 26, note.) Sir
Robert Phillimore, in his "International Law," Vol. 1, 3d ed.,
1879, says: "In the language of Jurisprudence, when a thing is
subject to the exercise of a right by a person who is not the master
or proprietor it is said to serve (res servit) or yield service to that
other person." This doctrine of Servitus plays an important part
in Roman law, and in some shape and under some appellation or
other is to be found in the jurisprudence of all nations. The
obligation to service "constitutes a right in the obligee or the per-
son to whom it is due, and it ranks among the jura in re,' while
it operates as a diminution and limitation of the right of the pro-
prietor to the exclusive and full enjoyment (libertas rei) of his
property." Under Roman law the servitudes consisted either in
not doing something (in non faciendo) and was negative (servitus
negativa), or in suffering something to be done (in patiendo) and
was affirmative (servitus affirmativa). Where the owner of a
thing assumed the obligation to do something (in faciendo), in
relation to that thing for the benefit of another, this obligation
assumed a technically different character and was not regarded as
a jus in re. "But (as Bluntschli warns us)," says Sir Edward
S. Creasy (Creasy: The First Platform of International Law,
1876, §256), “much caution is requisite in applying to interna-
tional law the doctrines of the Roman law as to prædial servitudes,
urban servitudes, rustic servitudes, and other forensic distinc-
tions." Nevertheless, the principles of "international servitude"
are fairly well established and history presents many applications
of them.
Probably nowhere in the history of international law has the
subject received fuller examination and study than in the North
Atlantic Coast Fisheries Arbitration before the Hague Tribunal of
Arbitration. In the twelve or thirteen volumes forming the record
of this case will be found the expressions upon the subject of nearly
REPORT OF PORT AND HARBOR COMMISSION
167
every international writer and of all the great international law-
yers. English translations of extracts from works of Argentinian,
Austrian, Belgian, French, German, Italian, Russian, Spanish
and Swiss publicists, together with extracts from the works of
British and American publicists, were compiled by James Brown
Scott for use before the Hague Tribunal. This volume, called
"International Servitudes," printed by the Government Printing
Office in 1910, is undoubtedly the most valuable collection of
authorities on the subject. (Through the courtesy of Ex-Senator
Elihu Root, of counsel for the United States, and Hon. Chandler
P. Anderson, the attorney for the United States in the Fisheries
Arbitration, a copy of this volume has been made a part of the
library of our Commission.)
Sir Robert Phillimore once said (Vol. 9, Proceedings before the
Hague Tribunal, North Atlantic Coast Fisheries Arbitration, 569
(338): "In the memorable answer, pronounced by Montesquieu
to be response sans réplique, and framed by Lord Mansfield and
Sir George Lee, of the British to the Prussian Government,
“‹ The law of nations is said to be founded upon justice, equity,
convenience, and the reason of the thing, and confirmed by long
usage.
"It is more especially to this usage, as evidencing the consent
of nations, that great judges, such, among others, as Lord Stowell
and Chancellor Kent, and great jurists of all countries, have con-
tinually referred."
:(
From the wealth of learning contained in the volume to which
we have referred, we take the following (Vol. 1, Sir Robert Philli-
more's International Law," 3rd ed., 1879, §277): "The prop-
erty of a state may not only be alienated, but may also be subjected
to obligations and services in favor of another state; as the prop
erty of an individual may be burdened and encumbered in favor
of another individual."
$279: "States are sometimes placed in such physical relations
to each other that some limitations of the abstract rights of each
necessarily flow from their natural relations, or from the reason of
the thing. Thus a state is bound to receive the waters which nat
urally flow within its boundaries from a conterminous State. This
obligation belongs to the class of servitutes juris gentium nat-
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REPORT OF PORT AND HARBOR COMMISSION
urales,' and here the provisions of the Digest and Institutes may
be said to be identical with those of International Law."
$280: "A State may voluntarily subject herself to obligations
in favor of another state, both with respect to persons and things,
which would not naturally be binding upon her. These are 'servi-
tutes juris gentium voluntariæ.·
Hannis Taylor, in "A Treatise on International Public Law,"
8217, says: "A state may limit or qualify its sovereignty and
jurisdiction over its territorial property by permitting a foreign
state to perform within its bounds certain acts otherwise pro-
hibited; or by surrendering the right to exercise certain parts of
its domestic jurisdiction as a protection to others. Restrictions
thus imposed upon the sovereignty of a state are known as servi-
tudes, which may be either positive or negative."
Dr. L. Oppenheim, "International Law," $205: "Since the
territory of a state includes not only the land, but also the rivers
which water the land, the maritime belt, the territorial subsoil, and
the territorial atmosphere, all these can, as well as the service of
the land itself, be an object of state servitudes. Thus a state may
have a perpetual right of admittance for its subjects to the fishery
in the maritime belt of another state, or a right to lay telegraph
cables through a foreign maritime belt, or a right to build and use
a tunnel through a boundary mountain, and the like. And should
ever aerostation become so developed as to be of practical utility, a
state servitude might be created through a state acquiring a per-
petual right to send military aerial vehicles through the territorial
atmosphere of a neighboring state.”
Senator Root, in his argument before the Hague Tribunal (see
Volume 11, p. 1285), after reading from Bluntschli, Bonfils,
Calvo, Chrétien, Clauss, Despagnet, Diena, Fabre, Fiore, Hall,
Hartmann, Heffter, Heilborn, Hollatz, Holtzendorff, Klüber, Lom-
onaco, G. F. de Martens, Neumann, H. B. Oppenheim, L. Oppen-
heim, Phillimore, Rivier, Ullmann, at p. 1287 (2129) culls as a
well-settled principle the following: "Since anybody can grant
any right he chooses to a third party concerning his thing, so has
each nation a right to grant another nation a certain right in its
territory.
It belongs even to the mutual duties of
REPORT OF PORT AND HARBOR COMMISSION
169
nations for the one to create certain rights in his territory for the
advantage of the other, in so far as no abuse of the territory takes
place."
The North Atlantic Coast Fisheries Case
In the argument before the Hague Tribunal, George Turner,
one of the counsel for the United States Vol. 9, North Atlantic
Coast Fisheries Arbitration, 564 (335), said: "When one nation
grants to another certain rights to be exercised within its territorial
limits, rights which possess the attributes and qualities of a servi-
tude by the municipal law, it creates a relation between itself and
the other nation which is analogous to the relation which exists
between the owners of the dominant estate and the servient estate
by the municipal law, in view of the fact that the sovereignty
which nations possess, under the conception of to-day, constitutes
a species of higher ownership, which the nations may contract
about, or may burden or may dispose of, in whole or in part, at
their will and their pleasure. When such a grant is made by one
nation to another, to be exercised within its territories by the
other, a right to resort to the territory and to employ the terri-
tory for profit, which right is a perpetual right, and is strictly a
national right, we have, in fact, every one of the concepts, every
one of the qualities, every one of the attributes of the servitude
as it was known to the Roman law."
The controversy before the Hague Tribunal in the Fisheries
Arbitration presented a number of interesting questions. The one
with which we are concerned, however, called for an interpreta-
tion of the fisheries provision of the Treaty of 1818 and arose out
of the clause of the treaty which provided that "the inhabitants
of the United States shall have forever, in common with the sub-
jects of His Britannic Majesty, the liberty to take fish of every
kind" on the so-called treaty coast. “The British contention,”
says Mr. Anderson (Chandler P. Anderson: The Final Outcome
of the Fisheries Arbitration The American Journal of Inter-
national Law, January, 1913), "rested on the argument that the
words 'in common with the subjects of His Britannic Majesty'
ment that American fishermen should be on exactly the same
footing as local fishermen in British waters, and therefore sub-
ject to the same governmental control exercised by Great Britain
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REPORT OF PORT AND HARBOR COMMISSION
and her Colonies over British subjects. The United States, on the
other hand, showed by the negotiations resulting in that treaty,
as well as by means of the antecedent French fishing treaty
rights on the Newfoundland coast, that the words 'in common.
were used to negative the implication, which otherwise would have
arisen, that American fishermen were to have an exclusive right of
fishing. The United States further maintained that, instead of
subjecting American fishermen to local regulations, the effect of
the treaty was either to establish a fishery common to both nations,
in which the United States had an equal interest with Great
Britain, thus creating an international servitude depriving Great
Britain of a portion of her sovereignty in the treaty waters, or
else, in the alternative, that the treaty must be regarded as impos-
ing upon Great Britain a contractual obligation limiting the exer-
cise of British sovereignty in treaty waters, to the extent that the
prerequisite of reasonableness must be determined before regula-
tions could be enforced against American fishermen, and that
neither Great Britain nor her Colonies could be the sole judge of
the question of reasonableness."
In his dispatch to the United States Ambassador in London,
Secretary Root said: "The treaty of 1818 either declared or
granted a perpetual right to the inhabitants of the United States,
which is beyond the sovereign power of England to destroy or
change. It is conceded that this right is, and for ever must be,
superior to any inconsistent exercise of sovereignty within that
territory. The existence of this right is a qualification of British
sovereignty within that territory." (Vol. 4, North Atlantic Coast
Fisheries Case, Brief for Great Britain, pp. 18, 19.) In the
memorable communications between Lord Salisbury and Secretary
Evarts (Ibid. 29, 30, 31), Lord Salisbury said: "
Majesty's Government will readily admit — what is, indeed, self-
evident that British sovereignty, as regards those waters, is
limited in its scope by the engagements of the Treaty of Wash-
ington, which cannot be modified or affected by any municipal
legislation. I cannot anticipate that with regard to these prin-
ciples any difference will be found to exist between the views of
the two Governments." Mr. Evarts replied (1879) that he had
nowhere taken any position larger or broader than that stated
by Lord Salisbury in the quotation just made. "I have never
-
Her
REPORT OF PORT AND HARBOR COMMISSION
171
denied the full authority and jurisdiction either of the Impérial
or colonial Governments over their territorial waters, except so
far as by Treaty that authority and jurisdiction have been deliber-
ately limited by these Governments themselves."
Sir W. Robson, of counsel for Great Britain before the Trib-
unal (see discussion, Vol. 11 (1011), 1674 et seq.), in a most
enlightening colloquy with Dr. Drago of the Hague Tribunal,
stated that "a State may make, for instance, with regard to a
railway, a contract with another State, giving that other State
any rights it pleases over its own territory, for the purposes of the
railway
(1674) (1012). It is to the good of mankind,
to the good of individual States, and to the good of the whole
civilized community, that each State should be encouraged to
open its territory to other States, either for economic purposes, or
for purposes of general beneficial intercourse. I say they may do
it, and I say that the existing international law allows them to do
it, without danger. They may do it as sovereigns. They may
put their territory, as sovereigns, under all kinds of obligations
of the kind which we have heard called real obligations. They
may say: "You may come to our territory and fish, or build
railways, or build warehouses. You may do all these things.'
I say that those are highly meritorious grants to make; that they
must be made, and they are made, without any consequence what-
ever of a character derogating from the sovereignty of the States.
That is my case.
"So that I accept the suggestion of the learned arbitrator that
such contracts can be made. I say they can be made, and ought to
be encouraged. No State ought to be deterred from limiting the
exercise of its own sovereignty in any of these respects. It ought
not to be deterred from doing it." In other words, the great law-
yers representing England did not dispute the power of two states
to join in a treaty limiting the exercise of their sovereignty in
these respects, but confined the argument to the consideration of
whether, in fact, they had done so with regard to the fisheries.
Sir W. Robson laid stress upon the importance of the Hague
Tribunal" in dealing with this great question, so framing its judg
ment as not to allow of any discouragement to States in making
obligations inter se, which may open the territory of one to the
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REPORT OF PORT AND HARBOR COMMISSION
inhabitants of another without any detriment to the sovereignty of
either. That, I think, is the thing we should all aim at. And my
own belief is that international law, as it is now constituted, does
that. International law, when it is thoroughly considered, as it
stands today, does allow a State to open its territory freely, to
limit the exercise of its own sovereign rights in certain particulars,
without any detriment to its other sovereign rights or its general
national sovereignty." Again, in the colloquy with Sir Charles
Fitzpatrick: "States may do what they like with regard to
their property. In so far as they are owners, they may subject.
their property to any obligation that they please. I say they
may do it without any danger to their sovereignty. That is to say,
they put what obligations they like upon themselves as lords of
the land. A State may submit its dominium to these rights, with-
out any derogation from its imperium
Sir Charles
Fitzpatrick said: "Your contention, briefly, is that a State may
part with a share of the public domain, either in favour of a citi-
zen of that State, in favour of the citizen of a foreign country, or
in favour of the Government of a foreign country?" Sir W.
