Gibbons v. Livingston

6 N.J.L. 287

• Court: Supreme Court of New Jersey
• Decided: November 15, 1822
• Status: Published

Opinion

Kirkpatrick, 0. J.

This is an action on the case, brought by the plaintiff to recover damages against the defendant for enjoining and restraining him from navigating, with his steamboat, the waters between the state of New Jersey and the state of New York. It is founded on the third section of the act entitled, “ A supplement to the act entitled an act to preservo and support tho jurisdiction of this state,” passed February 25, 1820. . "

This section is in these words, that is to say, " If any citizen of the state of New Jersey shall hereafter be enjoined or restrained by any writ of injunction,' or order of the Court of Chancery of the state of New York, by virtue, or ■under color, of any act of the legislature of that state, from navigating, with any boat or vessel moved by steam or fire, belonging or to belong, in part or in whole, to him, the waters between the ancient shores of the states of New Jersey and New York, the plaintiff or plaintiffs in such writ or order shall be liable to the person or persons aggrieved for all damages, expenses, and charges occasioned thereby, to be recovered, with triple costs, in an action of trespass, or trespass on the case,, in any court having cognizance thereof,” &c.

The cause was brought to trial at the Middlesex Circuit,in December last, when the plaintiff gave in evidence the acts of the legislature of the state of New York granting and securing to the persons therein named the exclusive privilege of navigating the waters of that state by steam ; the proceedings of the Court of Chancery there upon a bill filed by'the defendant against the plaintiff, complaining of an infringement of that exclusive privilege; a writ of injunction sued out by the order of that court, commanding the plaintiff to desist and refrain from navigating, with his steamboat, the waters in the bay. of New York and in the Hudson river, between Staten Island and Powles Hook, and, afterwards, by another order, limited to the waters of the bay of New York only, under the penalty of ten thousand dollars, until the further order of that court to the contrary ; and the service of that writ on the plaintiff some time in June, 1819, at Staten Island, in the state of New York. Pie also gave in evidence some other things, rather of a formal nature, and not here necessary to be mentioned. To this evidence the defendant demurred, and that demurrer is now subjected to the consideration of this court.

To support this demurrer, the defendant takes these three gi’ounds : — 1. That the enjoining and restraining, proved on the trial, was by an injunction sued out and served before the passing of this act; that the defendant has done no act or thing, since that time, to enforce that injunction, or carry it into effect, or in any way to enjoin or restrain the plaintiff thereby; and that, therefore, the plaintiff does not bring himself within the words of the act, which says, “ if any citizen of Now Jersey shall hereafter be enjoined or restrained by any writ,” &c.

2. That the enjoining and restraining proved on the trial, even though the injunction had been sued out and served after the act went into operation, would not be within the description and prohibition contained in it, because that injunction was not by virtue, or under color, of any act of the legislature of New York, but according to the ordinary course of proceeding of a court of chancery in the exercise of its ancient and essential jurisdiction, and so is not within the words of the act, “ an injunction by virtue, or under color, of any act of the legislature of New York.”

3. That the defendant being a citizen of the state of New York, and acting within that state and under its judicial authority, cannot be called in question, or subjected to damages, in another state for such act.

As to the first of these grounds. It is to be observed, that the operation of a writ of injunction is not confined to the time of its service, nor to any limited time afterwards, but continues until it is regularly dissolved by the authority under which it is issued. In this case, the plaintiff could not, at any time within the period complained of, navigate these waters, with his steamboat, without subjecting himself to an attachment for contempt; without subjecting himself to the imprisonment of his person and to the payment of the penalty expressed in the writ. Gan it be said, then, that he was not restrained during that whole period ; that he was not restrained, as well after the act went into operation as before ? It was not necessary that the restraint should commence after the act went into operation, in order to bring it within the words; if it continued afterwards, if the plaintiff was actually restrained afterwards, he is, in my view of the case, as clearly within the words of it as if the injunction had been sue'd out and served afterwards. The defendant was the party restraining; the injunction was in his hands; he kept it in operation ; he was continually acting; he was restraining every day ; and if he would have avoided the penalty of this act he must have removed the restraint, he must have dissolved the injunction.

