Susquehanna Transit Commuters Ass'n v. Board of Public Utility Com'rs

• Court: New Jersey Superior Court — Appellate Division
• Writing for the Court: CONFORD
• Citation: Susquehanna Transit Commuters Ass'n v. Board of Public Utility Com'rs, 151 A.2d 9, 55 N.J.Super. 377 (N.J. Super. App. Div. 1959)
• Decision Date: 01 May 1959
• Docket Number: No. A--202,A--202
• Parties: SUSQUEHANNA TRANSIT COMMUTERS ASSOCIATION, an unincorporated association having more than seven members, and Brotherhood of Railroad Trainmen, an unincorporated association having more than seven members, Appellants and Cross-Respondents, v. BOARD OF PUBLIC UTILITY COMMISSIONERS of the State of New Jersey, Respondent and Cross-Respondent, Public Service Coordinated Transport, Respondent, New York, Susquehanna and Western Railroad Company, Respondent and Cross-Appellant.

Page 377

55 N.J.Super. 377

151 A.2d 9

SUSQUEHANNA TRANSIT COMMUTERS ASSOCIATION, an unincorporated association having more than seven members, and Brotherhood of Railroad Trainmen, an unincorporated association having more than seven members, Appellants and Cross-Respondents, v. BOARD OF PUBLIC UTILITY COMMISSIONERS of the State of New Jersey, Respondent and Cross-Respondent, Public Service Coordinated Transport, Respondent New York, Susquehanna and Western Railroad Company Respondent and Cross-Appellant.

No. A--202.

Superior Court of New Jersey Appellate Division.

Argued Oct. 14, 1958.

Supplemental Appendix Oct. 28, 1958.

Decided May 1, 1959.

Leon Leighton, New York City, of the New York Bar, admitted pro hac vice, argued the cause for respondent and cross-appellant New York, Susquehanna & Western R. Co. (Lum, Fairlie & Foster, Newark, attorneys; Leon Leighton, New York City, on the brief).

James M. Davis, Jr., Mount Holly, argued the cause for appellants and cross-respondents Susquehanna Transit Commuters Association and Brotherhood of Railroad Trainmen (Powell & Davis, Mount Holly, attorneys).

Howard T. Rosen, Deputy Atty. Gen., argued the cause for respondent and cross-respondent Board of Public Utility Com'rs (David D. Furman, Atty. Gen., attorney; Howard T. Rosen on the brief).

Before Judges GOLDMANN, CONFORD and FREUND.

GOLDMANN, S.J.A.D.

Susquehanna Transit Commuters Association ('Commuters') and Brotherhood of Railroad Trainmen ('Brotherhood') appeal, and New York, Susquehanna and Western Railroad Company ('Susquehanna') cross-appeals from a decision and order of the Board of Public Utility Commissioners of the State of New Jersey ('Board') dated December 11, 1957, authorizing Susquehanna to curtail its passenger train service, and from a supplemental order dated December 20, 1957 which approved the curtailed schedule. That schedule became effective January 13, 1958 after this court refused to continue a temporary stay theretofore granted.

Susquehanna originally sought a complete discontinuance of the service about to be described. During the ensuing hearings it amended its petition to change its objective to a curtailment of service, first to four round trips and later, in view of the testimony as to need for train service, to seven trips in each direction on weekdays, with no service on Saturdays, Sundays and holidays. The record is voluminous, and scores of documentary exhibits were marked in evidence, including statistical studies, financial statements and transporation schedules. While the hearings were in progress the Legislature adopted a concurrent resolution declaring that the public interest of the State required that there be no further abandonment or curtailment of passenger rail service in New Jersey pending presentation of the final report of the New York-New Jersey Metropolitan Rapid Transit Commission to the Governors and Legislatures of New York and New Jersey. By decision and order of July 3, 1957 the Board directed that in view of the declared legislative policy, further proceedings on Susquehanna's application be suspended until submission of the Commission report. Susquehanna appealed this decision, with the result that on November 25, 1957 our Supreme Court reversed the Board's decision and order and remanded the matter for further proceedings not inconsistent with its opinion. In re New York, Susquehanna and Western Railroad Company, 25 N.J. 343, 136 A.2d 408. The Board then proceeded to a determination on the merits of the case.

Commuters and Brotherhood appeal from every part of the Board's decision and orders, and Susquehanna appeals from only so much thereof as requires it to operate trains in excess of those set out in its amended proposal, shortly to be mentioned.

On January 31, 1958 Susquehanna petitioned the Board for rehearing and reconsideration. The petition was denied. Thereafter Susquehanna, on February 24, served notice that it would apply to this court on March 10, 1958 for an order directing that additional evidence be taken before the Board, and that the Board make its findings of fact thereon. The order issued and the Board held public hearings on March 20 and 21, 1958, at which additional exhibits were introduced and testimony taken for the purpose of bringing up to date the evidence previously presented. The record of these hearings is now before us.