It is the essential difference between
dominium and imperium, which, as one of the learned arbitrators
has just pointed out, has to be considered.
That general
sovereignty is a thing wholly apart and not affected by the grant
of particular territorial rights, as the United States say it is
affected."
(C
Robson: Yes.
""
Indeed, we may say that the framers of the treaty between New
York and New Jersey of 1834 had clearly in mind this distinction
between the preservation of general sovereignty and governmental
functions and the grant of title to land, the distinctions between
the title to the land under water, which, in the case of New Jersey,
extends to the middle of the stream, and the exercise of govern-
mental police power, which is granted to one State even to the
shores of the other.
In its decision, the Hague Tribunal did not support the extreme
contention of our Government that Great Britain had transferred
to the United States sovereign rights in the treaty waters, but
equally to the satisfaction of the United States" (as Mr. Ander-
son says in his article, "The Final Outcome of the Fisheries
66
REPORT OF PORT AND HARBOR COMMISSION
173
Question"), it decided that though Great Britain retained its
sovereignty intact, it had nevertheless imposed a limitation upon
the exercise of this sovereignty, that is to say, it was an implied
condition of the treaty that whatever regulations were adopted by
Great Britain covering the exercise of fishery rights, these regu-
lations must be reasonable. The treaty, said the Tribunal, limited
the inherent sovereign rights of Great Britain to regulate the
liberty to take fish in and about Newfoundland "in respect of the
said liberties therein granted to the inhabitants of the United
States in that such regulations must be made bona fide and must
not be in violation of the said Treaty." Accordingly, in case of
any disputes as to the reasonableness of such regulations, enforce-
ment of them against American fishermen must be suspended
until they were passed upon by an impartial tribunal and held by
such tribunal to be reasonable. The rules and methods of pro-
cedure which should be adopted by the two Governments to carry
out this decision were embodied in the award and subsequently
took shape in a treaty, adopting with minor modifications the rules
and methods of procedure thus recommended. This treaty was
signed at Washington on July 20, 1912, and appears in full in
the compilation of addresses and papers of Ex-Senator Elihu
Root under the title "North Atlantic Coast Fisheries Arbitra-
tion" (Harvard Univ. Press, 1917 - Edited by Robert Bacon
and James Brown Scott). The method, briefly stated, requires
the British Government, when adopting regulations, to publish
them in designated newspapers for a certain period of time before
they become effective, and provides that they shall not become
effective with respect to the inhabitants of the United States
"until the Permanent Mixed Fishery Commission has decided
that the regulation is reasonable within the meaning of this
award." After the publication of these regulations, the United
States may convoke the Permanent Mixed Fishery Commission
for the purpose of passing upon the regulations. If it shall fail,
however, so to do, the regulations become effective. The Per-
manent Mixed Fishery Commission is made up of experts selected
by both nations.
Here, then, is a clear recognition on the part of English and
American lawyers, as well as a decision by the highest inter-
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REPORT OF PORT AND HARBOR COMMISSION
national court, to the effect that sovereign states may engage in
the regulation of commercial privileges in territorial waters with-
out surrendering general sovereignty, and may, for the purpose
of administering such regulations or of determining their reason-
ableness, create a joint tribunal with final and supreme authority
in the premises.
The Panama Canal
Recently, the United States Government entered the cities of
Panama and Colon for the purpose of maintaining order and pre-
serving health and taking certain necessary sanitary precautions.
These two cities are under the sovereignty of the Government of
Panama. The authority under which the United States Govern-
ment acted was the treaty with the Government of Panama. This
treaty is in itself but another application of the principles under
discussion, not only with reference to our dealings with the Gov-
ernment of Panama, but also with reference to our dealings with
England. Again, the repeal of the Panama Canal tolls provision
in the Hay-Pauncefote Treaty furnishes a most instructive chapter
in the modern history of our Government, considered by many
statesmen to be one of the most honorable chapters in the
diplomacy of our country. This controversy presented the single
question of the obligations that we had assumed towards the gov-
ernments of other countries, especially that of Great Britain, in
the building and operation of the Canal. On the 5th of March,
1914, President Wilson urged the passage by Congress of the bill
for the repeal of the tolls exemption in favor of the United States
upon the ground that our country had assumed treaty obligations
toward Great Britain which made exemption of tolls in our own
favor a breach of international duty. Legal title of the United
States to the Canal Zone was conceded. The sole issue was
whether or not the title was subject to an obligation in the nature
of a trust.
In his memorable address to the Senate on January 21, 1913,
Senator Root said concerning our obligations to Great Britain:
"So, Mr. President, far from our being relieved of the obligations
of the treaty with Great Britain by reason of the title that we
have obtained to the Canal Zone, we have taken that title impressed
with a solemn trust. We have taken it for no purpose except the
REPORT OF PORT AND HARBOR COMMISSION
175
construction and maintenance of a canal in accordance with all the
stipulations of our treaty with Great Britain. We cannot be false
to those stipulations without adding to the breach of contract a
breach of the trust which we have assumed, according to our own
declarations, for the benefit of mankind, as the mandatory of civil-
ization." In other words, absolute sovereignty and control over
the Panama territory was vested in the United States, yet was
subject to a sacred trust in favor of Great Britain. Senator Root
(in the same volume, Addresses on International Subjects), dis-
cussing "The Ethics of the Panama Question," traces the history
of all the treaties bearing upon the subject and the relations
between the various governments. The treaty of December 12,
1846, between the United States and New Granada (p. 182)
provided: "The Government of New Granada guarantees to the
Government of the United States that the right of way or transit.
across the Isthmus of Panama upon any modes of communication
that now exist, or that may be hereafter constructed, shall be open
and free to the Government and citizens of the United States.
And in order to secure to themselves the tranquil and
constant enjoyment of these advantages, and as an especial com-
pensation for the said advantages and for the favors they have
acquired by the fourth, fifth, and sixth articles of this treaty, the
United States guarantee positively and efficaciously to New
Granada by the present stipulation the perfect neutrality of the
before-mentioned Isthmus with the view that the free transit from
the one to the other sea may not be interrupted or embarrassed in
any future time while this treaty exists, and in consequence the
United States also guarantee in the same manner the rights of
sovereignty and property which New Granada has and possesses
over the said territory." Senator Root, commenting upon this,
said (p. 183): "You will perceive that in this transaction New
Granada recognized the subordination of her sovereignty to the
world's easement of passage by railroad or by canal, and appre-
hending that other nations might seek to exercise that right
through the destruction of her sovereignty and the appropriation
of her territory, she procured the United States to assume the
responsibility of protecting her against such treatment."
The preamble of the Hay-Pauncefote Treaty of December 16,
1901, recites that the two parties "being desirous to facilitate the
176
REPORT OF PORT AND HARBOR COMMISSION
construction of a ship canal
by whatever route may be
considered expedient, and to that end to remove any objection
which may arise out of the Convention of the 19th April, 1850,
commonly called the Clayton-Bulwer treaty, to the construction
of such canal under the auspices of the Government of the United
States, without impairing the 'general principle' of neutraliza-
tion established in Article VIII of that Convention" have for
this purpose appointed plenipotentiaries, etc. Article 2 gave our
nation the exclusive privilege to buy the right of way and to own.
it and to build the canal. Article 3 gave rights to protect and
govern the great waterway. But Article 4 provided that no
change of territorial sovereignty or of international relations of
the country or the countries traversed by the canal shall affect
the present principle of "neutralization" or the obligations under
the present treaty.
Turning now to the international relations between the United
States and Panama established by the Hay-Bunau-Varilla treaty
of February 23, 1904, we find that the United States secured the
grant of lands and the franchise to build and operate a canal
across Panama from ocean to ocean. By Article I, “the United
States guarantees and will maintain the independence of the
Republic of Panama." By Article II, "the Republic of Panama
grants to the United States in perpetuity the use, occupation and
control of a zone of land and land under water for the construc-
tion, maintenance, operation, sanitation and protection of said
Canal of the width of ten miles extending to the distance of five
miles on each side of the center line of the route of the Canal to
be constructed; the said zone beginning in the Caribbean Sea three
miles from mean low water mark and extending to and across the
Isthmus of Panama into the Pacific Ocean to a distance of three
marine miles from mean low water mark with the proviso that
the cities of Panama and Colon and the harbors adjacent to said
cities, which are included within the boundaries of the zone above
described, shall not be included within this grant. The Republic
of Panama further grants to the United States in perpetuity the
use, occupation and control of any other lands and waters outside
of the zone above described which may be necessary and con-
venient for the construction, maintenance, operation, sanitation
REPORT OF PORT AND HARBOR COMMISSION
177
and protection of the said Canal or of any auxiliary canals or
other works necessary and convenient for the construction, main-
tenance, operation, sanitation and protection of the said
enterprise.
"Article III. The Republic of Panama grants to the United
States all the rights, power and authority within the zone men-
tioned and described in Article II of this agreement and within
the limits of all auxiliary lands and waters mentioned and
described in said Article II which the United States would
possess and exercise if it were the sovereign of the territory within
which said lands and waters are located to the entire exclusion
of the exercise by the Republic of Panama of any such sovereign
rights, power or authority."
"Article VII. The Republic of Panama grants to the United
States within the limits of the cities of Panama and Colon and
their adjacent harbors and within the territory adjacent thereto
the right to acquire by purchase or by the exercise of the right of
eminent domain, any lands, buildings, water rights or other prop
erties necessary and convenient for the construction, maintenance,
operation and protection of the Canal and of any works of sani-
tation, such as the collection and disposition of sewage and the
distribution of water in the said cities of Panama and Colon,
which, in the discretion of the United States may be necessary
and convenient for the construction, maintenance, operation, sani-
tation and protection of the said Canal and railroad. All such
works of sanitation, collection and disposition of sewage and dis-
tribution of water in the cities of Panama and Colon shall be
made at the expense of the United States, and the Government
of the United States, its agents or nominees shall be authorized to
impose and collect water rates and sewage rates which shall be
sufficient to provide for the payment of interest and the amortiza-
tion of the principal of the cost of said works within a period of
fifty years and upon the expiration of said term of fifty years
the system of sewers and water works shall revert to and become
the properties of the cities of Panama and Colon respectively,
and the use of the water shall be free to the inhabitants of Panama
and Colon, except to the extent that water rates may be necessary
for the operation and maintenance of said system of sewers and
water.
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REPORT OF PORT AND HARBOR COMMISSION
"The Republic of Panama agrees that the cities of Panama and
Colon shall comply in perpetuity with the sanitary ordinances
whether of a preventive or curative character prescribed by the
United States and in case the Government of Panama is unable or
fails in its duty to enforce this compliance by the cities of Panama
and Colon with the sanitary ordinances of the United States the
Republic of Panama grants to the United States the right and
authority to enforce the same.
"C
The same right and authority are granted to the United States
for the maintenance of public order in the cities of Panama and
Colon and the territories and harbors adjacent thereto in case the
Republic of Panama should not be, in the judgment of the United
States, able to maintain such order."
For all of this, it will be recalled, Panama got ten million in
gold coin and an annual payment of two hundred and fifty thou-
sand dollars. By Articles VI and XV private land owners are
guaranteed against damage, and any damage to private owners is
to be appraised and settled by a joint commission appointed by
the United States and Panama, whose decision shall be final.
This commission is to be appointed, two by the President of the
United States and two by the President of Panama. In case these
disagree by being equally divided, an umpire is to be appointed
by the two governments who shall render the decision. By Article
XXIII the United States is given the right to employ armed
force, if it becomes necessary, for "the safety or protection of
the Canal, or of the ships that make use of the same, or the rail-
ways and auxiliary works."