As to the second ground. It must be admitted, that in order to entitle a citizen of New Jersey to an action under this section, the enjoining and restraining, spoken of, must be by a writ of injunction, or an order of the Court of Chancery of the state of New York, by virtue, or under color, of some act of the legislature of that state-; and it must be admitted, also, that the injunction in this case was not specially directed by any such act, but that it was sued out according to the usual course of the court in the exercise of its ancient and essential jurisdiction. But though this be so, yet it may be said,-I think, that it is by virtue, or under color, of these acts, or some one of them. They do not, it is true, grant a special power to issue an injunction upon the infringement of this exclusive privilege; the court, from time immemorial, had tliar power in all cases of that kind, and, therefore, stood in no need of such special grant in this particular one, but they do create the right, upon which that power is exercised ; it is by virtue of, or upon the strength of that right, thus created by these acts, that the defendant comes into that court to demand this writ; and it is by virtue of that right, and that alone, that the chancellor’ could grant it. And it is beyond all controversy, from the whole scope of the act, that it was in this light the legislature viewed it. They meant to prohibit, totally, the taking out of an injunction to secure this exclusive privilege against us. The injunction may, therefore, I think, fairly be said to-be by virtue, or upon the strength of these acts, or some one of .them. They lie at the bottom of the whole proceeding.

The third ground is, that a citizen of one state, acting within that state, and under its laws and judicial authority, cannot be called in question for such act in any other state.

This position would appear to me to be well founded in the constitution of the United States. The constitution declares, that full faith and credit shall he given, in each state, to the public acts, records, and judicial proceedings of every other state. These words, full faith and credit, in this clause of the constitution, so far as they apply to judicial proceedings, have been construed in this court, as well as in the Supreme Court of the United States, to imply full force and effect; that is, such force and effect as they have by law or usage in the state from whence they are taken.

Now, if this action had been brought in the state of New York, as well it might, and these judicial proceedings in the Court of Chancery had been given in evidence there, as they have been here, and the defendant had demurred to that evidence, could there be a doubt but that the demurrer must have been adjudged to be conclusive against the plaintiff? It must havo been so, even though erroneous, upon the principle, that the judgment of a court having jurisdiction of the subject matter must always be conclusive, until reversed upon error, or corrected upon appeal. And if so, how shall we avoid giving them the same force and effect here ? In ordinary cases, it would seem that there could be no doubt on this subject. If a citizen of New Jersey should be sued in New York upon an account for goods sold, or upon a bond or promissory note, or other matter of debt arising here, and should have judgment against him and execution upon his goods, and then should bring an action here to recover damages for the taking and detaining such goods, would any man say, that the judicial proceedings against him in the state of New York would not be conclusive against him here, would any man hesitate to say so, even if the state of New Jersey should, before that time, have passed an act giving an action to recover damages in such eases ? No man, it is thought, would hesitate to say so, because such act would be manifestly not only contrary to the spirit of the federal compact, but also to the very words of it, which have been already cited. What, then, is there in the case before us to vary it from the common case? If it should be said, that the laws of the state of New York granting this exclusive privilege, and excluding the steamboats of other states from their waters, are unconstitutional laws; or if it should be said, as the commissioners for settling with New York the eastern boundary of the state have said, that, independently of the constitution, all navigable rivers and arms of the sea are, in a certain sense, common to all , the citizens of the United States, for that all have a common right to their navigation, and á common right to sail through their waters, even though they cover the land of another state; or if ■ it should be said, that the law of the state of New York extending the boundary of that state, and assert- ■ ing its exclusive jurisdiction up to high water mark on our shores, and so carrying their exclusive privilege and jurisdiction into our territory, is wholly without color of right ; and that,-therefore, the judicial proceedings of the Court of Chancery of that state can never be admitted, either to establish and give effect to such unconstitutional laws, or to impugn and take away such common right, and least of all, to sanctify such encroachment upon our territory, and such usurpation of our sovereign authority. And if it should be admitted that all these things are so, (concerning which, however, I give no opinion at present) yet must it not be admitted, also, that the courts of that state have lawful jurisdiction of all questions arising on the laws of that state, subject only to an appeal to the courts of the United States; and that unless such appeal be actually made, their judgments must be final and conclusive, and have the sam & faith and co-edit, that is, the same force and effect here, as they would have had there ?

