O'Connor v. Bd. of Pub. Util. Com'rs

• Decision Date: 03 December 1942
• Docket Number: No. 24.,24.
• Citation: 29 A.2d 390,129 N.J.L. 263
• Parties: O'CONNOR et al. v. BOARD OF PUBLIC UTILITY COM'RS et al.
• Court: New Jersey Supreme Court

29 A.2d 390

129 N.J.L. 263

O'CONNOR et al.

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

No. 24.

Court of Errors and Appeals of New Jersey.

Dec. 3, 1942.

Syllabus by the Court.

1. The powers, conferred by statute on the Board of Public Utility Commissioners, that said Board shall have general supervision and regulation of and jurisdiction and control oyer all public utilities, are limited in the case of any particular utility by the statutes in force respecting that utility.

2. The statutes of this State relating to railroads provide, among other things, that every railroad shall run trains for the transportation, both of persons and property; shall furnish sufficient accommodations for the transportation of such passengers and property, and shall take, transport and discharge passengers and property at suitable places on payment of fare. Held, that the supervising power of the Board of Public Utility Commissioners does not warrant the granting by that Board to a railroad company of a permit to abandon or discontinue passenger service on its line and at the same time retain its franchise for the carriage of freight.

HEHER and COLIE, Justices, and WELLS, Judge, dissenting.

Appeal from Supreme Court.

Certiorari proceeding by William H. O'Connor and others against the Board of Public Utility Commissioners and another to review a determination of the Board approving discontinuance of passenger train service on branch lines. From a judgment of the Supreme Court dismissing the writ, 128 N.J.L. 35, 24 A.2d 411, the prosecutors appeal.

Reversed and judgment entered.

Edward C. Waddington, of Camden, for appellants.

John A. Bernhard, of Newark, for Board of Public Utility Com'rs.

Floyd H. Bradley, of Camden (Grace Heritage Smith, of Camden, and H. Merle Mulloy and Windsor F. Cousins, both of Philadelphia, Pa., on the brief), for respondent Pennsylvania-Reading Seashore Lines.

PARKER, Justice.

The fundamental and decisive question to be answered in this case is whether the Board of Utility Commissioners is vested by our statutes with power to permit a railroad company organized and operating under the general railroad act, R.S. 48:12-1 to 167, N.J.S.A. 48:12-1 to 167, to abandon all passenger train service on certain of its lines, while continuing freight operation thereon.

The petition of the company (verified in November, 1939, date of filing not stated in the printed book) asked for approval of "discontinuance of all passenger train service" on three branch lines, and "reduction and rearrangement of passenger train service" on a fourth. The approval was granted, there being no appearance in the "reduction" case, which is not before us. As to the other three, the Board granted "the application to abandon service on the three branches" over the protest of "numerous commuters" and directed the railroad "to post notice of * * * the abandonment of passenger service on the three branches" in stations and cars. The words "abandonment" and "discontinuance" seem to have been used synonymously, and we discern no material difference. Obviously a total cessation of passenger service was intended and granted, without limit of time.

The Railroad Act, by section 12-99 of R.S., Chapter 48, N.J.S.A. 48:12-99, provides that "every railroad company shall start and run trains for the transportation of persons and property at regular times to be fixed by public notice;" and "shall take, transport and discharge such passengers and property * * * on the due payment of the legal fare or freight * * *." This requirement is nothing new in our statute law. In the general railroad act of 1873, P.L. page 88, 102, Rev. of 1877, page 932, Section 26 provided "that every such corporation shall start and run their cars (sic) for the transportation of passengers and property, at regular times, to be fixed by public notice; and shall furnish sufficient accommodations for the transportation of all such passengers and property as shall within a reasonable time previous thereto be offered for transportation at the place of starting, and the junctions of other railroads, and at usual stopping places established for receiving and establishing way passengers and freights for that train; and shall take, transport and discharge such passengers and property at, from and to such places, on the due payment of the freight or fare legally authorized therefor; and shall be liable to the party aggrieved in an action for damages for any neglect or refusal in the premises." As to this, the late Chancellor McGill remarked, in National Docks & N. J. J. C. Ry. Co. v. United Companies, 53 N.J.L. 217, at page 228, 21 A. 570, at page 574, 26 Am.St.Rep. 421: "The design of the law is to subserve the public good. Consequently every railroad incorporated under it is expressly required to transport such passengers and property as shall be properly offered for transportation at its depots." The language of the 1873 act was repeated without substantial change in the Railroad Act of 1903, P.L. p. 645, 665; C.S. of 1910, p. 4239, Sec. 37; so that for about seventy years the statutory obligation to carry passengers has been in force.