""
While the United States Supreme Court did not pass upon the
validity of all of the provisions of this treaty, nevertheless, in the
case of Wilson v. Shaw, 204 U. S. 24, it refused to interfere with
the operation of any of the provisions of the treaty. After review-
ing the history preceding the execution of the treaty, Judge
Brewer, speaking for the Court, said: "For the courts to inter-
fere
would be an exercise of judicial power which, to
say the least, is novel and extraordinary" (p. 31). (In the same
case the power of the Government to build the Canal, and to
authorize the incorporation of a company to operate the railroad,
is fully sustained.)
REPORT OF PORT AND HARBOR COMMISSION
179
The Suez Canal Convention
The provisions of the Hay-Pauncefote Treaty were taken from
the Suez Convention, almost, says Senator Root (Panama Canal
Tolls address to the Senate, January 21, 1913), "though not quite
textually." The Suez Convention contained provisions reserv-
ing to Turkey and Egypt as sovereigns of the territory through
which the canal passed, treating Turkey as the suzerain and Egypt
as the sovereign over Egypt, all of the rights that pertained to
the sovereigns for the protection of their own territory. (The
Suez Canal Convention is given in both French and English in
Sen. Doc., 56th Cong., 1st Sess., 1899, Vol. 10, Doc. 151, and in
English in Sen. Rep., 56th Congress., 2nd Sess., 1900, Vol. 1,
Doc. 1337, pt. 4, p. 318-319, and in House Doc., 62nd Cong.,
2nd Sess., 1912, Doc. 680, p. 41-44, and in White's "Expansion
of Egypt,” p. 339 et seq.)
By the Treaty of Constantinople, Oct. 29, 1888, between Great
Britain, Germany, Austria-Hungary, Spain, France, Italy, the
Netherlands, Russia and Turkey, providing for the free and open
navigation of the Suez Canal "to every vessel of commerce or of
war, without distinction of flag," the Powers agreed as follows
(Article VIII): "The Agents in Egypt of the Signatory Powers
of the Present Treaty shall be charged to watch over its execution.
In case of any event threatening the security or the free passage
of the Canal, they shall meet on the summons of three of their
number under the presidency of their Doyen, in order to proceed
to the necessary verifications. They shall inform the Khedivial
Government of the danger which they may have perceived, in
order that that Government may take proper steps to insure the
protection and the free use of the Canal. Under any circum-
stances, they shall meet once a year to take note of the due excu-
tion of the Treaty.
(6
*
*
*
*
*
*
They shall especially demand the suppression of any work or
the dispersion of any assemblage on either bank of the Canal, the
object or effect of which might be to interfere with the liberty and
the entire security of the navigation."
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REPORT OF PORT AND HARBOR COMMISSION
enues.
The Egyptian Commission of the Public Debt
Lord Cromer in his "Modern Egypt" (Vol. II, p. 304 et seq.)
tells the story of the establishment of the Egyptian Commission
of the Public Debt, consisting originally of an Englishman, a
Frenchman, an Austrian, and an Italian, and later of a German
and a Russian. The Powers of Europe having loaned nine million
pounds, it was necessary to furnish security for the debt. For this
purpose, the revenues of Egypt were pledged to the service of the
debt and the Commissioners were authorized to collect these rev-
No loan could be contracted without their consent. The
Law of Liquidation passed by Egypt, coupled with the decree of
July 27, 1885, gave to the European Powers participation in the
judicial system (Cromer: "Modern Egypt," p. 316), all the
Powers, without distinction, being represented upon the Courts of
First Instance. "The choice of judges rests nominally with the
Egyptian Government. In reality, the judges have until quite
recently been nominated by their respective Governments" (p.
318). Lord Cromer, commenting upon this system in his chapter
"Internationalism," refers to the wide field for the develop-
ment of internationalism of which the Egyptian Commission of
the Public Debt furnishes an example. For "What can be more
natural in cases of this kind," says he (p. 303), “than for the
Powers to say we are agreed as to all that is essential; certain
points of detail remain to be settled locally; let us each appoint
an expert who will represent our interests and see that they get
fair play, but who at the same time will have no very marked
political bias, and who will treat the technical questions which
come under his consideration on their own merits?
on
·
Sir Robert Phillimore points out that it frequently occurs that
a State, having contracted pecuniary obligations toward another
State, has mortgaged its revenues, or pledged a portion of its ter-
ritory, as security for the payment of its debts. Thus, among the
instances which he cites, the United Provinces of the Netherlands
hypothecated Vlissingen, Rameken and Briel to England, in 1585.
Denmark, in 1654, hypothecated the province of Holland to
Sweden, as a security for the peace then concluded. Weimar
appears to have been pawned, so to speak, to Mecklenburg in 1803,
and Corsica by Genoa to France in 1768.
REPORT OF PORT AND HARBOR COMMISSION
181
General Provisions of the Congress of Vienna
By the General Treaty of the Congress of Vienna, signed at
Vienna, June 9, 1815, Art. XXX (30), the King of Prussia and
the King of Hanover agreed:
"1. The Hanoverian Government engages to cause to be exe-
cuted, at its expense, in the years 1815 and 1816, the work which
a Commission, composed partly of artists, and to be immediately
appointed by Prussia and Hanover, shall deem necessary to ren-
der navigable that part of the river Ems which extends from the
Prussian frontier to its mouth, and to keep it, after the execution
of such works, always in the same state in which those works shall
have placed it for the benefit of navigation.
""
Article CVIII provided: "The Powers whose States are sepa-
rated or crossed by the same navigable River engage to regulate,
by common consent, all that regards its navigation. For this pur-
pose they will name Commissioners, who shall assemble, at latest,
within six months after the termination of the Congress, and who
shall adopt, as the bases of their proceedings, the Principles estab-
lished by the following articles.”
Article CIX: "The navigation of the Rivers, along their
whole course, referred to in the preceding Article, from the point
where each of them becomes navigable, to its mouth, shall be
entirely free, and shall not, in respect to Commerce, be prohibited
to any one; it being understood that the Regulations established
with regard to the Police of this navigation shall be respected, as
they will be framed alike for all, and as favourable as possible to
the Commerce of all nations."
Article CX provides that the system for collection of duties and
maintenance of the police "shall be, as nearly as possible, the
same along the whole course of the River; and shall also extend,
unless particular circumstances prevent it, to those of its Branches
and Junctions, which, in their navigable course, separate or tra-
verse different States.”
The Scheldt
By the Treaty of London, November 15, 1831, between Great
Britain, Austria, France, Prussia and Russia and Belgium, relat-
ing to the separation of Belgium from Holland, by Article IX it
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REPORT OF PORT AND HARBOR COMMISSION
was provided that concerning the River Scheldt, "that the pilot-
age and the buoying of its channel, as well as the conservation of
the channels of the Scheldt below Antwerp, shall be subject to a
joint superintendence; that this joint superintendence shall be
exercised by Commissioners, to be appointed on both sides for this
purpose; that moderate pilotage dues shall be fixed by mutual
agreement; and that such dues shall be the same for the Dutch as
for the Belgian commerce." (British and Foreign State Papers,
1830-31, p. 653 et seq.) By Article X, "The use of the canals
which traverse both Countries shall continue to be free and com-
mon to the Inhabitants of both."
The Niger and the Congo
The Treaty of Berlin, February 26, 1885 (Vol. 76, British and
Foreign State Papers), between Great Britain, Austria-Hungary,
Belgium, Denmark, France, Germany, Italy, the Netherlands,
Portugal, Russia, Spain, Sweden, Norway, Turkey and the United
States, respecting the affairs of Africa, established the freedom of
navigation of these rivers, and provided for the creation (Article
XVII) of the International Navigation Commission of the Congo,
which “shall be charged with supervising the application of the
principles proclaimed and perpetuated (consacrés) by this
Declaration.
"In all cases of difference arising relative to the application
of the principles established by the present Declaration, the Gov-
ernments concerned may agree to appeal to the good offices of the
International Commission, by submitting to it an examination of
the facts which shall have occasioned these differences." (Herts-
let's "Commercial Treaties," London, 1890, Vol. XVII.)
The Rhine
By the Treaty of Vienna, June 9, 1815 (see Hertslet's "Col-
lection of Treaties and Conventions between Great Britain and
Foreign Powers, Vol. 1, 1827), Article X of Annex 16 provided
that in order to insure that the navigation of the rivers along their
whole course, referred to in the preceding article, "shall be
entirely free, and shall not, in respect to Commerce, be prohibited
to any one" and "
to establish a perfect control over the
REPORT OF PORT AND HARBOR COMMISSION
183
observance of the general regulation, and to constitute an authority
which may serve as a means of communication between the States
of the Rhine upon all subjects relating to Navigation, a Central
Commission shall be appointed." Each State bordering on the
Rhine (Article XI) was authorized to name a commissioner for
its formation, which was to assemble regularly at Mentz on the
1st of November in each year. (The Congress was representative
of Austria, France, Great Britain, Portugal, Prussia, Russia,
Spain and Sweden.) Article XII provided that "in order that a
permanent authority may exist, which, in the absence of the Cen-
tral Commission, may superintend the observance of the regula-
tion, and to which the merchants and boatmen may at all times
refer, there shall be named a Chief Inspector and three Deputy
Inspectors." Articles XIII, XIV and XV provided in detail for
the manner of selection of the Chief Inspector by the Central Com-
mission. It was provided that the Prussian Commissioner should
have one-third of a certain number of votes, the French Commis-
sioner one-sixth, the Commissioner of the Netherlands one-sixth
and the other German princes, excepting Prussia, one-third. The
appointments of the inspectors were to be for life. The Chief
Inspector, assisted by the Deputy Inspectors (Article XV), are
to superintend the fulfilment of the regulation, and to arrange
everything relating to the police of the navigation. It will, there-
fore, be his right and his duty to issue orders on this subject to the
Offices for collecting duties, and to communicate with the other
local authorities of the States bordering on the Rhine." By Arti-
cle XVI, the Inspectors were to be under the control of the Cen-
tral Commission, to whom they must report, and were subject in all
respects to their superintendence. And by Article XVII, "The
decisions of the Central Commission shall be had by an absolute
majority of votes, which shall be given in perfect equality; but
as its members should be considered as agents of the States of the
Rhine, charged with making arrangements for their mutual inter-
ests, their decisions shall not be binding upon these States until
their consent shall have been given by their Commissioners." By
Article XXVII provision is made for the making of detailed
regulations, as well as for organizing "judicial authorities of the
First and Second Instance, and their mode of proceeding," "the
(6
184
REPORT OF PORT AND HARBOR COMMISSION
Police of the ports for shipping, unloading, or shifting cargoes,'
all of which are to be framed by the Central Commission.
22
And by additional articles the same principles, it was stipu-
lated, should be applied to the Neck-r, the Mayne, the Moselle,
the Meuse and the Scheldt.
""
The French Fishing Rights at Newfoundland
The ownership of Newfoundland was at one time a matter of
dispute between Great Britain and France. By a Treaty of
Utrecht in 1713, France ceded all her claims to Great Britain,
subject, however, to the provision that "it shall be allowed to the
Subjects of France, to catch fish and to dry them on land, in that
part only, and in no other besides that, of the said Island of New-
foundland, which stretches from the place called Cape Bonavista,
to the northern point of the said Island, and from thence running
down by the western side, reaches as far as the place called Point
Riche.' By the treaty between Great Britain and France in
1783, the territorial limitations were changed, and by the treaty
of January 14, 1857, Article I (see U. S. Case, North Atlantic
Fisheries Case before the Hague Tribunal, Vol. 2, Appendix, p.
51 et seq.), French subjects were confirmed in the "exclusive
right to fish, and to use the strand for fishery purposes, during the
season elsewhere specified (Article VIII), on the east coast of
Newfoundland, from Cape St. John to the Quirpon Islands. They
shall also have the right to fish, and to use the strand for fishery
purposes, during the said season, to the exclusion of British sub-
jects, on the north coast of Newfoundland, from the Quirpon
Islands to Cape Norman; and on the west coast, in and upon the
five fishing-harbours of Port-au-Choix, Small Harbour (or Petit
Port), Port au Port, Red Island, and Cod Roy Island. Such
exclusive fishing, from the Quirpon Islands to Cape Norman,
shall extend to a distance of three marine miles
from
and as regards the five harbours, shall extend to
within a radius of three marine miles in all directions from the
centre of each such harbour, but with power to the Commissioners
or Umpire elsewhere provided for in this Convention to alter such
limits for each harbour in accordance with the existing practice."
