Bd. of Pub. Util. Com'rs v. Lehigh Valley R. Co.
| Decision Date | 31 January 1929 |
| Docket Number | No. 232.,232. |
| Parties | BOARD OF PUBLIC UTILITY COM'RS v. LEHIGH VALLEY R. CO. |
| Court | New Jersey Supreme Court |
Application for mandamus by the Board of Public Utility Commissioners against the Lehigh Valley Railroad Company. Denied, without prejudice.
See, also, 5 N. J. Misc. R. 559, 137 A. 442.
Argued January term, 1929, before MINTURN, BLACK, and CAMPBELL, JJ.
John O. Bigelow, of Newark, for relator.
Hobart & Minard, of Newark, for defendant.
An application in this case is made for a peremptory, or in the alternative for an alternative, writ of mandamus to compel the defendant to begin actual work, within such time as the court may fix, required for making the crossing of the highway known as South Bridge street or state highway route No. 16 in Hillsboro township, Somerset county, N. J., in compliance with an order made by the relator dated April 26, 1927, and to complete the work to be done within one year thereafter. The application is based upon two affidavits; one by Alfred M. Barber, secretary of the board of public utility commissioners of New Jersey; one by Charles A. Mead, engineer; copies of two orders of the board of public utility commissioners, dated, respectively, November 24, 1926, and April 26, 1927. Two answering affidavits, one by Ralph D. Van Duzer and one by William R. Johnstone, Exhibit B, a petition for a rehearing before the board of public utility commissioners filed January 14, 1929.
We cannot find any case in our reports that would justify us in ordering a writ of mandamus in this case at this time. The power to issue the writ of mandamus is a discretionary one. Jones Co. v. Guttenberg, 66 N. J. Law, 58, 48 A. 537; Id., 66 N. J. Law, 659, 51 A. 274; English v. City of Asbury Park (N. J. Sup.) 115 A. 64; Sutton v. Champion, 101 N. J. Law, 569, 129 A. 923; Id., 126 A. 742, 2 N. J. Misc. R. 1135.
The right to a writ of mandamus must be clear; it will be denied where it creates disorder and confusion. English v. City of Asbury Park (N. J. Sup.) 115 A. 64; Hugg v. Ivins, 59 N. J. Law, 139, 36 A. 685.
The public duty sought to be enforced must be clear and specific. Uszkay v. Dill, 92 N. J. Law, 327, 106 A. 17.
The application is therefore denied at this time, but without prejudice to renew the same at a future time.
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Bd. of Pub. Util. Com'rs of N.J. v. Lehigh Valley R. Co., 144.
...adverse judgment, plaintiffs appeal. Reversed and remanded with directions. See also 137 A. 442, 923, 5 N. J. Misc. R. 559, 587; 144 A. 589, 7 N. J. Misc. R. 160; 49 S. Ct. 69, 278 U. S. 24, 73 L. Ed. 161, 62 A. L. R. John O. Bigelow, of Newark, for appellants. Hobart & Minard, of Newark, f......
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Jacobs v. Elwell
...discretion of this court should be exercised in the direction of refusing the writ applied for. Board Public Utility Commissioners v. Lehigh Valley R. Co., 144 A. 589, 7 N. J. Misc. R. 160, and cases therein The application for the writ of mandamus is therefore denied, and the rule to show ......