Board of Public Utility Commissioners v. Lehigh Valley Railroad

144 A. 589, 7 N.J. Misc. 160, 1929 N.J. Sup. Ct. LEXIS 384

• Court: Supreme Court of New Jersey
• Decided: January 30, 1929
• Status: Published

Opinion

Pee Cueiam.

An application in this case is made for a peremptory, or in the alternative, for an alternative writ of mandamus to compel the defendant to begin actual work, within such time as the court may fix, required for making the crossing of the highway, known as South Bridge street or State Highway Route No. 16 in Hillsboro township, Somerset county, New Jersey, in compliance with an order made by the relator dated April 26th, 1927, and to complete the work to be done within one year thereafter. The application is based upon two affidavits; one by Alfred M. Barber, secretary of the board of public utility commissioners of New Jersey; one by Charles A. Mead, engineer; copies of two orders of the board of public utility commissioners, dated respectively, November 24th, 1926, and April 26th, 1927. Two answering affidavits, one by Ralph D. Van Duzer and one by William R. Johnstone, Exhibit B a petition for a rehearing before the board of public utility commissioners filed January 14th, 1929.

We cannot find any case in our reports, that would justify us in ordering a writ of mandamus in this case at this time. The power to issue the writ of mandamus is a discretionary one. Jones Co. v. Guttenberg, 66 N. J. L. 58; Ibid. 659; Sutton v. Champion, 101 Id. 569; 2 N. J. Mis. R. 1135.

The right to a writ of mandamus must be clear, it will be denied where it creates disorder and confusion. English v. City of Asbury Park, 115 Atl. Rep. 64; Hugg v. Ivins, 59 N. J. L. 139.

The public duty sought to be enforced must be clear and specific. Uszkay v. Dill, 92 N. J. L. 327.

The application is therefore denied at this time, but without prejudice to renew the same at a future time.