Board of Public Utility Commissioners of New Jersey v. Lehigh Valley Railroad Co.

• Decision Date: 03 February 1930
• Docket Number: No. 144.,144.
• Citation: 149 A. 263,106 N.J.L. 411
• Court: New Jersey Supreme Court
• Parties: BOARD OF PUBLIC UTILITY COMMISSIONERS OF NEW JERSEY, WHO SUE IN THE NAME AND FOR THE USE OF THE STATE OF NEW JERSEY, APPELLANTS, v. LEHIGH VALLEY RAILROAD COMPANY, RESPONDENT

149 A. 263

BOARD OF PUBLIC UTILITY Com'rs OF NEW JERSEY

v. LEHIGH VALLEY R. CO.

No. 144.

Court of Errors and Appeals of New Jersey.

Feb. 3, 1930.

(Syllabus by the Court.)

Appeal from Supreme Court.

Action by the Board of Public Utility Commissioners of New Jersey, suing in the name and for the use of the State of New Jersey, against the Lehigh Valley Railroad Company.From an adverse judgment, plaintiffs appeal.Reversed and remanded with directions.

See also137 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. 805.

John O. Bigelow, of Newark, for appellants.

Hobart & Minard, of Newark, for respondent.

PARKER, J.In a suit begun in the Supreme Court under the above title, for the enforcement of a penalty of $100 per day for default of compliance by the respondent with an order of the board touching the abolition of a grade crossing, pursuant to section 33 of the statute commonly known as the Public Utilities Act(P. L. 1911, chapter 195, at page 387), there was a motion to strike out the answer and supplemental answer, and some forty-three defenses therein specified, which motion was heard by Judge Oliphant of the circuit court, sitting as a Supreme Court commissioner pursuant to the act of 1926(P. L.p. 103) and rules 92 to 94 of the Supreme Court as revised in 1926.The commissioner struck out all of the defenses except paragraph 11 of the first defense, and the second, fourth, thirty-sixth, and thirty-seventh defenses; but conceiving that Nos. 36 and 37 went to the root of the case and that the motion, as tantamount to a demurrer, opened the whole record, adjudged that the complaint itself should be dismissed and the summons quashed.This determination was followed by a rule entered by authority of a justice of the Supreme Court, directing the quashing of the summons and dismissal of the complaint.This, as tantamount to a final judgment, constitutes a proper basis for review by this court.Eames v. Stiles, 31 N. J. Law, 490.

So far as the second defense and paragraph 11 of the first defense relate to the time when the penalty began to run, they are not attacked on this appeal, as will more fully appear presently.The fourth defense, which will also be taken up more fully later on, deals with alleged inability for legal reasons to comply with the order.The real nub of the controversy, however, is in the thirty-sixth and thirty-seventh defenses, which are substantially alike, and raise the points that the suit should be by the state itself, and be conducted by the Attorney General, and as a corollary, that counsel for the board appointed by authority of the Utility Act, section 5, is without authority to bring or conduct this suit in its behalf.

As to the first branch of the proposition, that the suit should be in the name of the state itself, as provided by section 33 of the Utility Act, the record shows explicitly that the state is the party in interest, although the board may figure as a relator.SeeAnderson v. Myers, 77 N. J. Law, 186, 71 A. 139.The precise form of language seems not material.The important question is that of control of the litigation, whether by the board and its counsel as state agents, or by the Attorney General as the usual accredited legal adviser of the state itself.On this branch of the casewe conclude that the powers and privileges of the Attorney General as they existed at common law, and particularly as conferred by statute, are subject to change and modification by legislative enactment; and that in the matter of the board of public utilities the Legislature has conferred upon that board, and upon counsel appointed by it pursuant to the statute, the power of commencing and conducting litigation in which the board, in exercise of the power vested in it, is seeking to enforce its mandates.

It may be stated as a broad general proposition that upon the separation of the American colonies from the crown, and the erection therein of independent governments, the common-law powers and duties of Attorney General in England devolved upon similar officials in the various states, and according to the text of 6 C. J.pp. 809, 810, no attempt was made by state Legislatures to enumerate or, define them.A very instructive list of such powers and duties appears in the report of People v. Miner, 2 Lans.(N. Y.) 396, 398, which is abstracted in the footnote on 6 C. J. 809, and need not be reproduced here.On page 810 of 6 C. J., it is stated in the text that: "Subject to constitutional limitations, it is within the power of the Legislature to increase, alter or abridge the powers and duties of the Attorney General."Both these general propositions are illustrated in the history of New Jersey legislation.