Coming now to the jurisdiction in the premises of the Board of Public Utilities, it is obvious, of course, that the powers of that Board are defined and limited by the statute, the pertinent section being R.S. 48:2-13, N.J.S.A. 48:2-13, which reads as follows: "The board shall have general supervision and regulation of and jurisdiction and control over all public utilities as hereinafter in this section defined and their property, property rights, equipment, facilities and franchises so far as may be necessary for the purpose of carrying out the provisions of this title."

The next paragraph, which need not be quoted at length, includes expressly "every * * * corporation * * * that * * * may own, operate, manage or control * * * any steam railroad * * * for public use, under privileges granted * * * by this state * * *".

It is hornbook law that a public service corporation enjoying special franchises as a grant from the public in consideration of service to be performed for the public, having the right of eminent domain, and in the case of a railway, having the right of way at road crossings, must either exercise the franchise as required by law, or surrender it. The Massachusetts case of Commonwealth v. Fitchburg R. Co., 12 Gray 180, at page 187, cited by the Board, seems plainly distinguishable because the court said in that case "neither the statutes under which the respondents hold their franchises, nor the general laws regulating railroad companies, in terms impose upon the respondents such duty" (to run regular passenger trains on branch roads).

The present situation of the railroad corporation is one closely connected with the general history of transportation, particularly in this State. In the beginning there were a few Indian trails through an otherwise trackless wilderness, and navigation by boats, larger or smaller, on the rivers and creeks. Prior to the steamboat, the so-called "Durham boat" was an important vehicle on some of the rivers. Later, roads were made, primitive in character and devoid of what is called metal, so that in bad weather they were almost impassable and public transportation over them was by stage coach or stage wagon. The steamboat at the opening of the 19th century was a great step in advance, but, of course, was confined to navigable waters. The canal came into being a few years later, and succeeded for a time particularly as regards slow moving freight, but it is now practically extinct. Slightly over a century ago came the railroad; and its value as a means of transportation was immediately appreciated, and to such an extent as to create considerable competition between localities for the privilege of having a railway come to them; as, for example, in Burlington. In many of the towns the railway tracks ran down the middle of the principal street. Railway and steamer transportation was in some cases combined as, for instance, the Camden and Amboy Railroad, a through line between Philadelphia and New York with a terminus at South Amboy and steamer transportation thence to New York City both through Staten Island Sound and the lower bay of New York. So long as the common roads remained subject to weather conditions because of soft surfacing, and the use of vehicles was confined to horses and sometimes oxen, the railroads were distinctly in the saddle, not only as regards their trunk lines, but with respect to numerous branch lines extending to places not on the main lines. Instances of this in the northern part of the State were the branch line of Rahway to Perth Amboy, a spur to Millstone from the Pennsylvania lines, the High Bridge branch from the Central Railroad of New Jersey: the Chester branch from the Morris and Essex, the Trenton branch from the Reading: and the Sussex Railroad itself may be considered as one of these branches. All those branches did both a freight and passenger business, though it may be said to be common knowledge that the freight business was the principal consideration. But with the invention and development of the motor vehicle at the end of the 19th century a radical change of conditions ensued. The speed of a motor vehicle, even at the very outset, discounted that of the horse, and with the increase in the number of motor vehicles there came the insistent demand for better roads on which to use them. The telford and macadam roads were already in use to some extent and more roads of a similar character were imperatively demanded. Some years ago the late Edwin A. Stevens, who was appointed by Governor Woodrow Wilson as Road Commissioner, wrote an article for Scribner's Magazine on the subject of improved roads, and in that article ventured the prediction that in constructing roads in the future it would be necessary for the engineers to...