I

Susquehanna's passenger service operates entirely in New Jersey, from Butler east and south through Paterson and Hackensack to the Jersey City terminal of the Erie Railroad, a distance of 36.8 miles. There are two means of access to New York City: (1) from Jersey City by Erie Ferry or the Hudson & Manhattan Railroad to midtown or downtown Manhattan, and (2) from Susquehanna Transfer, a station located 4.9 miles north of Jersey City, to the Port Authority bus terminal at Eighth Avenue and 41st Street in midtown Manhattan, by busses operated under contract by Public Service Coordinated Transport. Susquehanna also operates a branch extending 0.7 miles from the main line at Broadway station in Paterson to the Paterson City station at Straight Street in Paterson.

Prior to the institution of the curtailed service Susquehanna operated the following trains:

(1) Weekdays (Monday through Friday): 7 round trips between Jersey City and Butler, 1 round trip between Jersey City and North Hawthorne, 1 round trip between Susquehanna Transfer and North Hawthorne, 1 round trip between Paterson City and Broadway, 2 westbound trips from Susquehanna Transfer to Hawthorne, 1 eastbound trip from Paterson City to Hackensack, 18 westbound trips from Susquehanna Transfer to Paterson City, and 21 eastbound trips from Paterson City to Susquehanna Transfer.

(2) Saturday: 1 westbound trip from Susquehanna Transfer to North Hawthorne, 1 westbound trip from Jersey City to Butler, 16 westbound trips from Susquehanna Transfer to Paterson City, 16 eastbound trips from Paterson City to Susquehanna Transfer, 1 eastbound trip from Paterson City to Hackensack, 2 eastbound trips from Butler to Jersey City, and 1 eastbound trip from Paterson City to Broadway.

(3) Sundays: 1 eastbound trip from Paterson City to Hackensack, 16 eastbound trips from Paterson City to Susquehanna Transfer, and 17 westbound trips from Susquehanna Transfer to Paterson City.

(4) Holidays: 17 eastbound trips from Paterson City to Susquehanna Transfer, 18 westbound trips from Susquehanna Transfer to Paterson City and 1 eastbound trip from Paterson City to Hackensack.

There was no train service west of Paterson on Sundays and holidays.

Susquehanna's amended proposal sought to eliminate all service on Saturday, Sunday and holidays. Service Monday through Friday was to be limited to four round trips between Butler and Jersey City, serving the areas both west and east of Paterson; and one round trip between Paterson (Broadway) and Jersey City, and two round trips between Paterson (Broadway) and Susquehanna Transfer, serving only the area Paterson and east. The railroad claimed its proposal would afford complete weekday service during commuter hours, providing arrival in New York between 7:15 and 9:30 A.M., and departure from New York between 4:15 and 6:45 P.M. (The Board found that 'the public need for service (Mondays through Fridays) is principally during commuter hours. (Eastbound arriving in New York between 7:00 A.M. and 9:30 A.M. and westbound leaving New York between 4:00 P.M. and 6:30 P.M.)') Susquehanna states that this proposal would take care of 1,649 of the 2,164 daily eastbound passengers (76%) and 1,365 of the 1,971 daily westbound passengers (69%) carried prior to the curtailed service, thereby reducing its actual out-of-pocket passenger loss from $336,000 to $136,000 a year.

In making its determination on the merits of the case the Board was keenly aware, as it expressly stated, that it was 'required to give consideration to the factors outlined by the New Jersey courts' in railroad passenger service discontinuance cases, and that as between out-of-pocket losses incident to railroad operation and the public convenience and necessity, primary consideration must be given the latter. The Board specifically found that Susquehanna 'does not have sufficient overall income to safely carry the deficit of the passenger service and that extraordinary consideration should be given to the financial aspects of its operation.' It realized that the cost of providing passenger service could be reduced only slightly if the operation of a train were discontinued without eliminating the cost of maintaining the equipment and providing a crew: 'Only when a complete unit of equipment, crew or both can be eliminated does the discontinuance of a train produce any appreciable reduction in operating expenses.'

After reviewing the decline in total passengers carried from 1947 through 1956 and the statistics showing the number of passengers carried on each of the trains then in service, the Board made the following observation, significant in relation to the central issue of public necessity and convenience:

'The service rendered by the Railroad and the bus companies, the equipment used, the character of the area served, and the number of passengers carried, all tend to show that these proceedings deal with two clearly defined areas of service. On the one hand, there is the area west of Paterson with a relatively small population, a small number of persons seeking transportation by public carrier, and an incomplete system of public transportation. On the other hand, there is the densely populated area of Paterson, Hackensack and points intermediate to New York, with a large demand for transportation, and with an extensive network of bus and rail service to satisfy the public need.

'So far as public convenience and necessity is related to the service rendered by the New York, Susquehanna and Western Railroad, it might be said that west of Paterson the emphasis must...