For the enforcement of these provisions, the naval officers of the
REPORT OF PORT AND HARBOR COMMISSION
185
French Government (Article IX) were authorized to enforce "the
said French exclusive rights of fishing" by "expulsion of vessels
or boats attempting concurrent fishing, in the case of there being
no British cruizing-vessel in sight, or made known to be present,
within a distance of five marine miles." Article XVIII provided
for an arbitration commission, consisting of one commissioner for
each Power, with provision for an umpire to settle disputes. These
treaty rights remained in force and effect until April 8, 1904,
when France limited her advantages in exchange for other rights
in Africa, retaining, however, the fishing rights in these territorial
waters. (See 2 North Atlantic Coast Fisheries Case, p. 83 et seq.)
Despagnet, a leading French writer, in his work "Cours de
Droit International Public," 1899 (see "Coastal Waters," Eng-
lish translations compiled by Borchard, p. 59); says:
"A state may cede to another the right of fishing in territorial
seas, even to the exclusion of its own nationals. Such is the case in
Newfoundland. Although fishing is free on the Grand Banks of
Newfoundland situated in the open sea, and although it belongs
exclusively to the French in the territorial waters of her colonies
of St. Pierre and Miquelon, it is by exception reserved to France
over a part of the territorial waters of Newfoundland, with liberty
for French fishermen to establish themselves exclusively on the
portion of the shore called, on that account, the French shore, by
the Treaty of Utrecht of April 11, 1713, which ceded the island to
Great Britain. This reservation has been confirmed in the treaty
of Aix-la-Chapelle, 1748, and the treaty of Paris of February 10,
1763, of Versailles of September 30, 1783, of Paris of May 30,
1814, and November 20, 1815, and in the special convention regu-
lating the exercise of fishing of January 14, 1857." ($422.)
Rivier, another French writer (see Borchard:
Waters," English translation, p. 319), says: "The most well
known and important derogations from the exclusive right of fish-
ing in the littoral sea is the servitude constituted in favor of
France by Article XIII of the treaty of Utrecht of 1713, ceding
Newfoundland to Great Britain and the servitude in favor of the
United States in the British waters off Newfoundland and
Canada."
"Coastal
186
REPORT OF PORT AND HARBOR COMMISSION
The significant fact about the French fishing rights is that they
are rights in waters over which Great Britain retains sovereignty,
which, during certain periods of the year, may be exercised
exclusively by Frenchmen.
Other Fishery Cases
By Article XI of the treaty of peace between Russia and Japan,
August 23-September 5, 1905, Japanese subjects receive a conces-
sion of fishing rights in Russian territorial waters of the Seas of
Japan, Okhotsk, and Behring.
United States-Canadian Canals
66
By the Treaty of 1871 between the United States and Great
Britain, the citizens of the United States are given free use of
the Welland, St. Lawrence, and other canals in the Dominion on
terms of equality with the inhabitants of the Dominion; and the
Government of the United States engages that the subjects of Her
Britannic Majesty shall enjoy the use of the St. Clair Flats Canal
on terms of equality with the inhabitants of the United States."
In our treaty with Great Britain (the reciprocity treaty) of
1854, "It is agreed that the citizens and inhabitants of The
United States shall have the right to navigate the river St. Law-
rence and the canals in Canada, used as the means of communi-
cating between the Great Lakes and the Atlantic Ocean, with their
vessels, boats, and crafts, as fully and freely as the subjects of Her
Britannic Majesty, subject only to the same toll and other assess-
ments as now are or may hereafter be exacted of Her Majesty's
said subjects.
"It is further agreed, that British subjects shall have the right
freely to navigate Lake Michigan with their vessels, boats and
crafts, so long as the privilege of navigating the river St. Law-
rence, secured to American citizens by the above clause of the
present Article, shall continue; and the Government of The
United States further engages to urge upon the State Governments
to secure to the subjects of Her Britannic Majesty the use of the
several State canals on terms of equality with the inhabitants of
The United States."
REPORT OF PORT AND HARBOR COMMISSION
187
Nicaragua Canal
By the treaty between the United States and Nicaragua in 1867
it was provided that: "The Republic of Nicaragua hereby grants
to The United States, and to their citizens and property, the right
of transit between the Atlantic and Pacific Oceans through the
territory of that Republic, on any route of communication, natural
or artificial, whether by land or water, which may now or here-
after exist or be constructed under the authority of Nicaragua,
to be used and enoyed in the same manner and upon equal terms
by both Republics and their respective citizens.'
""
United States-Mexico Commission
On
In 1896 the United States and Mexico referred to "The Inter-
national (Water) Boundary Commission" the subject of the
equitable distribution of the waters of the Rio Grande (see Vol.
II, Department of State, Proceedings of the International
(Water) Boundary Commission, U. S. and Mexico, Treaties of
1884 and 1889). Among other things, the Commission was to
report as to "the best and most feasible mode, whether through a
dam to be constructed across the Rio Grande near El Paso, Tex.,
or otherwise, of so regulating the use of the waters of said river as
to secure to each country concerned and to its inhabitants their
legal and equitable rights and interests in said waters."
November 25, 1896, after careful study, the Joint Commission
thus appointed recommended to the two Governments "that a
treaty be entered into, as a final settlement of all questions past
and future, regarding the distribution of the waters of the Rio
Grande." This treaty was to involve the ceding by the United
States to Mexico of a small tract of land, the construction of a
dam as designed by joint engineers, the removal of railroads from
the bed of the proposed reservoir, and the acquisition of land to be
submerged, and required that the further management of the
river should be committed to the management of a mixed commis-
sion, who, after constructing the dam, should provide for the
permanent distribution of the flow, one-half, roughly speaking,
for such use as the Mexican Government might see fit to apply it
to, and one-half as the United States might see fit to apply it.
The treaty between the United States and Mexico of March 1,
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REPORT OF PORT AND HARBOR COMMISSION
1889, provided that all questions arising by reason of the changes
which take place in the beds of the Rio Grande and the Colorado
Rivers should be submitted "for examination and decision to an
International Boundary Commission which shall have exclusive
jurisdiction in the case of said differences or questions." Under
this power, the construction and limit of works undertaken on the
Rio Grande and Colorado along the international boundary line
has been freely exercised, notably in the case of the Brownsville
and Matamoras jetties in 1895, where the commission recom-
mended the construction of a complete system of defensive and
counter-defensive works. (The Rio Grande is a torrential stream.
For the greater part of the year it carries no great quantity of
water. Then come its flood seasons, which come suddenly, do not
last long and pass away quickly. To check these torrential flows
"defensive and counter-defensive works" were required.) The
International Commission in 1897 settled the matter of the
demarcation of the boundary of the two international bridges
connecting Eagle Pass, Texas, and Ciudad Porfirio Diaz,
Coahuila. It also settled the boundary line in the El Chamizal
case.
The International Joint Commission
(United States and Canada)
Ex-Senator Root and Ex-Ambassador Bryce negotiated in 1909
the treaty relating to boundary waters between the United States
and Canada which is now in full force and operation. This treaty
provides (Article I) that "the navigation of all navigable bound-
ary waters shall for ever continue free and open for the purposes
of commerce to the inhabitants and to the ships, vessels, and
boats of both countries equally, subject, however, to any laws and
regulations of either country, within its own territory, not incon-
sistent with such privilege of free navigation, and applying equally
and without discrimination to the inhabitants, ships, vessels and
boats of both countries," both parties, however, reserving (Article
II) "the exclusive jurisdiction and control over the use and
diversion, whether temporary or permanent, of all waters on its
own side of the line which in their natural channels would flow
across the boundary or into boundary waters; but it is agreed
that any interference with or diversion from their natural channel
REPORT OF PORT AND HARBOR COMMISSION
189
of such waters on either side of the boundary, resulting in any
injury on the other side of the boundary, shall give rise to the
same rights and entitle the injured parties to the same legal
remedies as if such injury took place in the country where such
diversion or interference occurs.
By Article VII, "The High Contracting Parties agree to estab-
lish and maintain an International Joint Commission of the
United States and Canada, composed of six commissioners, three
on the part of the United States, appointed by the President
thereof, and three on the part of the United Kingdom, appointed
by His Majesty on the recommendation of the Governor in Coun-
cil of the Dominion of Canada."
By Article VIII the Commission is given jurisdiction over and
is required to pass upon all cases involving the use or obstruction
or diversion of the waters with respect to which, under Articles
III and IV of the treaty, the approval of the Commission is
required. In passing upon such cases the Commission is required
to govern itself by the following rules and principles:
66
The High Contracting Parties shall have, each on its own side
of the boundary, equal and similar rights in the use of the waters
herein before defined as boundary waters.
"The following order of precedence shall be observed among
the various uses enumerated hereinafter for these waters, and no
use shall be permitted which tends materially to conflict with or
restrain any other use which is given preference over it in this
order of precedence:
"(1) Uses for domestic and sanitary purposes;
"(2) Uses for navigation, including the service of canals for
the purposes of navigation;
"(3) Uses for power and for irrigation purposes.
"The foregoing provisions shall not apply to or disturb any
existing uses of boundary waters on either side of the boundary."
Furthermore, and this is of very great practical importance and
of direct application to our problem, the Commission "may make
its approval in any case conditional upon the construction of reme-
dial or protective works to compensate, so far as possible, for the
particular use or diversion proposed, and in such cases may require
that suitable and adequate provision, approved by the Commis-
19.0
REPORT OF PORT AND HARBOR COMMISSION
sion, be made for the protection and indemnity against injury of
any interests on either side of the boundary."
Pursuant to this treaty, commissioners were appointed on the
part of the United States on March 9, 1911, and on the part of
Canada, November 10, 1911, organized on the 10th of January,
1912, and adopted rules of procedure (a copy of which is to be
found in the library of the Commission). Under this authority,
the Commission has acted in many cases, notably the Watrous
Island Boom Company application for the approval of plans for a
boom in Rainy River, the application of the Receiver of Michigan
Lake Superior Power Company for approval of a lease with the
United States for diversion of water and the construction of com-
pensating works, the application of the Michigan Northern Power
Company for diversion of waters of St. Mary's River at Sault Ste.
Marie, Michigan, the application of the Algoma Steel Corpora-
tion, Limited, for approval of the construction of compensating
works on St. Mary's River. Upon the hearing of the latter appli-
cation, the Chairman, Hon. James A. Tawney, said:
the people of no two countries in the world, except the people of
Canada and the United States, have the opportunity of appear-
ing personally before an international tribunal of any kind with
original and final jurisdiction in their respective countries, as they
may and are now doing in this case.
This tribunal is
also unique because composed of citizens of two independent sover-
eignties.
Neither section of the Commission has any
authority under the treaty to act in either country independent
of the other. Each section acts in conjunction with the other as
a joint international organization. In cases like the one now
before us each member acts as the representative of both countries,
or as Mr. Commissioner Gore, of Massachusetts, in deciding a
case arising under the Jay treaty for the settlement of questions
growing out of the War of the Revolution, well said:
66
"Although I am a citizen of but one nation, I am constituted
a judge of both. Each nation has the same right and no greater
right to demand of me fidelity and diligence in the examination,
exactness, and justice of the decision." "
This is precisely the attitude that we should like a Joint Port
Authority to take, though receiving appointment, one-half of its
REPORT OF PORT AND HARBOR COMMISSION
191
members at the hands of the Governor of New York and one-half
at the hands of the Governor of New Jersey. The considerations
leading to the information of this International Commission are
pertinent to our inquiry. In the opinion of the Joint High Com-
mission in the matter of the compensating works in St. Mary's
River, it said:
"Neither Government needed the aid of the Commission to
prevent it from acting improvidently in granting persons or cor-
porations authority to use, obstruct, or divert its navigable waters.
