The opinion
Minturn, J.
Concurring in the views expressed by Mr. Justice Swayze, I am led to oppose this grant by the riparian commissioners upon the further ground that the only tenable view which its supporters advance to uphold it in a court of law against collateral attack is based upon the assumption that somewhere between the lines of the legislation affecting this commission there exists in view of the general power conferred to sell riparian lands, a power “tantamount to an adjudication” to determine whether or not the lands so conveyed are part of the natural oyster grounds of the state. But manifestly if it can be demonstrated that the power to make such an adjudication has been expressly vested by the legislature, not in the riparian commissioners, but in an entirely distinct, independent and co-ordinate commission, it must be perceived that the syllogism upon which such a claim is constructed is entirely fallacious.
In 1888 the legislature, for the protection of the great oyster industry of the state, and as a sequence to the consistent protective legislation which had its genesis in the year 1846 (Act for the protection of clams and oysters, approved April 14th, 1846), and which has been supplemented by legislation almost annually since, enacted that “No grant or lease of lands under tidewaters wherein there are natural oyster beds shall hereafter be made by the riparian commissioners of this, state except for the purpose of building wharves, bulkheads and piers.” Pamph. L. 1888, p. 140.
This act declared a legislative public policy relative to these lands, and was equivalent to a declaration, that a conveyance of the natural oyster beds of the state, excepting as indicated *431 in tlie excepting clause of the act, should be invalid, and ipso facto void.
It is significant that in no instance where the legislature has undertaken to deal with legislation enlarging or supplementing the powers of the riparian commissioners, do we find any intent, express or implied, that their duties shall extendió a determination tantamount to an adjudication, regarding the location of natural oyster beds; and it is a logical and legal inference that if the legislature intended to repose that power in these commissioners it would have so expressed itself. But per contra we find that in 1893, in an act entitled “An act to promote the propagation and growth of seed oysters, and to protect the natural oyster beds of this state” (Pamph. L. 1893, p. 503), oyster districts were created, beginning with District No. 1, and terminating with District No. 7, and that in one of the districts thus enumerated were included the lands in controversy. The first section of the act provides “that the natural oyster beds shall be and they are hereby divided into seven districts, as follows: District No. 3, from (running river south to Rose’s Point; District No. 4, from Bose’s Point south to the division line between Atlantic county and Ocean county.” The second section of the act provides for the appointment of commissioners for the respective districts, who were required to take an oath lor the faithful performance of their duties; which by the third section were prescribed inter alia, to be the supplying of shells upon these grounds, for the purchase of which the state appropriated annually $5,000. Prom this appropriation the act appropriated the sum of $500 “for the mouth of Mullica river and adjacent waters, known as graveling oyster beds.”
The same act provides that “In the event that it may become necessary that any one particular district shall require a greater expenditure than above provided, the said commissioners, in meeting assembled, may determine the proportion to be allotted to such district.”
In 1899, by an act under a similar title, the legislature divided these lands under water into six districts, denominating them all “The natural oyster seed grounds of this *432 state.” Section 1. The centre line of Mullica river was made the division line between Districts Eos. 3 and 4, and three commissioners were appointed for the former districts and two for the latter. The act confers upon the commissioners powers substantially similar to those conferred by the act of 1893, and in its sixth section provides that “it shall be the duty of the said oyster commissioners to strictly enforce all existing laws regulating the natural oyster seed grounds of this state.” And concludes by appropriating the sum of $12,000 annually to meet the requirements of the act.
This legislation, manifesting in every section the dominant purpose of the legislature to protect this great natural industry, contains within its provisions a specific designation of the locus in quo as natural oyster beds, and vests in the oyster commissioners the power and duty to protect the lands and regulate their use. If the power be not vested in. these commissioners by this legislation to select and designate the natural oyster beds of the state, how can it be said, by mere constructive inference, that this power resides iji a commission created and designated for a purpose entirely distinct from and foreign to such a duty ?
Supplementing, in effect, the act of 1888, prohibiting sales of these lands as a declared public policy of the state, we thus have the distinct enumeration by the legislature and a description by natural boundaries of the natural oyster beds of the state, and the power is thereby vested in a distinct commission to perpetuate and protect the use of such lands. These acts, of'course, are public acts and must be judicially noticed in any determination of this question, and it must also be presumed that the oyster commissioners did their duty, and expended under the requirements of this legislation in seeding the lands the large appropriation annually made for that purpose by the state. These lands were thus segregated by legislative fiat from the great body of riparian lands, and the protecting arm of the legislature was thrown about them.
The United States Supreme Court under similar conditions, in dealing with government grants by federal agencies of timber, mineral and swamp lands that had been “reserved *433 from sale,” by acts of congress, lias held “that a patent may be collaterally impeached in any action, and its operation and conveyance defeated by showing that the department had no ¡jurisdiction to dispose of the lands; that the laws did not provide for selling them, or that they had been reserved from sale or dedicated to special purposes.” Wright v. Roseberry, 121 U. S. 488 ; Noble v. Union River Logging Co., 147 Id. 165; Rice v. Minneapolis Northwestern Railway Co., 1 Black (U. S.) 358; United States v. Stone, 2 Wall. 525 ; Polk v. Wendal, 9 Cranch 87 .
