State v. New York Cent. R. Co.

• Decision Date: 01 August 1958
• Docket Number: No. C--2480,C--2480
• Citation: 52 N.J.Super. 206,145 A.2d 54
• Parties: STATE of New Jersey and Public Utility Commissioners of the State of New Jersey, Plaintiffs, v. NEW YORK CENTRAL RAILROAD COMPANY, Defendant. . Chancery Division
• Court: New Jersey Superior Court

Page 206

52 N.J.Super. 206

145 A.2d 54

STATE of New Jersey and Public Utility Commissioners of the

State of New Jersey, Plaintiffs, v. NEW YORK CENTRAL RAILROAD COMPANY, Defendant.

No. C--2480.

Superior Court of New Jersey.

Chancery Division.

Aug. 1, 1958.

David D. Furman, Atty. Gen., of the State of New Jersey (Howard T. Rosen, Deputy Atty. Gen., appearing), for plaintiffs.

O'Mara, Schumann, Davis & Lynch, Jersey City (Edward J. O'Mara, Jersey City, appearing), for defendant.

FOLEY, J.S.C.

This proceeding is brought by the Attorney General in behalf of the State of New Jersey and its Board of Public Utility Commissioners to enforce an order made by the Board on July 18, 1958 enjoining the defendant company to continue its operation of Weehawken passenger ferry service pending a finding concerning the necessity therefor.

Notwithstanding this direction the defendant has curtailed the service in question, and now, in response to this action brought by the State under N.J.S.A. 48: 2--41, which provides Inter alia that 'observance of the orders of the board may be enforced * * * by suit in equity to compel the specific performance of the order', asserts that the order unlawfully invades the federal domain reserved by the Commerce Clause of the Constitution of the United States and thus is null and void. Admittedly, this constitutes a collateral attack upon the Board's order.

A fundamental legislative and judicial objective is to provide an orderly means of settling disputes between litigants. In creating the Public Utility Commission the Legislature provided an Exclusive method of appeal from its orders. N.J.S.A. 48:2--43. By rule of court this procedure has been implemented. R.R. 2:2--3(a) provides '(a) This court (Appellate Division of the Superior Court) shall have the power to permit in its discretion an appeal to be taken from any interlocutory order * * * when, in the opinion of the court, the grounds of appeal are substantial.'

If the defendant was dissatisfied with the order of the Board and believed that it was Ultra vires and so unconstitutional, it was afforded the opportunity of contesting the validity of the order in the Appellate Division, as indeed did not plaintiff in Erie Railroad Company v. State of New Jersey, 51 N.J.Super. 61, 143 A.2d 224 (1958), the opinion in which the defendant relies upon herein. In passing, it is to be observed that appeal has been taken from this decision to the Supreme Court, which will ultimately decide the question this defendant has already decided in its own favor.

Instead of asserting its right in an orderly fashion, the defendant chose to take the wholly intolerable course of ignoring and indeed flouting the order of a public body. In doing so it has gone on strike against the public whose needs and convenience the Board was designed to protect.

The excuse offered for this most unusual conduct is that the defendant may in any proceeding raise the question of the constitutionality of the order, and cases are cited in which orders of...