They were fully capable of taking care of themselves. But in
taking care of themselves on their own side of the line, they did
not always consider, or at least did not always adequately provide
for taking care of, the interests of their neighbor on the other side
of the line. It was this feature of the situation that led to the
establishment of the International Joint Commission. That Com-
mission so long as the treaty remains, supervises the action of either
Government acting singly and alone in the matter of uses, obstruc-
tions, or diversions of boundary waters authorized by it, but it
does so, not for the protection of the moving government, but for
the protection of the passive government, which may be injured by
the energy of its neighbor acting within the scope of its municipal
authority, if its power be not scrutinized and supervised by an
impartial tribunal.”
The employment of a joint agency to construct "compensating
works" finds precedential authority in the opinion of the Joint
High Commission in the matter of the application of the Michigan
Northern Power Company for approval of diversion and use of
the waters of the St. Mary's river on the United States side of the
international boundary at Sault Ste. Marie. In its opinion and
order, the Joint High Commission directed that compensating
works, including power canals, should be built to maintain the
level of Lake Superior, but provided that "the operation of all
the said works, canals, head gates and by-passes for the above pur-
poses shall be under the direct control of
'the board of
control.'" This board of control consists of two members, one
appointed by each Government, which board is authorized to
formulate the rules under which the compensating works, the power
canals, their head gates and by-passes are to be operated, "so as to
192
REPORT OF PORT AND HARBOR COMMISSION
secure as nearly as may be the regulation of Lake Superior within
the range of monthly mean levels recommended and found neces-
sary." In this opinion, the Commission considers its power to
create such boards of control and finds that it is not only confirmed
by the treaty," but its existence is a necessary concomitant to the
carrying out of the true intent and purpose of the treaty in respect
to the prevention and settlement of disputes between the two gov-
ernments and their people regarding the use of boundary
waters. Without this power to approve conditionally, in cases
where the proposed obstructions and diversions affect the rights
and interests of the people on the other side, the purpose of the
treaty would entirely fail." And the Commission adopts the lan-
guage of Judge Bryn in Tucker v. Alexandorff (183 U. S. 424)
to the effect that "treaties are solemn engagements entered into
between independent nations for the common development of their
interests and the interests of civilization." Not only are they
designed to avoid war and secure a lasting and perpetual peace,
but they are designed [as our proposal is designed] to promote a
friendly feeling between the people of the two countries [States].
For this reason "they should be interpreted in that broad and
liberal spirit which is calculated to make for the existence of a
perpetual amity, so far as it can be done without the sacrifice of
individual rights or of those principles of personal liberty which
lie at the foundation of our jurisprudence." Accordingly, the
Joint High Commission, interpreting the treaty in this broad
spirit, finds that "there are no limitations whatsoever except the
judgment of the Commission" as to what "may be necessary to
suitably and adequately protect and indemnify all interests.'
Thus, to avoid any possible injury to large public and private
interests on both sides of the river, it established the joint board
of control and finds it "unnecessary to consider the question of
whether, under the treaty, the commission has or has not adminis-
trative or executive powers." It holds that in exercising the
judicial powers given to it by the treaty, it may make the grant
of permission conditional upon the construction of works to be
supervised by an international board of control. In its order it
provides that this board of control is to be made up of the officer
of the Corps of Engineers charged with the improvement of the
22
REPORT OF Port and HARBOR COMMISSION
193
· •
·
•
falls of St. Mary's River on the American side, and an officer
appointed by the Canadian Government. It is made the duty of
these two "to formulate rules under which the compensating works
and power canals and their head gates and by-passes shall be oper-
ated so as to secure as nearly as may be the regulation of Lake
Superior." And by Paragraph 17, in case this board cannot
agree, the Commission itself will make the decision. Other appli-
cations, involving the construction of compensating works, were
treated by the Commission in the same way. Thus the applica-
tion of the St. Croix Water Power Co., incorporated by C. 203,
Acts of 1899, of Maine, and the Sprague's Falls Manufacturing
Co. (Ltd.), incorporated 2 Edw. VII, C. 103, Dom. Can., for the
construction of a dam across the St. Croix river at Grand Falls,
and a power canal to convey water to a power house, was approved
on condition that all dams, sluices, by-passes, etc., shall be "under
the direct control" of the Board of Control consisting of an officer
to be appointed by the Governor-General in Council of Canada
and one appointed by the Secretary of War of the United States,
with full power to make rules, preserve records, and, in case of
disagreement, to refer the matter to the Joint High Commission
for final decision. The remarks of Commissioner Magrath in
concurring with the decision in this case have value for us. Hẹ
wishes to point out that "while not strictly pertinent to the matter
before the commission, the practice by Governments of making
grants of land carrying riparian rights in streams was initiated
when these rights were not looked upon as being of much value,
and unfortunately the practice has outlived the old condition of
things. In recent years, however, owing largely to electrical
transmission, power rights have acquired great importance and
may properly be regarded as public utilities. It would be well
for all Legislatures of both the United States and Canada to con-
sider the desirability of retaining or acquiring these valuable
assets for the benefit of the public."
The Lake of the Woods Case
What the Port of New York is to the States of New York and
New Jersey, the watershed of the Lake of the Woods is to Min-
nesota, Manitoba and Ontario. It is 1,485 square miles in area, or
7
194
REPORT OF PORT AND HARBOR COMMISSION
""
about 400 square miles greater than the State of Rhode Island.
The entire drainage area of the lake and its tributary waters is
26,750 square miles, an area 5,000 square miles greater than Nova
Scotia, and greater than the combined areas of New Hampshire,
Massachusetts, Rhode Island, Connecticut and Delaware. The
lake on the map appears as only a small water between Lake
Winnipeg, Canada, and Lake Superior, United States. It is the
westerly point of the water boundary between the United States
and Canada. But upon its rise and fall largely depends the com-
mercial and agricultural prosperity of these communities in
Canada and in the United States. In 1895, settlers on the south
shore of the lake, in Minnesota, began to complain to the Depart-
ment of the Interior that their lands had been submerged by high
levels in Lake of the Woods, caused by the construction of a dam,
and these complaints continued down to and including 1905 and
1906. The situation having grown worse, and investigation hav-
ing been made both by the War Department of our country and
a Canadian Government committee, the question was raised,
what rights and remedies the citizens of Minnesota will have
with regard to "diversion of these waters" and what correspond-
ing measures should be taken with a view to the establishment of
similar rights and to provide similar remedies for citizens of
Canada. Overtures were made by the United States to Canada
to submit these questions to the International Joint Commission.
It appeared that there was doubt as to whether or not the Com-
mission had jurisdiction, and the rights of the parties were "not
rights which either now possess. They are rights which belong
to their respective inhabitants and, if not voluntarily granted,
can be acquired only for the purposes desired, by and through the
exercise of the sovereign power to take private property for a pub-
lic use." After a most painstaking engineering investigation into
the whole problem, covering many volumes, the International
Joint High Commission recommends that for the purpose of secur-
ing the most advantageous use of the waters of this entire water-
shed, and also from the standpoint of a sound, comprehensive
international policy,
the International Joint Commis-
sion "be authorized to exercise supervision and control over the
operation of all dams and regulating works extending across the
REPORT OF PORT AND HARBOR COMMISSION
195
international boundary.
"And further, that,
(( as a mat-
ter of sound international policy, neither Government should per-
mit the permanent or temporary diversion out of the watershed
of any waters within its jurisdiction which are tributary to the
boundary waters under consideration," and which would result in
any injury on the other side of the boundary, without the approval
of the International Joint Commission, and that the decision of
the commission in all such cases be made final. The Commission
was required to consider "by what means or arrangement can the
proper construction and operation of regulating works or a system
or method of regulation be best secured and maintained in order
to insure the adequate protection and development of all the
interests involved on both sides of the boundary, with the least
possible damage to all rights and interests, both public and pri-
vate.” In order to accomplish this task, the American Commis-
sioners recommend acquisition of private property, and in their
report submit a definite plan of procedure for the exercise of the
powers of eminent domain in each of the two countries by which
such private property may be acquired. They examine into the
questions of law raised by these recommendations, and say that the
use to which the property is to be put "would constitute a public
use and authorize the taking of property for this use under the
power of eminent domain and expropriation." Their observations
upon the value of such a joint undertaking have value to us.
The interdependent interests, the importance and value to both
countries and their people of permanently securing all the material
advantages from the use of these waters and preventing such use
from hereafter being a disturbing factor between the two Govern-
ments, are of such magnitude that the rights acquired in respect
thereto should be permanent and irrevocable. If acquired sever-
ally and thereafter held by the Government acquiring the same in
trust for the benefit of the other the uncertainty of tenure would
seriously impair the stability of these rights and probably con-
stitute a barrier in the way of the development of the water
powers of this region, because rights thus held could be renounced
at will." They also consider the question of how the parties
can legally acquire and hold, under the jurisdiction of the other,
these necessary vested rights in order to insure the satisfactory
196
REPORT OF PORT AND HARBOR COMMISSION
maximum water-power development in both countries this region
affords, and at the same time safeguard the rights and promote
the development of the interests of their respective peoples."
They propound the question: "Can a State in its public capacity
hold nonterritorial property in another State or can a sovereign
State limit or qualify its proprietary sovereignty by permitting
another State to acquire and hold property within its territorial
jurisdiction for the use and benefit of such other State within its
jurisdiction or for the use and benefit of its inhabitants?" After
a careful review of authorities and the statement that "the doc-
trine here laid down is supported by all text writers on inter-
national law," they say: "The power of a nation to restricts its
proprietary sovereignty by granting to another nation the right to
àcquire and hold title to land or vested rights or easements therein
the same as if held by a private individual can not be questioned.
Lands, rights, or easements thus acquired are held, however, sub-
ject to the political sovereignty of the nation granting the right to
hold the same.” For this statement they cite Leavenworth R. R.
Co. v. Howe, 114 U. S. 525, 538. They are of opinion that this
doctrine has been "universally recognized and followed by nations
' time out of mind' as appears from their treaties. The granting
of this right, however, does not involve or carry with it any sur-
render of political sovereignty. That remains unchanged and
supreme." Further considering the question whether or not the
two sovereignties could acquire property and thereafter hold it
jointly, the American Commissioners say: "The rights, how-
ever, which both parties must have for this purpose are not rights:
which either now possess. They are rights which belong to their
respective inhabitants and, if not voluntarily granted, can be
acquired only for the purpose desired, by and through the exercise
of the sovereign power to take private property for a public use.
Can this power, by agreement, be exercised jointly by the high
contracting parties for this purpose?" Recognizing always that
whatever procedure is adopted must conform to the fundamental
law of each nation, and since the law in Canada and the United
States emanates from the same common source and both are pro-
tected under the same or similar rules-in the United States
under a written Constitution and in Canada under rules perhaps.
REPORT OF PORT AND HARBOR COMMISSION
197
less rigid, and more flexible
mendation should conform to the requirements of the Constitu-
tion of the United States. If it so conforms, "it will not likely
be found inconsistent with the laws governing the taking of pri-
vate property in the Dominion of Canada." "The high contract-
ing parties," say the American Commissioners, "each possess and
may exercise the power of eminent domain or expropriation in
their respective jurisdictions, for their own or the public good.