Whether the state of New York had or had not a right to grant this exclusive privilege; or in any way to regulate or restrain her commerce with other states; or to interdict their intercourse by water in any manner they might think lit; are questions arising under the constitution of the United States: for independent of that constitution there can be no doubt but they had such right; whether the enforcement of that exclusive privilege against the plaintiff, who is a citizen of New Jersey, is a violation of any common right which he might have had, independently of the constitution, to navigate the waters of that state, is a question arising between citizens of different states; so, also, of questions arising upon their law of boundary and jurisdiction, for every private controversy growing out of it must necessarily be, as it is here, between citizens of different states. So that in all the cases put, and in all the cases that can be put, so far as my imagination can carry me, the courts of Now York have’, upon these laws, unquestionable jurisdiction, subject to an appeal to tho courts of the United States; and if so, what reason can be offered that their judicial proceedings should not have full force and effect here as well as there ? The constitution of the United States expressly provides, that the judicial power shall extend to all controversies arising under tho constitution and laws of the United States; all controversies between two or more states, and between citizens of different states, or of the same state, claiming rights under different states; thus making provision and establishing tribunals for the determination of all controversies of this kind, and, indeed, of every kind which can arise between the different states, or the citizens thereof, and especially those which arise upon the constitution itself. Uan a state, then, which has agreed to this compact, and which has complete remedy in tho tribunals of justice thereby established, resort to measures of force ? can it, for every supposed injury, become its own judge, and retort such injury upon the supposed aggressor, or make recaptions or reprisals by way of indemnification ? What sort of a federal compact would this be, and how long could it possibly endure ?

To me it would appear, therefore, that the only constitutional mode of obtaining redress against these unconstitutional laws and judicial proceedings of the state of New York, and the acts done under them, if indeed they are unconstitutional, would be by appeal to the courts of the United States, where all questions of this kind may be settled by intelligent and disinterested judges, and all ground of controversy between different states, and the citizens thereof, be removed and taken away.

But notwithstanding the subject presents itself to my view in this light, yet inasmuch as it is understood that the chancellor, who is the judge in a co-ordinate court, over which this has no control, and to whom the execution of this act is specially and principally committed, has so far adjudged it to be a constitutional act, as to carry it into effect in sundry instances and to great extent; and inasmuch as it highly concerns the dignity of the republic, as well as the rights of private citizens, that the administration of justice should be uniform, and that the construction of the laws should be the same in all the courts, I have felt myself constrained to doubt the correctness of my own judgment, and to yield to that high authority.

I am willing, therefore, upon this ground to say,'that this demurrer must be overruled, and that judgment must be entered for the plaintiff.

Rossell J.