The index of English statutes at large under the title of "Attorney.General" fails to show any legislation of consequence relating to his duties, and only three statutes are referred to under that heading.There is nothing under this title in the index to Learning and Spicer's Grants and Concessions of New Jersey.Likewise, there is nothing under this title in the Index in Allinson's New Jersey Laws published in 1776.Consequently, it may be reasonably assumed that the duties of Cortlandt Skinner, the last Attorney General of New Jersey under the crown, and the duties of William Paterson appointed in 1783, were substantially the same in their sphere as those of the Attorney General in England in his.The first Constitution of New Jersey, adopted in 1776(1 C. S. xxix), is silent on the subject of the Attorney General, except that by paragraph XII his term of office is to be five years and he is to be appointed by the council and assembly "in manner aforesaid."By paragraph XXII it is prescribed "that the common law of England, as well as so much of the statute law, as have been heretofore practiced in this Colony, shall still remain in force, until they shall be altered by a future law of the Legislature; such parts only excepted, as are repugnant to the rights and privileges contained in this charter."It would seem that as there was no provision in this Constitution saving any particular rights and powers of the Attorney General, the Legislature was free to deal with the subject under the general rule that a state Legislature is unhampered in its enactments except by some express or plainly implied provision of the Constitution; as will appear, it has in fact acted with entire freedom in the matter.

Paterson's Revision exhibits nothing in relation to the Attorney General, except the Quo Warranto Act, p. 177, imposing on him the duty to prosecute recognizances either himself or through an attorney appointed by the court to prosecute the pleas in his absence, pages 180 and 181; and similar provisions relating to recognizances of tavern keepers, pages 239 and 240.

In the opinion of Justice Nevius in State ex rel. Clawson v. Thompson, 20 N. J. Law, 689, at page 690, it is stated that prior to 1812the Attorney General was accustomed to appoint a temporary deputy to prosecute the pleas in counties where he could not himself attend; but in 1812 an act was passed reciting in its preamble that doubts had arisen touching this practice (P. L.1812, p. 23;R. S. 557) and expressly authorizing him to do so.This seems to have proven unsatisfactory, and in 1822 another act was passed (P. L.p. 25) repealing the act of 1812 and providing in lieu thereof that prosecutors should be appointed by the court of quarter sessions, which then consisted of the justices of the peace of the county, or any three of them.SeeCroasdale v. Court of Quarter Sessions of Atlantic County, 88 N. J. Law, 506, 507, 97 A. 285.After only a year, the Legislature again found it necessary to intervene, and in P. L. 1823, p. 52, Har. Comp.p. 49, Elmer's Digest, 448, we find an act reciting that the present mode of appointing prosecutors "is liable to abuses, and tends to the great injury of the state, by the choice, in many instances, of incompetent persons, and is also contrary to the rights of the people, by taking away from them, or their representatives in assembly, the election of public officers, and vesting the same in justices of the peace," and providing that in each county there shall be a prosecutor of the pleas to be appointed by council and assembly in joint meeting, to serve for five years, "whose duty it shall be to prosecute the pleas of the state in such county in the absence of the attorney general," etc.So that we have the Legislature asserting its authority over the Attorney General, first, in ratifying his appointment of subordinates; secondly, in taking that power of appointment from him and lodging it in the county courts; and, thirdly, by itself assuming the appointing power.Moreover, the office of prosecutor became distinct and separate, for in the Clawson Case, ubi supra, it was definitely held that it was incompatible with that of the Attorney General; that prosecutors were not deputies of the Attorney General under the act of 1823, nor were they accountable to him.Id., page 691 of 20 N. J. Law.No one seems to have claimed that under the Constitution of 1776(which, like that of 1844, says nothing about the Attorney General except to prescribe the manner of his appointment and to fix his term) the powers and duties of the Attorney General were immune to legislative interference.

The Constitution of 1844, as just stated, provides for the appointment and term of the Attorney General, and of a number of other state officials, including prosecutors of the pleas.Article VII, sec. II, par. 4.But it says nothing about their powers or duties.

In 1846the Legislature revised the act of 1823 relating to prosecutors of the pleas but without any change material to the present inquiry.But in 1854we find a very important change in the law brought about by the passage of an act entitled "An act to...