Fornarotto v. Bd. of Pub. Util. Com'rs of N.J.

• Decision Date: 22 October 1928
• Citation: 143 A. 450
• Parties: FORNAROTTO et al. v. BOARD OF PUBLIC UTILITY COM'RS OF NEW JERSEY.
• Court: New Jersey Supreme Court

143 A. 450

FORNAROTTO et al.

v. BOARD OF PUBLIC UTILITY COM'RS OF NEW JERSEY.

Supreme Court of New Jersey.

Oct. 22, 1928

tion at lower fare, and Board of Public Utility Commissioners denied permit on ground that to create competitive field in particular territory would be to disadvantage of larger public service, more than counterbalancing any local advantage, evidence as well as general public policy authorized conclusion of board denying the permit, under P. L. 1911, p. 384, § 24.

Gertiorari by Joseph H. Fornarotto and others to review the action of the Board of Public Utility Commissioners of New Jersey in refusing permit for operation of busses. On rule to show cause. Rule discharged.

Argued October term, 1928, before MINTURN, BLACK, and CAMPBELL, JJ.

Osborne, Cornish & Scheck, of Newark, for prosecutors.

William H. Speer, of Newark, for defendant.

MINTURN, J. The application in this case is for a writ of certiorari to review the action of the Board of Public Utility Commissioners in refusing to grant a permit to the prosecutors for the operation of busses along a certain route prescribed in the application.

The question presented by the record is entirely one of fact as to whether the evidence before the board and the entire situation before them justified the conclusion reached.

The general power of the board, as well as the policy initiated by the legislation creating it, is prescribed in section 24, c. 195, Laws of 1911, as follows:

"No privilege or franchise hereafter granted to any public utility as herein defined, by any political subdivision of this State, shall be valid until approved by said Board, such approval to be given when, after hearing, said Board determines that such privilege or franchise is necessary and proper for the public convenience and properly conserves the public interests."

This delegation of power by the legislative body to a public board is manifestly based upon the theory that the proposal presented by an applicant in any given case "is necessary and proper for the public convenience and properly conserves the public interest."

The board in this instance, after having heard the testimony, enunciated the following decision:

"The Board, before approving a local consent to operate, must find that the consent is necessary and proper for the public convenience and will properly conserve the public interest. This involves more than the detail of the fare as related to a particular operation. While in a particular case there might be an advantage to a limited number in a rate of fare competitive in its nature, the public interest would not be conserved if the competition would tend to affect adversely a system of charges and transportation it is desirable to maintain. The offer to operate at a lower fare does not alone establish a public necessity and convenience. If this were so, transportation would multiply beyond the point of operation at a reasonable profit, to the detriment of proper maintenance and service. This would not be in the public interest."

This pronouncement evidently provides the ratio decidendi of the board in reaching its conclusion, and manifestly is in accord with the section of the statute to which we have referred.

The facts in the case appear to be as follows:

The prosecutors were operating a bus line in competition with the Public Service Company over the route designated in the proposal. The Public Service Company had been operating on this line for a long time prior to the operation of the bus line. The prosecutors operate autobusses from the Hudson Tube Station in Newark by way of South Orange avenue to the Newark City-South Orange village line under the supervision and regulations of the defendant, in virtue of chapter 195 of the Laws of 1911. They have been operating for many years, originally as independent operators, possessing a total of 28 permits, of which 11 are owned by independent operators. The Public Service Company has purchased from the independent operators 17 permits.

In addition to the South Orange avenue bus line the Devine street line was originated by the Public Service by diverting busses from the South Orange avenue line through the same territory about a block away. Trolley cars of the Public Service operate on South Orange avenue east from the city line at Dover street to points east of the Pennsylvania Railroad Market Street Station, and from, Maplewood to the Public Service Terminal. The Public Service also operates on South Orange avenue an express bus service duly authorized by the defendant.

South Orange village has no bus service to either Broad and Market streets or to the Hudson and Manhattan Tube Station. The fare to Newark by trolley and bus is 10 cents, 5 cents to the Newark-South Orange line, and 5 cents after crossing that line, with no direct service to the Hudson and Manhattan Tube Station.

It appears from the evidence that 5 of the 11 busses operated by the prosecutors are idle during a portion of the day under the existing system, and that there is no 5-cent fare from the city of Newark to the village center. The proposed extension would add one mile to the existing line of bus service.

The prosecutor contends that there would be ample service in South Orange territory between Newark and the city line with the Dover street bus service and the trolleys, if the Public Service Company would be compelled to operate in full quota of bus permits continuously and also furnish sufficient trolley cars.

The prosecutors on September 19, 1927, applied to the village of South Orange for permission to extend their line from Dover street to the Newark-South Orange city line easterly for a distance of about a mile into South Orange village, along South Orange avenue to the Lackawanna Railroad Station. This application was granted by the board of trustees of the village on November 7, 1927, and application was thereafter made to the Board of Public Utility Commissioners for the approval of the permits. Testimony was taken before the commission on December 8 and 15, 1927, and a decision was rendered by that board on February 9, 1928, dismissing the application for approval. On April 20, 1928, the prosecutors filed a petition for a rehearing, and testimony was taken thereon before the commission on May 9 and 18, 1928. A number of witnesses were examined for the prosecutor, and one witness, Arthur T. Warner, general manager in charge of the Public Service Transportation & Railway Company, was examined for that company. On July 17, 1928, the application for the approval of the permits into South Orange was again denied.

The contention of the prosecutors upon this application is that there was no evidence whatever before the board to reasonably justify that conclusion. Their contention is that they offer the public a 5-cent fare by bus, while the Public Service is willing to furnish trolley service at 10 cents or de luxe bus service at 20 cents. The effect of a reversal of the action of the Public Utility Commissioners would be that their action in the matter would be vacated and the petition of these prosecutors...