Atl. Coast Electric Ry. Co. v. Bd. of Pub. Util. Com'rs

• Citation: 99 A. 395,89 N.J.Law 407
• Parties: ATLANTIC COAST ELECTRIC RY. CO. v. BOARD OF PUBLIC UTILITY COM'RS et al.
• Decision Date: 01 December 1916
• Court: New Jersey Supreme Court

99 A. 395

89 N.J.Law 407

ATLANTIC COAST ELECTRIC RY. CO.

v. BOARD OF PUBLIC UTILITY COM'RS et al.

Supreme Court of New Jersey.

Dec. 1, 1916.

(Syllabus by the Court.)

Certiorari, on application of the Atlantic Coast Electric Railway Company to review an order of the Board of Public Utility Commissioners as to rates in the borough of Bradley Beach. Order set aside.

Argued June term, 1916, before GUMMERE, C. J., and TRENCHARD and BLACK, JJ.

Durand, Ivins & Carton, of Asbury Park, and Robert H. McCarter, of Newark, for prosecutor. L. Edward Herrmann, of Jersey City, and Frank H. Sommer, of Newark, for Board of Public Utility Com'rs. Ward Kremer, of Asbury Park, for Borough of Bradley Beach.

TRENCHARD, J. The Atlantic Coast Electric Railway Company operates a trolley line or street railway from the junction of Main street and Cookman avenue in Asbury Park southerly through other municipalities and the borough of Bradley Beach to Belmar. It also operates another branch from the northern terminus of the above-described line, eastwardly along Cookman avenue in Asbury Park and through that city and beyond. On February 9, 1916, the board of public utility commissioners, at the request of the borough of Bradley Beach, after a hearing, ordered:

"The Atlantic Coast Electric Railway Company to give to all persons boarding its north-bound cars in Bradley Beach, who on payment of fare of five cents on such cars request transfers to its cars operating easterly on Cookman avenue, Asbury Park, said transfers, the same to be accepted by the company for a ride on Cookman avenue easterly as far as Kingsley street, Asbury Park, and * * * to give to all persons boarding its west-bound cars on Cookman avenue, who on payment of fare of five cents on such cars request transfers to its cars operating southerly on its Belmar line, said transfers, the same to be accepted by the company for a ride on its Belmar Line to the southerly boundary of Bradley Beach."

This writ of certiorari sued out by the company brings under review the validity of that order. We are of the opinion that it cannot be sustained.

Among other reasons urged against the order is that:

"The ordinances under which the company is operating through Bradley Beach, on the Belmar and Sea Girt line, provide for a five-cent fare to Cookman avenue, Asbury Park, and exact from the company annual payments in consideration of the privileges granted, and are contracts between the company and municipalities, including the borough of Bradley Beach, and the order of the board of public utility commissioners is in violation of these contracts and illegal."

The company was organized under the General Traction Act of 1893 (P. L. p. 302; C. S. p. 5021) and in 1897 obtained from the borough of Bradley Beach its ordinance above referred to. This ordinance was approved September 8, 1897. It recites the application of the company for permission to construct, operate, and maintain a new line of street railway through certain streets in accordance with a designated route, and grants such permission—

"to construct, operate, and maintain a new line of street railway in, through and upon the public street or highway in said borough of Bradley Beach, commonly known as the main public road leading from Asbury Park through the borough of Bradley Beach to Belmar, called Main street, and extending therein from the extreme northern boundary line of said borough of Bradley Beach southwardly to the extreme southern boundary line of said borough, conformably to the route designated," etc.

This is the line in question.

The twelfth section of the ordinance provides:

"That the rate of fare shall be five cents for the transportation of any passenger for one continuous ride on the cars of said company in any direction within the corporate limits of said borough, and no more than five cents shall be charged by said company for the transportation of any passenger for one continuous ride in either direction on the cars of said company from Cookman avenue in Asbury Park to any point in Belmar on the route on said railway, or to any other point on said route whenever said railway of said company shall be constructed and in operation over its said route between Asbury Park and the southern boundary line of the borough of Belmar."

The nineteenth section provides that the permission, rights, and privileges thereby granted to the company shall continue for a period of 50 years. The twentieth section provides that as compensation for the rights and privileges thereby granted the company shall, at its own cost and expense, grade and gravel stated portions of the street, and shall pay to the borough $250 annually during the fifty years for which the franchise is granted.

This ordinance was accepted by the company, the line between the two termini thereof was constructed and put in operation, a 5-cent fare was established thereon, and the company has hitherto fulfilled its obligations as imposed by the ordinance. It was, of course, under the law, necessary for the company to secure the consent given by the ordinance before it could build its trolley line through Bradley Beach. And paragraph 32 of the Traction Act (C. S. p. 5035) provides:

"That any consent required by this act to be given by any public body may be given by a resolution or ordinance of such body, which consent, when accepted by any corporation created under this act * * * shall have the force and effect of a contract."

The statute leaves the amount of compensation to be charged by such a company entirely open, there being no provision as to the rate of fares in the act. Other provisions of the statute, however, require that the company, before it shall construct its line, shall present to the governing body of the municipality a petition and plan of construction, and the municipality, after consideration, shall "either pass a resolution refusing such location or pass a resolution or ordinance, as may be necessary or proper, granting the said location or any part thereof, under such lawful restrictions as they deem the interests of the public may require," etc. Paragraph 7; C. S. p. 5025.

Now in Rutherford v. Hudson River Traction Co., 73 N. J. Law, 227, 63 Atl. 84, Mr. Justice Pitney for this court, speaking of this legislative provision, said:

"The 'lawful restrictions' that are to be made in the interest of the public indicate, likewise, a legislative act. In short, the statute, as we take it, plainly imports that the common council or other governing body of the municipality is to perform a legislative function in granting a special user of the public highway to a traction company, and in setting bounds and limits to its user and imposing conditions thereon; while, on the other hand, the traction company likewise is dealt with as a public agency, and not a mere private entity. In its application to the council it not only seeks an opportunity for private profit, but it tenders itself a volunteer to the public service, offering to embark the capital of its stockholders in a public improvement and to assume correlative duties. The proceeding has for its purpose the completion of the general 'charter' of the company by the acquisition of a local 'franchise.' It results that when the franchise is granted, subject to conditions and restrictions, and when the traction company proceeds to lay its tracks in the street and run its cars thereon, that property and those franchises become impressed with a public use that imposes the duty upon every successive holder to serve the public in accordance with the terms of the original grant."

In view of...