It follows, therefore, that in their sovereign capacity, they may
by treaty agree to do jointly and for their mutual welfare, in their
respective jurisdictions, that which they are authorized to do
severally." Indeed, they find recognition of this principle in
the treaty under which they are acting, by which the two nations
have clothed the Joint High Commission with "final jurisdiction
in both countries in certain matters which involve the rights,
obligations, or interests of either in relation to the other, or to
the inhabitants of the other." There is no doubt, therefore, in
their opinion, that the two countries may conclude a treaty, pro-
viding for the institution of legal proceedings in either or both
countries for the taking of private property, provided the purpose
of the proposed taking is a public use, and that being so “it is
clearly within the power of the high contracting parties to author-
ize, by treaty, the making of a special administrative agreement
between them for the complete accomplishment of the purposes of
that treaty or of any part thereof." [These careful observations
of the American Commissioners, though contained in a supple-
mental report, are in accord in the main with the formal recom-
mendations for control made by the Joint Commission.] This
determination by an international commission of Canadian and
American lawyers, taking full account of the fundamental prin-
ciples of the English common law and of the limitations of the
Federal Constitution, seems to be a most convincing and satisfac-
tory precedent to guide us in the formulation of our treaty.
therefore, in their belief the recom-
The European (Danube) Commission
Of all the administrative agencies that have ever been created
for the purpose of carrying out the common purpose of several
sovereignties, especially in the development of rivers and harbors
198
REPORT OF PORT AND HARBOR COMMISSION
and the improvement of commerce and navigation, none is so
instructive and so valuable in experience as the Danube Commis-
sion. Two recent English writers" The Question of the Bos-
phorus and Dardanelles" - Phillipson and Buxton, London,
1917 recommend as the model for the internationalization of
the Bosphorus and the Dardanelles the method of internationali-
zation of the Danube. "In many spheres of political and com-
mercial activity," say they (p. 237), "international co-operation
has conferred great benefits on all parties concerned." "A system
of internationalization means international co-operation. It is,
then, manifestly in the interests of the world at large that every
opportunity should be seized for internationalizing territories
that have given rise to inveterate disputes, as well as waterways
that are used for general international commerce and intercourse.
To bring about the co-operation of States in this or that under-
taking is to promote the habit of association, and to pave the way
for a more thorough and comprehensive union, such as is implied
in the establishment of a League of Nations subject, in the event
of differences, to the arbitration of an International Court." The
European Commission for the Danube (p. 241) "has achieved
such success that it may be regarded as a remarkable precursor
in the art of international government." The Danube played a
very important part in European policy and political economy
even before the present war. It traverses regions "whose rich
agriculture is proverbial" (Le Danube, Baicoianu, Paris, 1917)
and its great importance economically and commercially arises
from the diversity of the production along its banks. It finds its
source in the Grand Duchy of Baden, a distance of thirty to
forty kilometers from the approach to the Rhine and about 500
to 600 kilometers "de la Mer du Nord" (North Sea). It travels
through Wurtemburg and Bavaria, its branch, the Enns, dividing
Lower from Upper Austria. It passes the cities of Linz and
Vienna. It then takes a right oblique to the south and goes
through the great fields of Hungary, passing Budapest, dividing
Slavonia from Hungary. Near the Theiss it changes its direction
to the southeast, touching the city of Semlin, at which point com-
mences the front of Servia. The Danube then passes Belgrade
between Servia on the south and Hungary on the north and enters
REPORT OF PORT AND HARBOR COMMISSION
199
Rumania, nourishing the basin between the Carpathians and the
Balkans, separating Dobrudja from Bessarabia. For a distance
of four hundred kilometers it is the frontier between Rumania
and Bulgaria and enters the Black Sea through three mouths, the
Kilia, Sulina and St. George. It travels through nine countries,
having a population of 52,783,472. (Baicoianu.)
Of course, the improvement of the navigability of the Danube
is of great importance to all of the countries it traverses, but the
Associated Chambers of Commerce of the United Kingdom,
addressing the Secretary of State for Foreign Affairs, the Right
Honorable Earl Granville, K. G., on April 27, 1882, said "it is
of great importance to the trade and commerce of this country
[Great Britain] that the navigation of the River Danube should
be as free as possible, and that British ships, as well as the vessels
of other maritime nations, should be allowed to move and carry
cargo to and from, and between, all the ports on that river with
the same freedom and on the same terms and conditions as vessels
belonging to States having territory bordering on the river."
(Parlimentary Papers, 1882, Vol. LXXX, London, 1882.) The
tonnage leaving Sulina in 1881 amounted to 793,454 tons. The
annual receipts in 1881 were Fr. 3,448,190, c. 60. The expenses
were Fr. 2,606,095, c. 39. Statistics of the expenditure, debt,
sinking fund, etc., are to be found in this volume, as well as in
Baicoianu. (See also Encyclopædia Britannica, 11th Edition,
title "Danube," p. 819 et seq.)
The history of the various European controversies over the
Danube is told by Baicoianu at length, and an excellent map show-
ing in colors the several sovereign States through which the
Danube runs and the effect of the several treaties of Paris, 1856,
Berlin, 1878, and of London, 1883, is to be found attached to the
book of Geffcken (Berlin, 1883), “La Question du Danube."
The European convulsion of 1853, resulting in the Treaty of
Paris (1856), afforded an opportunity for the harmonization of
the political and economic questions affected by the Danube, and
a convenient grouping of a considerable number of States. The
principle emphasized by Grotius and expounded more fully by
Vattel and other jurists, that navigation of international rivers
should be free, was proclaimed in November, 1792, by the pro-
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visional Executive Council of France in regard to the Scheldt.
This proclamation has been designated "the first charter of con-
temporary fluvial liberties." (E. Engelhardt: "Du régime con-
ventionnel des fleuves internationaux," Paris, 1879.) In 1814,
the Treaty of Paris (Art. V) declared the freedom of navigation
on the Scheldt, and on the Rhine from the point at which it
becomes navigable to the sea. The following year the final act of
the Congress of Vienna stipulated that "the Powers whose States
are separated or crossed by the same navigable River engage to
regulate, by common consent, all that regards its navigation."
And they agreed to the appointment of a commission which should
assemble within six months thereafter and which should follow
the basic principle established by the Article. Article CIX laid
down this fundamental principle and said that "the navigation of
the Rivers, along their whole course, referred to in the preceding
Article, from the point where each of them becomes navigable, to
its mouth, shall be entirely free, and shall not, in respect to Com-
merce, be prohibited to any one; it being understood that the
Regulations established with regard to the Police of this naviga-
tion shall be respected, as they will be framed alike for all, and as
favourable as possible to the Commerce of all nations." Article
CX provides that the system for collection of duties and mainte-
nance of the police "shall be, as nearly as possible, the same
along the whole course of the River; and shall also extend, unless
particular circumstances prevent it, to those of its Branches and
Junctions, which, in their navigable course, separate or traverse
different States."
To control the navigation, and as a means of communication
between the States of the Rhine, it was agreed that a central com-
mission should be appointed, comprising delegates named by the
various bordering States. The Treaty of Paris come to between
Great Britain, Austria, France, Prussia, Russia, Sardinia and
Turkey (March 30, 1856) provided as follows:
"Art. XV. The Act of the Congress of Vienna having estab-
lished the principles intended to regulate the Navigation of Rivers
which separate or traverse different States, the Contracting
Powers stipulate among themselves that those principles shall in
future be equally applied to the Danube and its Mouths. They
REPORT OF PORT AND HARBOR COMMISSION
201
declare that its arrangement henceforth forms a part of the Public
Law of Europe, and take it under their Guarantee.
"The navigation of the Danube cannot be subjected to any
impediment or charge not expressly provided for by the Stipula-
tions contained in the following Articles: In consequence, there
shall not be levied any Toll founded solely upon the fact of the
Navigation of the River, nor any Duty upon the Goods which
may be on board of Vessels. The Regulations of Police and of
Quarantine to be established for the safety of the States separated
or traversed by that River, shall be so framed as to facilitate, as
much as possible, the passage of Vessels. With the exception of
such Regulations, no obstacle whatever shall be opposed to Free
Navigation.
"Article XVI. With the view to carry out the arrangements
of the preceding Article, a Commission, in which Great Britain,
Austria, France, Prussia, Russia, Sardinia, and Turkey, shall
each be represented by one delegate, shall be charged to designate
and to cause to be executed the Works necessary below Isatcha, to
clear the Mouths of the Danube, as well as the neighboring parts
of the Sea, from the sands and other impediments which obstruct
them, in order to put that part of the River and the said parts of
the Sea in the best possible state for Navigation.
(6
In order to cover the Expenses of such Works, as well as of
the establishments intended to secure and to facilitate the Navi-
gation at the Mouths of the Danube, fixed Duties, of a suitable
rate, settled by the Commission by a majority of votes, may be
levied, on the express condition that, in this respect as in every
other, the Flags of all Nations shall be treated on the footing of
perfect equality.'
By Article XVII a commission is established to be composed of
delegates from Austria, Bavaria, the Sublime Porte, and Wurtem-
burg (one for each of these Powers), to whom are to be added
Commissioners from the three Danubian Principalities, which
nomination shall have been approved by the Porte. "This Com-
mission, which shall be permanent: 1. Shall prepare Regulations
of Navigation and River Police; 2, Shall remove the impedi-
ments, of whatever nature they may be, which still prevent the
application to the Danube of the Arrangements of the Treaty of
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REPORT OF Port and HARBOR COMMISSION
Vienna; 3. Shall order and cause to be executed the necessary
Works throughout the whole course of the River; and 4. Shall,
after the dissolution of the European Commission, see to main-
taining the Mouths of the Danube and the neighboring parts of
the Sea in a navigable state."
"Art. XVIII. It is understood that the European Commission
shall have completed its task, and that the River Commission shall
have finished the Works described in the preceding Article, under
Nos. 1 and 2, within the period of two years. The signing
Powers assembled in Conference having been informed of that
fact, shall, after having placed it on record, pronounce the Dis-
solution of the European Commission, and from that time the
permanent River Commission shall enjoy the same powers as
those with which the European Commission shall have until then
been vested.
"Art. XIX. In order to insure the execution of the Regula-
tions which shall have been established by common agreement, in
conformity with the principles above declared, each of the Con-
tracting Powers shall have the right to station, at all times, Two
Light Vessels at the Mouths of the Danube."
In 1865, the European Commission created by the treaties (Sec
Vol. XII, Hertslet's "Treaties," p. 884) having succeeded "after
nine years' work in realizing important improvements in the sys-
tem of navigation notably, by the construction of two piers at
the mouth of the Sulina branch, which have had the effect of
admitting into this embouchure vessels of a large draught of
water by the execution of works of correction and cleansing in
the course of the same branch - by raising wrecks, and establish-
ing a system of buoys — by the erection of a lighthouse at the
mouth of the St. George-by the institution of a regular life
boat service, and by the creation of a seaman's hospital at Sulina
lastly, by the provisional regulation of the different services
connected with the navigation between Isaktcha and the sea;" the
Powers, representing Great Britain, Austria, France, Italy, Prus-
sia, Russia and Turkey, do ratify and establish the rights of the
parties by the succeeding articles. Article I provides that all the
works and establishments "shall continue to be devoted exclu-
sively to the use of the navigation of the Danube, and can never
REPORT OF PORT AND HARBOR COMMISSION
203
be turned aside from this object for any motive whatever; to this
end they are placed under the guarantee and protection of inter-
national law.” By the same Article, the European Commission
"shall continue charged, to the exclusion of all interference what-
ever, to administer these works and establishments for the advan-
tage of the navigation, to watch over their maintenance and pres-
ervation, and to give to them all the development that the require-
ments of the navigation may demand." By Article II there is
specially reserved to the European Commission, or to the
authority that shall succeed it, the power to design and cause to be
carried out all the works that may be deemed necessary, in the
event of its being wished to render permanent the improvements,
until now of a temporary character, in the branch and at the
mouth of the Sulina, and to prolong the piers at this mouth accord-
ing as the state of the Bar Channel may require it."
(6
By Article VI it is provided" that on neither bank of the river,
either in the port of Sulina or St. George, shall there be con-
structed either by the territorial authorities, by commercial or
navigation companies, or by private individuals, any landing jet-
ties, quays, or other establishments of the same nature, of which
the plans have not been communicated to the European Commis-
sion, and recognized as being in conformity with the general plan
of the quays, and as tending in no wise to compromise the effect
of the works of improvement.