The constitutionality of the law of this state has been brought in question by the defendant, and this court, on that ground, strongly urged to stay its operation. This is always a question of the greatest delicacy and importance, bringing, perhaps, into mischievous collision the organized authorities of our country. The represntatives of a free people, elected to make laws for the regulation of their own conduct, as woll as that of their own constituents, know no limits to their authority but their own consciences and the constitutions of the United States and of New Jersey, and a law passed by them must be in direct violation of one or both these sacred charters ere'a court would be authorized to declare it void. Although it might be inclined to the opinion, that it was an infringement of the spirit of those instruments, this would be setting up the understandings of a few to that of the many, in a doubtful question, for doubtful it might well be considered when the collected wisdom of a whole country had, after clue deliberation, passed upon it, and declared, by a solemn public act, that it was within" the limits of their powers; and a court might with propriety be accused of,arrogantly assuming to themselves a superiority of intelligence and patriotism in setting up their own opinions in opposition to it, and thus defeat, perhaps, the operation of a beneficial public law. If we might be permitted to suppose a legislative body so regardless of their duty, their oaths, and the fundamental charters of their country as to wantonly violate them, there are but few courts, I trust, that would lend their aid to support a usurpation of power so unjust in itself, and so ruinous to our best interests. The subject matter of this law has been for many years, from time to time, before the legislators of this state, repeatedly discussed and acted upon, after due deliberation, and is not of a description that would at ail justify this court to stay its execution. It has, in principle, received the sanction of successive legislative bodies, composed of different members; has been put in execution by the Court of Chancery, and this court is bound, I conceive, to execute it on all proper occasions. But it is urged, that it is a direct violation of the constitution of the United States, as that declares, “ that full faith and credit shall be given, in each state, to the public acts and judicial proceedings of every other stateand that the defendant is now prosecuted in this court for putting in force, in New York, against the plaintiff, a public act of that state. But this clause of the constitution has been grossly misunderstood, not only in this, but in other states, if it compels us to submit our rights, our persons, nay the sovereignty of our states, to the unjust usurpation of a foreign legislature, who might be induced to pass a public act to their destruction. An officer of New York, under color of a law of that state, has served compulsory process, .on a citizen claiming the protection of this state, on our own shores. Was New Jersey to submit to this violation, under a plea, that full faith and credit was to-be given to a public act of New York ? I presume this will not be pretended. Nor will it be denied, that our legislature, (when, in 1807, they passed an act, called the mother act, to preserve the jurisdiction of this state, and making it highly penal to serve puch process) were fully justified in so doing in the opinion of every Jerseyman. So when New York, in effect, claimed the exclusive right and jurisdiction to all the waters'of New York bay and Hudson river. The. legislature of New Jersey, in 1811, by another act of that date, declared, "that whereas the state of New York does unjustly claim an exclusive jurisdiction over all the waters lying between the shores of the two states; and whereas the citizens of New Jersey have a full and equal right to navigate vessels or boars on all the waters lying as aforesaid, &c., therefore, if any citizen of this state should have his boat, moved by fire or steam, seized on' those waters, under color of any law of the state of New York, the party so injured might seize on any-steamboat belonging to a citizen of New York, lying and being in any river, creek, or bay,' the whole waters whereof are within the territorial jurisdiction of New Jersey, exclusive of New York, which boat should be forfeited, unless,” &c.

In 1813, in consequence of another law of New York, an act was passed in New Jersey more effectually to enforce that of 1811. In 1818, a supplement to the mother act of 1807 was passed, making it the duty of, and offering a reward to, the citizens of this state to apprehend all offenders against the first recited act. In all the foregoing, we see the labors of our legislature altogether on the defensive, following from time to time, and step by step, the previous laws and proceedings of New York, in defence of the rights of New Jersey, from what we deem the unjust pretensions and encroachments of New York; and, until these conflicting claims are decided against us by a competent judicial tribunal, it would be a dereliction of an imperious duty .should we abandon them. It is true, that by the law of 1807, the. exclusive jurisdiction of New Jersey is confined to the middle of the Hudson ; but-that law bv no means gives up the right of navigation on all the waters leading to and from the sea that it may bo necessary to pass and repass in order to the full and perfect enjoyment of a privilege so essential to our interests and happiness. This right we claim by the law of nature and of nations, as well as by grant from the duke of York to the proprietors of East Jersey,'in 1682, “ of the free use of all bays, rivers, and waters, leading unto, or lying between, New York, &c., and East Jersey, for navigation, free trade, fishing, or otherwise.”

The law, on the third section of which this action has been brought, was in force from the 1st of April, 1820, and enacts; ■" that if any citizen of New Jersey shall hereafter be enjoined or restrained by any writ of injunction, or order, of the Court of Chancery of New York, by. virtue, or under color, of any act of the legislature of that state, from navigating, with any boat or vessel moved by fire or steam, or Are, belonging to him, the waters between the ancient shores of Now York and New Jersey, the plaintiff in such writ or order' shall be liable to pay all damages sustained by the person aggrieved, with triple costs,” &e. This act, being in some degree penal in its nature, should be strictly construed, and it is incumbent on the plaintiff to bring himself within its express- provisions.