The record of this case shows that, upon the trial at the Circuit, Mr. Cole, the counsel for the state representing the attorney-general, made this offer: “We propose to show by this witness and by many others that the lands comprised within the grant from the riparian commissioners to the Sooys is natural oyster beds within the meaning of the amendment to the .Riparian act of 1888,” which testimony, upon objection by defendant’s counsel, was excluded, and an exception was entered to the ruling. The court thereafter, without the introduction of further testimony, directed the jury to find for the defendant, upon the ground that the deed of the riparian commissioners could not be attacked collaterally, to which ruling also exception was taken. These exceptions present the questions here discussed, and upon both questions the rulings were erroneous for the reasons here advanced. Had the proffered testimony been allowed it might have been shown that for generations a hardy race of seafaring men had made an independent existence from these beds, and that the existence of the beds was as notorious as was the beacon light at Barnegat, of which no state board dealing with the subject-matter could plead ignorance. It might have been shown that for many years the state had expended thousands of dollars developing this great industry under the public policy indicated in this legislation, and these facts might have been established by the oyster commissioners as well as by the members of the vicinage. But it may be asked here how could the riparian commissioners, when making a conveyance, distinguish oyster lands from other lands under
*434 tidal waters? The answer must be obvious. They as commissioners were supposed to know of the existence of the acts of the legislature upon this question. Side by side with them in legislative and legal contemplation was a co-ordinate commission constituted for the purpose of dealing with that very subject-matter, and entrusted, as these commissioners must have known, with the guardianship of this vast industry. Had they but knocked the door of this storehouse of information would have been opened to them. Had they but asked and confessed their ignorance they would have received the necessary information. But, in any event, neither their ignorance nor their negligence in the face of positive prohibitive legislation can breathe vitality into a grant of lands that had been both reserved from sale, and dedicated- to special use by express legislative enactment. Nor can I acquiesce in the scholastic refinement and subtlety of distinction found necessary. to differentiate the federal decisions in order to vindicate this grant, for the reason that, conceding the existence of this oyster legislation and its applicability to the case at bar, the question of construction cannot enter. The legislative intent in these acts is plain and leaves no room for construction, and in any case the rule is fundamental that he who seeks to maintain a claim in derogation of a public right can leave nothing to inference or conjecture. Black Int. L. 300; Sewall v. Jones, 91 Pick. 99 ; Water Commissioners v. City of Hudson, 2 Beas. 420; Black v. Delaware and Raritan Canal Co., 9 C. E. Gr. 455.
But argumentmn ab inconvenienti is invoked, and we are asked to support such grants upon a rule of constructive procedure which will accord them as is said: “Stability and value rather than that which will detract from, if not destroy such value by exposing them to constant collateral attack and invalidation by the verdict of juries of the vicinage.” I am not of those who share disquieting fears regarding the results of the jury system; for with Blackstone it can be said that “it is a system of trial that hath been used time out of mind in this nation, and seems to have been coeval with the first civil government thereof.” An institution, says De Lolme, that *435 is the “noblest invention for the support of justice ever produced.” An institution, remarks Hume, “admirable in itself and the best calculated for the preservation of liberty and the administration of justice that ever was devised by the wit of man.” Before the Twelve Tables of the Roman Law or the Pandects of Justinian were conceived, it found its genesis upon the banks of the Rhine and within the shadow of the round towers of Scotia Major, where the legions of the imperial Caesars beheld it flourishing. Tacitus Germanicus XII., Mooney’s Gaelic Laws, Ac. Against it the conspiring forces of feudal despotism hurled themselves in vain. Against it was pitted through centuries of scholastic controversy a theocratic order which inherited the jurisprudence of classic Greece and Rome, combined with an aristocracy of class prejudice, which labored steadfastly for its downfall. It has withstood the ruthless hand of the invader and the bloody scenes of internecine strife. It has survived the destruction of dynasties, and the wreck and ruin of empires, and stands to-day unique and indestructible in the modern jurisprudence of the world, the sheet anchor of every nation, wherever popular government can claim an advocate, and the hope of every citizen, wherever humanity can command a champion.
It may well be asked, therefore, why such an institution, entrusted as has been this immemorially, not only with the disposition of the property and sacred honor of a people, but with their very lives, should bo challenged in this day as a fit medium to determine conflicting claims in an action in ejectment — that their verdicts may vary must be expected where the facts are variant. That divers minds may vary upon a similar state of facts, is as demonstrable when applied to courts as when applied to jurors, as the decisions from the days of the year books will attest, except where the doctrine of stare decisis has compelled judicial consensus. But in any view of the jury system, as applied to civil procedure, the corrective power of the court in cases of passion, prejudice or unfair influence has invariably been extended to induce a result consistent with legal principles. And if an impartial jury of the vicinage cannot be procured, both common law *436 and statute provide for a change of venue. 1 Tidd. Pr. 654; Practice Act, § 203.