""
By Article VIII administrative power is vested in an Inspector
General of the Lower Danube and the Captain of the Port of
Sulina. Annexed to these articles is a code governing the policing
of the Sulina Roads and Port, regulations for vessels crossing and
passing one another, towage rules, discharge of ballast, lighterage,
etc., etc., with a chapter of penalties resembling a very substantial
section of our Penal Code. Phillipson and Buxton (“The Ques-
tion of the Bosphorus and Dardenelles," p. 245) say that this
institution is "unprecedented in international law and usage
and is "a kind of European syndicate, enjoying practically full
independence and exercising many functions attaching to sover-
eignty." Demorgny, a French writer ("La Question du Dan-
ube," Paris, 1911, p. 176) also refers to this Commission as a
sort of temporary embodiment of sovereignty granted to it in the
""
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REPORT OF PORT AND HARBOR COMMISSION
interest of humanity in general, having administrative, executive,
legislative and judicial power. Say Phillipson and Buxton:
"Indeed
in many respects [it] is in the position of an
autonomous State." It is not amenable to the jurisdiction of
Rumania, through whose territory it goes. It may negotiate
without intermediary with neighboring States. It has a treasury
derived from the tolls which it collects for the use of the works
which it has built. It publishes its budget in every country that
it represents. It possesses a flotilla which flies its own distinctive
flag. It may contract loans and dispose of lands. It is both a
deliberative and an executive body. It has the power to examine
any matter whatever relating to navigation on the Danube and
legislates police regulations, shipping rules, tariff scales, plans of
necessary works, etc., and its resolutions carried by a majority of
votes, become law. As an executive body it carries its own deci-
sions into operation. To accomplish this, it employs a staff of
specialists. It punishes violations of its own rules and regula-
tions, and as a supreme tribunal reviews the judgments pro-
nounced by the Navigation Inspector or the Superintendent of the
Port of Sulina, who are the judges of first instance. The light
vessels of the Powers stationed at the mouth of the Danube are the
police force to secure the execution of the legislative, executive
and judicial decisions of this Commission.
In 1865, as we have seen, the works and establishments of the
Commission were declared to be neutralized so as to be immune
from attack in case of war. At the Conference in Paris in 1866,
its term was extended for five years. By the Treaty of London,
1871, Russia was allowed to maintain a fleet in the Black Sea, but
the neutrality of the European Commission was protected by
additional guarantees. Its powers were then extended, also, for
twelve years. In the Russo-Turkish War of 1877, the operations
of the belligerents interfered with the free navigation of the
Danube, and complaints were made against them, but it seems to
have been held that the transactions relating to the river did not
entirely make of it a neutral zone and imposed upon belligerents
merely the duty to respect the works and establishments of the
Commission, to impede the navigation as little as possible, and to
restore it as quickly as possible in case of any interference with
REPORT OF PORT AND HARBOR COMMISSION
205
it. Nevertheless, by a Treaty of Berlin of 1878, all fortresses
between the Iron Gates and the sea were to be demolished, no
new ones were to be constructed, and within these limits no war-
ships other than light vessels used for police and custom purposes
were to navigate the river. At this time Rumania, having been
made independent, was given representation in the Commission
and its sphere of operations was extended to Galatz. By the sub-
sequent treaties of 1883 and 1904, the authority of the Commis-
sion was renewed and enlarged. By the Treaty of 1904, provision
was made for its continuance for successive periods of three years,
but to each of the eight States represented the right was reserved to
dissolve the treaty by giving notice a year before the termination
of the triennial period.
፡፡
This great institution of Europe, supported by these several
solemn treaties and by international law, has been treated by
Germany with a contempt equal only to that which she has paid
to similar treaties and institutions. Having subjugated Rumania,
she negotiated a peace" by which she eliminated entirely the
Entente Powers from any further participation in the Danube
Commission, changed the Commission into the "Danube Mouth
Commission," continuing it "as a permanent institution with the
powers, privileges, and obligations hitherto appertaining to it,"
but limiting its organization to "representatives of the States
situated on the Danube or the European coasts of the Black Sea."
(See Treaty of Bucharest, signed May 7, in "The New
Europe," Vol. VII, No. 85, May 30, 1918, at p. 166.) On the
19th of May the Entente Ministers informed the Rumanian Gov-
ernment that they did not recognize that portion of the treaty
which dealt with the navigation of the Danube (Idem, p. 166).
Nevertheless, even Germany recognizes the principle and effective-
ness of internationalization of ports and rivers in this Treaty of
Bucharest. The system and method is continued, though the
participating Powers are changed.
Sir Charles Hartley, Chief Engineer of the European Danube
Commission from 1856 to 1907, in a paper contributed to the
Institution of Civil Engineers in 1873 (Vol. XXXVI) (See
Encyclopædia Britannica, 11th edition, title "Danube," p. 822)
gave a graphic description of the state of the Sulina mouth when
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REPORT OF PORT AND HARBOR COMMISSION
the Commission began its work in 1856. "The entrance to the
Sulina branch," said he, "was a wild open seaboard strewn with
wrecks, the hulls and masts of which, sticking out of the sub-
merged sandbanks, gave to mariners the only guide where the
deepest channel was to be found. The depth of the channel
varied from 7 to 11 feet, and was rarely more than 9 feet.
“The site now occupied by wide quays extending several miles
in length was then entirely covered with water when the sea rose
a few inches above ordinary level, and that even in a perfect calm;
the banks of the river near the mouth were only indicated by
clusters of wretched hovels built on piles and by narrow patches of
sand skirted by tall weeds, the only vegetable product of the vast
swamps beyond.”
(6
Prior to the time when the great improvements were made an
average of only 2,000 vessels, with a tonnage capacity of 400,000
tons, visited the Danube, and of this number more than three-
fourths loaded either the whole or part of their cargoes from
lighters in the Sulina roadstead, where, "lying off a lee shore,
they were frequently exposed to the greatest danger." "Ship-
wrecks," says Sir Charles Hartley, were of common occurrence,
and occasionally the number of disasters was appalling. One
dark winter night in 1855, during a terrific gale, 24 sailing ships
and 60 lighters went ashore off the mouth and upwards of 300
persons perished." The method by which all of the improvements
have been made was by levying tolls upon the vessels entering the
Danube. By the Treaty of Galatz, April 30, 1868, Great Britain,
Austria, France, Italy, Prussia and Turkey agreed to contract a
loan for the completion of the works at Galatz. This loan was not
to exceed £135,000. This loan was made September 29, 1868,
through Messrs. Bischoffsheim and Goldschmidt, and was paid
off in full prior to January 15, 1884, all the nations interested in
guaranteeing the loan being thus relieved of further liability.
(See Declaration by Percy Sanderson, Her Majesty's Commis-
sioner for the Danube, Vol. XVII, Hertslet's "Commercial
Treaties," p. 1039.) The Commission now has an average annual
income of about £80,000 derived from taxes paid by ships when
leaving the river. The normal annual expenditure amounts to
£56,000, while £24,000 is generally allotted to extraordinary
REPORT OF PORT AND HARBOR COMMISSION
207
works, such as new cuttings. (See Encyclopaedia Britannica,
11th edition, title "Danube," p. 823.) Between 1857 and 1905
over one and three-quarter million pounds sterling were spent on
engineering works, including the construction of quays, light-
houses, workshops and buildings, and from being a collection of
mud hovels Sulina has grown into a town of 5,000 inhabitants, has
a well organized hospital where all merchant sailors receive
gratuitous treatment, and has lighthouses, quays, floating eleva-
tors and an efficient pilot service, which all combine to make
Sulina "a first-class port." (See Encyclopædia Britannica, 11th
edition, title “Danube," p. 823.)
66
Other Examples of International Government
Reinsch, in his "Public International Unions" (Ginn & Co.,
1911), says:
the realm of international organization is
an accomplished fact." (Introduction, p. 4.) At that time (1911)
there were already in existence over forty-five public international
unions composed of States, of which thirty are provided with
bureaus or commissions. These include unions for postal and
telegraphic communications, and for improvement in the means
and methods employed by them. "International co-operation,"
says Reinsch, "has become an absolute necessity to States, along
all the various lines of national enterprise." Again (p. 137),
Reinsch says:
"International co-operation may, in the present
state of our civilization, be represented as an ethical duty. No
State has the right, by stubborn aloofness,
to exclude
its citizens from the advantages of civilization. But this ethical
duty is reenforced by a very practical necessity, which is plain to
any common-sense administration.”
"International Government" (1916), a recent book written for
the purpose of establishing the practicability of an international
authority to settle points of difference among nations, consists of a
study made by L. S. Woolf and a committee of the Fabian Society,
with an introduction by Bernard Shaw. Part II gives many
examples of the internationalization of administration, reviewing
the theory and experience of the Universal Postal Union, the Tele-
graphic Union, the international control of wireless, of railways,
of other means of communication, the international regulation of
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REPORT OF PORT AND HARBOR COMMISSION
public health and the prevention of epidemic diseases, of interna-
tional monetary unions, sugar commissions, etc., etc.
It would unduly lengthen this report to discuss in detail the
various legal phases of the instrumentalities that have been devised
by governments, legislative, executive and judicial, to effect a com-
mon purpose. It has not been the purpose to make a complete
resumé of all precedents upon the subject, but to make clear the
legal theory and to cull those special precedents that have value in
the framing of our interstate treaty and, in addition, perhaps fix
guideposts for the determination of legal controversies that may
hereafter arise.
The Enforcement of an Interstate Treaty
The private client about to enter into an agreement asks his
lawyer how it may be enforced. The sovereign States in this situ-
ation may properly ask: "If we enter into such a treaty, how is it
enforcible?" So far as immediate pecuniary obligation is assumed,
it is confined (Article XIV) to equal annual appropriation of such
sum as the Commission and the two Governors may recommend to
the Legislatures. But in the future, it is reasonably certain that
the Legislatures will desire to vest the Port Authority with power
to incur obligations mutually binding upon each State. Happily,
neither State need resort to war to enforce the obligations of a
compact between them. The treaties between two States who are
members of the Federal Union are not mere scraps of paper."
(6
By the compact between Virginia and West Virginia for the
purpose of constituting the area of the State of West Virginia, the
new State, coincident with its existence, became bound for and
assumed to pay its just proportion of the previous public debt of
Virginia. A compact was made with the approval of Congress.
In 1906, West Virginia having failed to pay its share of this debt,
suit was brought in equity in the United States Supreme Court
and judgment rendered in 1915 for $12,393,929.50, with interest.
(See 234 U. S. 117, 58 L. ed. 1243, 34 Sup. Ct. Rep. 889.) West
Virginia having failed to pay this judgment, a petition was pre-
sented by the State of Virginia to the United States Supreme
Court for a writ of mandamus to compel the levy of a tax by the
Legislature of West Virginia to meet the amount thus adjudicated.
REPORT OF PORT AND HARBOR COMMISSION
2,09
The United States Supreme Court in its recent decision in Vir-
ginia v. West Virginia (246 U. S. 565) holds that the Federal
Supreme Court has power to enforce by appropriate proceedings a
judgment rendered against a State by that Court in the exercise of
its original jurisdiction of controversies, and that, notwithstanding
the rights reserved to the States by the Federal Constitution, the
United States Supreme Court may exert authority over the govern-
mental powers and agencies possessed by the State to the extent
necessary to discharge the State's obligation. In this case, Chief
Justice White reviews the early history of the formation of the
Constitution of the United States and the reasons for delegation of
power to the United States Supreme Court to settle controversies
between the States. He considers two questions: (a) The power of
Congress to legislate to secure the enforcement of a contract be-
tween two States; and (b) the appropriate remedy which may, by
the judicial power, be exerted to enforce the judgment. He says:
The vesting in Congress of complete power to control agreements
between states, that is, to authorize them when deemed advisable
and to refuse to sanction them when disapproved, clearly rested
upon the conception that Congress, as the repository not only of
legislative power but of primary authority to maintain armies and
declare war, speaking for all the states and for their protection,
was concerned with such agreements, and therefore was virtually
endowed with the ultimate power of final agreement which was
withdrawn from state authority and brought within the Federal
power. It follows as a necessary implication that the power of
Congress to refuse or to assent to a contract between states carried
with it the right, if the contract was assented to and hence became
operative by the will of Congress, to see to its enforcement.
66
66
Having thus the power to provide for the execution of the
contract, it must follow that the power is plenary and complete;
limited, of course, as we have just said, by the general rule that
the acts done for its exertion must be relevant and appropriate to
the power. This being true, it further follows, as we have already
seen, that by the very fact that the national power is paramount in
the area over which it extends, the lawful exertion of its authority
by Congress to compel compliance with the obligation resulting
8
210
REPORT OF PORT AND HARBOR COMMISSION
""
from the contract between the two states which it approved is not
circumscribed by the powers reserved to the states.'
