Pub. Serv. Ry. Co. v. Bd. of Pub. Util. Com'rs

• Citation: 85 N.J.L. 123,88 A. 818
• Parties: PUBLIC SERVICE RY. CO. v. BOARD OF PUBLIC UTILITY COM'RS et al.
• Decision Date: 10 November 1913
• Court: United States State Supreme Court (New Jersey)

88 A. 818

85 N.J.L. 123

PUBLIC SERVICE RY. CO.

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

Supreme Court of New Jersey.

Nov. 10, 1913.

(Syllabus by the Court.)

Certiorari by the Public Service Railway Company to review an order of the Board of Public Utility Commissioners. Order set aside.

Argued June term, 1913, before SWAYZE, BERGEN, and VOORHEES, JJ.

Frank Bergen, of Newark, for prosecutor.

Frank H. Sommer, of Newark, and J. E. Strieker, of Perth Amboy, for defendants.

BERGEN, J. This writ was allowed to review the following order made by the Board of Public Utility Commissioners: "Hereby orders the Public Service Railway Company to comply with the municipal ordinances of the city of Perth Amboy requiring said Public Service Railway Company to permit all policemen and paid firemen, while on duty, to ride on the cars of the company free of charge, within the city limits."

From the facts, not disputed, it appears that the city by ordinance granted permission to the railway company to lay its rails in the streets subject to a condition that "all policemen and paid firemen, while on duty, shall be permitted to ride on the cars of the said companies, its lessees or assignees, free of all charge." The prosecutor admits that its franchise or contract contained the condition quoted, and that it was observed until it was, as it claims, abrogated by the act of the Legislature creating the Board of Public Utility Commissioners. It also admits that the company does not carry policemen free of charge unless they are in uniform, but claims its refusals to carry free related to policemen not in uniform who attempted to ride without the book or tickets furnished to nonuniformed detectives, and that its rule, that policemen and firemen should only be carried free when in uniform, or upon presentation of tickets so furnished to nonuniformed detectives, is reasonable, and that it is entitled to enforce it.

Reference is made in the report of the commissioners, and also in the brief of counsel for defendants to the case of State v. Sutton, 83 N. J. Law, 46, 84 Atl. 1058; but an examination of the opinion shows that the questions here involved were not pressed or deelded. That opinion deals entirely with the constitutionality of the law, which is a question not here raised. The argument in support of this order is based upon a contractual relation, which the prosecutor claims has been waived or abrogated. I have no doubt that as the city is a mere agent of the state, deriving all its rights from legislation, that the Legislature may waive or abrogate, with the consent of the other party, any contract which its agent has entered into.

Section 18 of the Utilities Act (P. L. 1911, pp. 374-380) provides, among other things, that no public utility shall "hereafter give, grant, or bestow on any local, municipal or county official any discrimination, gratuity, or free service whatsoever," except that it shall not prevent the entry into any public conveyance, or...