The opinion of the court was delivered by: Whitman Knapp, Senior District Judge.
On April 8, we filed an opinion denying the government's
motion seeking dismissal of the third-party complaint against
it. Thereafter we received a letter from the government in
further support of such motion. Construing that letter as a
motion for reargument, we grant it.
The letter includes citations to several cases which the
government accurately asserts contain language having a
bearing on the result at which we arrived: Central R.R. Co. of
N.J. v. Jersey City (1908), 209 U.S. 473, 28 S.Ct. 592, 52
L.Ed. 896 (Holmes, J.); People v. Central R.R. Co. of N.J.
(1870), 42 N.Y. 283; Tennant v. State Bd. of Taxes and
Assessments (1921), 95 N.J.L. 465, 113 A. 254; Ross v. Mayor
and Council of Borough of Edgewater (Sup.Ct. 1935), 115 N.J.L. 477,
180 A. 866, aff'd, 116 N.J.L. 447, 184 A. 810, cert.
denied, (1936), 299 U.S. 543, 57 S.Ct. 37, 81 L.Ed. 400; New
York Cent. R.R. Co. v. State Dep't of Taxation and Fin. (1948),
137 N.J.L. 288, 59 A.2d 859, aff'd (1949), 1 N.J. 298,
63 A.2d 268; Clarke v. Ackerman (1st Dep't 1935) 243 A.D. 446, 278
N YS. 75; Kowalskie v. Merchants & Miners Transp. Co. (Sup.Ct.
1947), 76 N.Y.S.2d 699. Had we been favored with these
citations before the case was argued, our opinion would
undoubtedly have been differently phrased. However, for reasons
that follow, we adhere to our stated conclusion.
The government's principal reliance, quite appropriately, is
on Justice Holmes's opinion in Central R.R. Co. of N.J. v.
Jersey City, which concededly contains language supporting the
government's position. However, the decision was an extremely
narrow one. As stated at the conclusion of the Justice's
opinion: "We are of the opinion that the land in question [i.e.
certain land lying between the middle of New York bay and its
low-water line on the New Jersey shore] is subject to the
sovereignty of the state of New Jersey, and that the exclusive
jurisdiction given to the state of New York does not exclude
the right of the sovereign power to tax." 209 U.S. at 480, 28
S.Ct. at 594 (emphasis added). It is, of course, axiomatic that
the right to tax is the very last thing it will be assumed that
a sovereign intended to relinquish. See Hoge v. Railroad
Co. (1878), 99 U.S. 348, 355, 25 L.Ed. 303 ("The power of
taxation is an attribute of sovereignty, and is essential to
every independent government. Stripped of this power, it must
perish."); see also Seton Hall College v. Village of South
Orange (1916), 242 U.S. 100, 106, 37 S.Ct. 54, 56, 61 L.Ed.
170; Wilmington & Weldon R.R. v. Alsbrook (1892), 146 U.S. 279,
294, 13 S.Ct. 72, 75, 36 L.Ed. 972.
Justice Holmes relied in part on Ferguson v. Ross (1891),
126 N.Y. 459, 27 N.E. 954, which also contains language favorable
to the government's present position. However, the decision
seems supportive of our original conclusion. The court,
construing the 1833 compact, upheld a penalty imposed upon
defendants who, in violation of a New York state statute, had
dredged materials into the New Jersey side of the Hudson
river. It would appear to us that a state's power to impose
criminal penalties on an individual would include the less
intrusive power to have that individual's tortious conduct
governed by the same state's law. Indeed, Justice Holmes
clearly recognized that the Ferguson decision was inapplicable
to the matter before him, observing: "Whether, in the case at
bar, some power of police regulation also was conferred upon
New York . . . need not be decided now." 209 U.S. at 479, 28
S.Ct. at 593.
In connection with our reading of Justice Holmes's opinion,
we must observe that the Justice, being a renowned apostle of
the law at its most practical, would hardly have been likely
to have knowingly rendered a decision making it necessary for
every person injured on Ellis Island to engage in litigation
to establish the exact spot on the island where the injury was
As to the other cases cited by the government, we simply
note that, although they contain language favorable to its
position, none of them (except the Special Term decision in
Kowalskie v. Merchants & Miners Transp. Co.) dealt with a
situation remotely comparable to the one at bar. Perhaps
special note should be taken of Justice Townley's opinion in
Clarke v. Ackerman (1st Dep't 1935), 243 A.D. 446, 278 N.Y.S.
75. That case involved an attempt by a plaintiff to obtain
long-arm jurisdiction over a defendant who had caused an
accident on the New Jersey side of the George Washington
Bridge. Although Justice Townley, in analyzing the compact, did
use language favorable to the government here, he observed that
at the time the compact was created "neither tunnels nor
bridges were in [the] minds" of the commissioners who entered
into it; and that "[i]t is possible to consider this bridge as
an `improvement' made to or on the shore of New Jersey under
article third, subdivision 2, of the treaty." We suggest that
if the framers had considered the possibility of similar
"improvements" made to or on the shore of Ellis Island, they
would have made similar provision for the extension of New
York's "present jurisdiction" over such improvements.
For the reasons stated, we adhere to our decision as filed.
However, it cannot be gainsaid that reasonable minds might
differ as to the weight that should be given to the various
dicta the government has cited. We therefore certify the
question to the Court of Appeals pursuant to 28 U.S.C. § 1292(b).
In this connection, we observe that this is the type
of litigation which usually settles as soon as the parameters
of legal liability are established. Accordingly, we can say
with some confidence that an immediate appeal would in all
probability materially advance the ultimate termination of the
action. Moreover, it seems to us of considerable importance
that the question the government raises have a definitive
The government's motion for reargument is granted. We adhere
to our decision, and, pursuant to 28 U.S.C. § 1292(b), certify
it to the Court of Appeals.
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