"Indeed,”
says Judge White, "the argument that the recognition of such a
power in Congress is subversive of our constitutional institutions
from its mere statement proves to the contrary, since at last it
comes to insisting that any one state may, by violating its obliga-
tions under the Constitution, take away the rights of another, and
thus destroy constitutional government. Obviously if it be con-
ceded that no power obtains to enforce as against a state its duty
under the Constitution in one respect, and to prevent it from doing
wrong to another state, it would follow that the same principle
would have to be applied to wrongs done by other states, and thus
the government under the Constitution would be not an indis-
soluble union of indestructible states, but a government composed
of states each having the potency with impunity to wrong or
degrade another, a result which would inevitably lead to a
destruction of the union between them." And Judge White
reminds West Virginia that to maintain the proposition which it
now urges "would compel a disregard of the very principles
which led to the carving out of that state from the territory of
Virginia; in other words, to disregard and overthrow the doc-
trines irrevocably settled by the great controversy of the Civil
War, which, in their ultimate aspect, find their consecration in the
Amendments to the Constitution which followed." Which state-
ment, coming from a Civil War veteran who wore the gray, is
pregnant with meaning. The Court decides that whether Con-
gress shall go first in providing for the enforcement of the com-
pact, or whether the Supreme Court shall act in the first instance,
it reserves for further consideration, and that branch of the sub-
ject it sets down for discussion at the next term (the one just past).
Nevertheless, it gives what may be regarded as a very broad hint
to West Virginia that the Court is "fain to believe," having deter-
mined "the right judicially to enforce by appropriate proceedings
as against a state and its governmental agencies" and "the con-
stitutional power of Congress to legislate in a twofold way
((
""
that if we refrain now from passing upon the questions stated,
we may be spared in the future the necessity of exerting compul-
sory power against one of the states of the Union to compel it to
REPORT OF PORT AND HARBOR COMMISSION
211
discharge a plain duty resting upon it under the Constitution.”
Besides, says Judge White, even assuming " that both the require-
ments of duty and the suggestions of self-interest may fail to bring
about the result stated," the Court nevertheless thinks, because of
"the character of the parties and the nature of the controversy,-
a contract approved by Congress and subject to be by it enforced,
we should reserve further action in order that full opportunity
may be afforded to Congress to exercise the power which it
undoubtedly possesses."
This would seem to be a full and adequate indication of what
Congress or the United States Supreme Court or both may do to a
State which refractorily refuses to meet its solemn obligation to
another, and in this respect it is always important to bear in mind
that, by the Constitution itself, there is a grant of judicial power
to the United States Supreme Court by the respective States,
which power is one of original jurisdiction. The States waive
their exemption from judicial power as sovereigns of original
inherent right by their own grant of its exercise over themselves
in such cases, a power which they would not grant to any inferior
tribunal. By this grant, the United States Supreme Court
acquired jurisdiction over the parties by their own consent and
delegated authority as their agent for exercising the judicial power
of the United States in the cases specified. (See Rhode Island v.
Massachusetts, 12 Peters 725, 9 L. ed. 1233.) (In footnote 3 to
the decision in Virginia v. West Virginia is a list of litigations
between States which have come before the Supreme Court of the
United States.)
State Limitations Upon Borrowing Capacity
The Constitution of the State of New York limits the borrowing
capacity of the City of New York, and the Constitution of the
State of New Jersey limits the borrowing capacity of the State.
By Article 4, Section 6, paragraph 4, of the New Jersey Constitu-
tion, the Legislature may not in any manner create any debt or
liability of the State exceeding $100,000 without the previous
approval of the people at a general election. This provision the
courts of New Jersey have held has no application to local or
municipal indebtedness. Van Cleve v. Passaic Valley Sewerage
212
REPORT OF PORT AND HARBOR COMMISSION
Commissioners, 71 N. J. L. 183 and 574, 58 Atl. R. 796, 60 Atl. ·
R. 214. See also People v. Flagg, 46 N. Y. 401, 406; Cass v.
Dillon, 2 Ohio St. 607, 613; Clark v. City of Janesville, 10 Wis.
136; Bushnell v. Belvit, Id. 195, 211; Pattison v. Board of Super-
visors, 13 Cal. 175, 182; Cooley on Constitutional Limitations
(7th ed.) 325.
The capacity of the new Port authority, as a body corporate or
politic, to borrow money is not limited, therefore, by the constitu-
tional limitations on the borrowing capacity of the State of New
Jersey or the City of New York. The argument that this is to
create a power which the State itself does not possess is completely
disposed of by Paine, J., in Clark v. City of Janesville, 10 Wis.
136, at pp. 172, 173: "The State may have power to grant a
power, and at the same time not have power to execute it. This
is clearly shown by reference to this very prohibition [constitu-
tional debt limitation] against its being a party in carrying on
internal improvements. No one doubts that it may authorize a
railroad company to build a railroad. But it could not build one
itself. And is that deriving power from a source where it does not
exist? Clearly not. Because the State has the power to grant the
authority, and is prohibited only from being itself a party in its
execution. The difficulty with this objection is, that it confounds
the power of granting a right, with the power of being a party to
its exercise; whereas the two are essentially distinct.”
Conclusions
From all of which it would appear that the States of New Jersey
and New York may join in the consummation either of an original
treaty, or, preferably, one amendatory of and supplementary to
the Treaty of 1834, preserving in full the sovereignty of each
State, but pledging each to the other perpetual co-operation in the
development of the port which is common to both. For the pur-
pose of carrying out the comprehensive development of the port,
they may create an agency vested with as little or as great power
as it shall please the States to grant. Included in this power is
the power to take and hold real estate, to construct, maintain and
operate every conceivable kind of terminal facility, and to regu-
late, within the limitations arising from the paramount power of
REPORT OF PORT AND HARBOR COMMISSION
213
Congress, and to govern the operation of such facilities. Such a
body may be authorized to borrow money upon the credit of the
States, to the extent that each State is willing to pledge its credit
or to borrow upon its own credit. Upon its acquisition of prop-
erty, it may itself hold and operate it or lease it to private enter-
prise upon satisfactory terms. It can receive grants of the power
of eminent domain which each State possesses. It can receive
power from Congress to the extent that it pleases Congress to grant
power, and like the United States towards the Panama Canal, the
two States may declare that they create and hold all of these
powers and properties under a sacred trust- for the benefit of the
nation as a whole.
It is clearly feasible to leave municipal power where it now
resides, and is essential, as we have seen, not to disturb those prop-
erty and contractual rights which are protected by the Federal
Constitution. Without disturbing private grants or the rights of
municipalities, the great power of the States to regulate may be
exercised in the interest of promoting navigation and commerce.
In short, the underlying principles governing such action on the
part of the two States may be regarded as fairly well settled, and
the problem largely one of details and form. The time has come
indeed, is already here — when the need for constructive planning
is imperative.
It would be a mistake, however, to take for granted that the
public generally that even members of the legal profession
generally — in both States will be prepared to aid in the formula-
tion of such a treaty without the assistance of a preliminary sur-
vey of legal theory and precedents bearing upon the problem.
Dated, New York, December 2, 1918.
JULIUS HENRY COHEN,
Counsel.
214
Commis-
sion
created;
duties.
REPORT OF PORT AND HARBOR COMMISSION
APPENDIX C
LEGISLATION ESTABLISHING THE
COMMISSION
Laws of 1917 of the State of New York
CHAPTER 426.
An Act to establish a commission to act jointly with
a similar Commission of the State of New Jersey in
the investigation of Port conditions at the Port of
New York and to submit a comprehensive report
recommending the proper policy that shall be pur-
sued for the best interests of the entire Port of New
York, and the legislation, State and Federal, that
will be necessary to make such recommendations.
effective, and making an appropriation for the
expenses of said Commission.
Became a law May 8, 1917, with the approval of the Governor.
Passed, three-fifths being present.
The People of the State of New York, represented
in Senate and Assembly, do enact as follows:
Section 1. The Governor shall appoint three Com-
missioners who shall have power on the part of the
State of New York to meet Commissioners appointed,
or who may be appointed, under or by virtue of a law
of the Legislature of the State of New Jersey, to
negotiate or agree upon a joint report, recommending
a policy to be pursued by the State of New York, the
State of New Jersey and the United States by legisla-
tive enactment or treaty or otherwise, to the end that
said Port shall be efficiently and constructively organ-
ized and furnished with modern methods of piers, rail
and water and freight facilities and adequately pro-
tected in the event of war. Before making such report,
such Commission shall make a thorough investigation
of Port conditions in this country and shall take and
employ such engineering, legal or other professional
skill and assistance as it may need for the effective
working out of a comprehensive and adequate inter-
REPORT OF PORT AND HARBOR COMMISSION
215
state and Federal Port policy, to meet commercial
needs in times of peace and the protection of the har-
bor and adjacent localities in times of war.
no com-
and
§ 2. The Commissioners appointed pursuant to the Expenses;
provisions of this act shall be paid the necessary ex- pensation.
penses incurred in the performance of their duties,
but shall serve without compensation. They shall select
one of their number as Chairman and may employ a Chairman
Secretary and such other assistants as are needed in the employees.
performance of their duties. The sum of twenty-five
thousand dollars ($25,000), or so much thereof as may
be necessary, shall be hereby appropriated out of any
moneys in the State treasury not otherwise appro-
priated, for the expenses of the Commission. The
moneys hereby appropriated shall be paid out by the Appro-
State treasurer on the warrant of the comptroller upon
vouchers audited by the Chairman of the said Com-
mission.
§ 3. This act shall take effect immediately.
priations.
Laws of 1917 of the State of New Jersey
CHAPTER 130.
An Act to establish a Commission to act jointly with
a similar Commission of the State of New York in
the investigation of Port conditions at the Port of
New York, and to submit a comprehensive report
recommending the proper policy that shall be pur-
sued for the best interests of the entire Port of New
York; and the legislation, State and Federal, that
will be necessary to make such recommendations
effective; and making an appropriation for the
expenses of said Commission.
BE IT ENACTED by the Senate and General Assem-
bly of the State of New Jersey:
sion to in-
1. The Governor shall appoint three Commissioners Commis-
who shall have power on the part of the State of New vestigate
Jersey to meet commissioners appointed, or who may conditions.
be appointed, under or by virtue of a law of the Legis-
Port
216
REPORT OF PORT AND HARBOR COMMISSION
Duties.
Expenses
met.
Officers
and
assistants.
Appro-
priations.
lature of the State of New York, to negotiate or agree
upon a joint report recommending a policy to be pur-
sued by the State of New Jersey, the State of New
York and the United States by legislative enactment or
treaty or otherwise, to the end that said Port shall be
efficiently and constructively organized and furnished
with modern methods of piers, rail and water and
freight facilities, and adequately protected in the event
of war.
Before making such report such Commission
shall make a thorough study of Port conditions in this
country, and shall take and employ such engineering,
legal or other professional skill and assistance as it
may need for the effective working out of a compre-
hensive and adequate interstate and Federal Port
policy, to meet commercial needs in times of peace and
the protection of the harbor and adjacent localities in
times of war.
2. The commissioners appointed pursuant to the pro-
visions of this act shall be paid the necessary expenses
incurred in the performance of their duties, but shall
serve without compensation. They shall select one of
their number as Chairman, and may employ a Secretary
and such other assistants as are needed in the perform-
ance of their duties. The sum of seven thousand five
hundred dollars ($7,500), or so much thereof as may
be necessary, is hereby appropriated out of any moneys
in the State treasury not otherwise appropriated, when
included in any supplemental appropriation bill; and
the sum of ten thousand dollars ($10,000), or so much
thereof as may be necessary, is hereby appropriated out
of any moneys in the State treasury not otherwise
appropriated, when included in any annual appropria-
tion bill, for the expenses of the Commission. The
moneys hereby appropriated shall be paid out of the
State Treasurer upon warrant of the Comptroller, upon
vouchers signed by the Chairman of the said Com-
mission.
3. This act shall take effect immediately.
Approved March 26, 1917.
UNIVERSITY OF MICHIGAN
3 9015 07373 9230