A misconception as to the function of a jury under this legislation, seems to prevail as a basis for the argument, for we find, it urged that the locus in quo must revert to the state “whenever the allegation of a plaintiff in ejectment, that such land was a natural oyster bed obtained the concurrence of a jury of the locality.” It is not the plaintiff’s view, nor yet the jury’s view, that under this legislation stamps the character of oyster lands upon the locus in quo. It is nothing less than the legislative fiat which existed at the execution of the grant, that such lands were and should remain inalienable that furnishes ratio decidendi for either — court or jury. This legislation, by metes and bounds, describes the lands; segregates them from the other lands of the state; and commands that they shall not he sold, but shall be denominated “natural oyster seed grounds of this state.” Pamph. L. 1899, p. 160, § 1.
Under this legislation no claim could be supported for the existence of oyster lands in the Hudson, the Passaic or the Hackensack rivers, and the court would properly prevent speculation in the matter, by controlling the verdict because these streams are not within the language of the act. But where, as in the case at bar, the legislation designates “the mouth of the Mullica river and adjacent waters known as graveling oyster beds,” as natural oyster beds, uncertainty vanishes, and the state was clearly entitled to the direction of a verdict upon the completion of the proffered proof.
But argumenium ab inconvenienti is further pursued, and it is urged that the state’s revenue.might be depleted; and that the revenue produced from sales of these lands is irrevocably applied to the support of free public schools. Logically considered, this contention might receive condemnation as a species of petitio principii; and legally it may be criticised as an argument of public policy for submission to the legislative branch of government, and therefore clearly coram non judice upon this argument. But it presents a misconception of the effect of the riparian legislation in this state.
*437 The act of 1869 creating the riparian commission appropriated such income, first to the administrative purposes of the commission, then to the payment of the state debt, and finally to the trustees for the maintenance of free schools. Pamph. L. 1869, p. 1017. The act of 1871 devoted such receipts to the support of free schools. Pamph. L. 1871, p. 98. The act of 1890 devoted them to the necessary expenses of the state (Pamph. L. 1890, p. 92), and the act of 1894 finally appropriated them to the support of free public schools. If the maxim of construction, contemporánea expositio est optima et fortissima in lege, is to apply, we have here presented to us a legislative declaration antagonistic to the present contention. The only authoritative deliverance in support of this notion is an opinion of the late Attorney-General Grey, but neither his language nor any inference that can reasonably be derived from his language will support the contention. Of course, under the constitutional provision upon this subject, the revenue now in hand, whether derived from this or any other source, cannot be diverted to other uses; but there is no authority for the assumption that either the revenue in futuro or the riparian lands eo nomine are irrevocably pledged to the support of any department of the state government. Against the contention for a public policy, which is construed to require a sale of these lands for revenue, rests the accusation that in so doing the state is parting with the birthright of its people for a mess of pottage. Buckle, in his “History of Civilization in England,” tells us that parliamentary agitation and legislation during fifty years prior to the time he wrote, was almost a continuous effort of the house of commons to regain and retrieve from class ownership not only the lost privileges of the people, but the lost highways, roads, greens and commons that form such a picturesque background to the history of early English rural life. And need we look beyond our own day in this land where the efforts of two administrations of the federal government have been directed to recovering lost forest, mineral and swamp lands, the common heritage of the nation? In the light of history it requires no exuberance of fancy to picture the dire *438 results to the state if the public policy inspired by this grant be adopted, as a result of -which this great natural industry, the prolific toiling-place of generations of independent self-supporting citizens shall be aliened forever, and they themselves evicted as completely and as effectually, by the mere presence and potency of the great seal of the state, as were the thrifty Highland crofters of Scotland under the great “Sutherland clearances” at Lochaber, when a whole people were swept into exile, to make way for sheep walks and pasture lands. As against a so-called public policy, that would ignore the independent existence and self-supporting happiness of a people, and set it in the balance as quid pro quo for what Tennyson calls the “Jingling of the guinea,” we may well invoke the condemnation of John Stuart Mill; “that when the inhabitants of a country quit it, because the government does not leave them room to live in it, that government is already judged and condemned.” From whatever aspect, therefore, we may view this grant, it is defenceless in law and insupportable in policy.
The court being equally divided in opinion, the judgment under review must be affirmed.
For affirmance — The Chancellor, Chief Justice, Garrison, Reed, Trenchard, Parker, Voorhees, Vredenburgh, JJ. 8.
For reversal — Swayze, Bergen, Minturn, Bogert, Vroom, Gray, Dill, Congdon, JJ. 8.