On the postea, it is returned, as proved by the plaintiff, “ that in March, 1820, his steamboat, the Bellona, was fitted out to run from New Brunswick to the port of New York, through and over the waters between the ancient shores of New Jersey and New York, lor the transportation of freight and passengers, and that he kept her so fitted from the 8th of May until the 5th of June, 1820; that from the 30th of March to the 5th April she was employed carrying passengers from New Brunswick to the Nautilus, when the captain of the latter refused to receive them, &c.; that from the-fifth of April to the 25th of June she was laid up, and not used; that on the 25th of April she began to run to the-steamboat Nautilus, at Staten Island, carrying passengers for New York; but that the intervening time, between the 8th of May, and the 5th of June, 1820, the plaintiff was restrained, by force of the said injunction of the defendant, from running his steamboat, the Bellona, into the port of New York, or any part of the bay of New York, although during that period he intended to pass with said boat from New Brunswick to New York, over the bay of New York, lying between the ancient shores of New York and New Jersey, if he had not been restrained by the injunction aforesaid.”' By the above proof it appears, that the plaintiff' complains, that from the, 8th of May to the 5th of-June, 1820, he was restrained, by an injunction .Obtained by the-defendant from the Chancellor of the state of New York, from running the Bellona from New Brunswick to the port-of New York, over the waters lying .between the ancient shores of the two states, for which he claims damages.

When the legislature of New Jersey passed the law of 1820, for the security of our citizens navigating the bay of New York and the waters between the ancient shores of the two states, .they did not intend any interference with the right of the state of New York to interdict an entrance into-her own ports, unless on such terms and in such manner as she by law had prescribed. New' Jersey, herself had so .often exercised a similar power, that she could not, with a shadow of propriety, dispute that power merely because it was exercised by a sisterstate, and that too after her own example. Nor have the legislature so, in terms, expressed themselves; nor could they, for a moment, doubt the right of New York to grant to whom she will the exclusive right of entering her own ports, in the manner prescribed for the advancement of a public good. If this right is denied to Now York, in vain may New Jersey search for that so repeatedly exercised by herself, both alike possessed of all the inherent rights of sovereignty, not yielded but in the manner set forth in the 'constitution of the United States ; neither presumes to assume a power over the other. Whilst contending about rights, each believing justly their own, they claim no superiority, nor acknowledge themselves inferior sisters of a great and happy confederation. Interest, duty, and good faith, in the most imperative terms, forbid it. If the plaintiff had confined himself, for the purposes of navigation, to the waters claimed by New York, there is no pretence that he would have been disturbed. Nay, it was stated on the argument, and not denied, that he run the Bellona to Powles Hook without interruption. But he expressly declares his purpose -was to enter the port of New' York, claiming a privilege by virtue of a law of this state, which was denied to the citizens of that. The gist of his complaint, and on which only he founds his claim to damages, arises altogether from his being restrained from carrying freight and passengers, in the Bellona, to and from that port. He, indeed, also states, that he was restrained from passing over the waters lying between the two states, but for what purpose did he desire this passage? Solely that his great object, a free entry into the port of New York, might be attained, and that too in open defiance of her laws. It is one thing, to merely navigate those waters ; another, to enter the port of New York. He connects these together, and we cannot disjoin them. His purpose, as respects New York, was an unlawful one; nor is it authorized by the law on which this action is brought, or any other law of this state. No word or sentence of the law of 1820 will'bear such a construction. Rut if, by an ingenious and forced construction, it could be said to imply a power, such as is demanded by the plaintiff, no court would believe that the legislature of New Jersey could have intended to commit so unprecedented a violation of the rights and sovereignty of a sister state ; and as it is the manifest intention of the law makers that gives a direction to courts, their decisions would be in conformity to that intention. Nay, if the law, in terms, had authorized the purposes of the plaintiff, we are not without authority to shew that our courts are bound not to execute a law repugnant to the. first principles of justice. 1 Black. Com. 91—“ If there arise out of a law, collaterally, any absurd consequences manifestly contradictory to common reason, they are, with regard to those consequences, void. Thus if an act of parliament gives a man power to try all causes within his manor of Dale, yet if a cause should arise in which he is a party, the act is construed not to extend to that, because it is unreasonable that any man should determine his own quarrel.”

It is laid down, as the law of nations, in Vattel 201-2, 215-17. “ Nations are forbid to hurt or offend any other nation, or in way create ■ disturbance or foment discord. Nothing is more opposite. to the duties of humanity, nor more contrary to the society which should be cultivated by nations, than offences or actions which give a just displeasure, that we should avoid them if possible. A few medals and dull jests against Louis XIV. occasioned a war which brought the United Provinces to the brink of ruin. It is a necessary consequence of the independence of nations, that all have a right to be governed as they may think proper, and none have the least authority to interfere in the government of another state, or set itself up as a judge of its conduct. Of all the rights that belong to a nation, sovereighty is the most precious, and that which others ought the most scrupulously respect if they would not do an injury.” These principles are classed, by that celebrated writer, amongst the perfect rights of nations.

New Jersey claiming, for the reasons before mentioned, a right to the navigation, flee trade, "fishing, &c., in the specified waters of New York, contends only for these, regulated by the general law, applicable to the subject matter she is in the exercise of, and not in defiance of all law. If, when under the colonial government of Great Britain, a subject of the colony of New Jersey had chosen to violate the revenue laws of New York, could he have set up, as a legal defence, the right of navigation, founded on the law of nations, the common law of England, or the grant from the duke of York ? Since the declaration of independence, and our total emancipation from the government of Great Britain, when each of the thirteen states became completely sovereign in its own right, could such an offender against the laws successfully claim an exemption by a pretension like that ? It will not, I presume, be cCntended, in either case, that the plea would have been of any avail. New York, then, became fully possessed of all the inherent rights of a sovereign power; and, unless in joining our great family compact she has surrendered these particular rights, she still retains them. I see nothing in the constitution of the United States that sanctions a belief that they are surrendered. Two sections of that instrument, only,, appear to bear on this subject; the one regulates commerce, the other secures to the citizens of all the states the rights of citizens in each individual state, but. no more. What is .prohibited to a citizen of an individual state, no citizen of another state can be justified in practicing there. New York, without contradiction or complaint, now has her port regulations established by law ; her wharf, river or bay regulations, her quarantine laws, &c.; can a citizen of New Jersey expect to enter her ports in direct violation of any, or all these, perhaps, in the pursuit of some supposed profitable speculation, and carry a mortal contagion into her ports and make desolate her capital. None can be hardy enough to support a proposition so absurd. Deeds for land, bonds or contracts under seal, are solemn instruments ; but if made in contradiction to the public policy or interest, or with unlawful intentions,- they are declared void. A man may have a 'right of way over my lands, but if he is using this right only for the avowed purpose, of burning my buildings, destroying my enclosures, or injuring my family, his right of passage will not avail him in an action, for that I had taken measures, without force, to prevent the completion of his nefarious object.

If we, as a people, by the universal law of nations, have no possible right to control or violate the laws of an unconnected independent sovereignty, as a member of a great confederacy established for the express purpose “ of a more perfect union to establish justice, ensure domestic tranquility, promote the general welfare, and secure the blessings of liberty to ourselves and, our posterity.” New Jersey is peculiarly bound by the strongest of all ties, self-preservation itself, to cleave to the constitution of the United States, as the sheet anchor of its existence as an independent power, and “ give full faith and credit to the’public acts and judicial proceedings of our sister states,” when not in violation of that independence; a contrary conduct, persisted in, would prostrate long settled public principles, founded on immutable justice, violate the laws and sacred charter of our confederacy, and jeopardize, not only the peace and happiness, but the very existence, of our republic.

The purpose of the plaintiff is openly avowed; to consummate that unlawful purpose only, was he desirous of navigating the waters between the two states. He declares, that he was restrained from its completion, not by force or violence, but by an injunction out,of chancery; and I cannot perceive any principle of law, justice, or public policy, that should entitle him to recover damages; and think, therefore, that judgment ought to be entered for the defendant.

Ford, J. concurred with the Chief Justice.

Demurrer overruled.