In re Wilner's Livery Service, Inc.

387 A.2d 1202, 159 N.J. Super. 226, 1978 N.J. Super. LEXIS 912
CourtNew Jersey Superior Court Appellate Division
DecidedApril 26, 1978
StatusPublished

This text of 387 A.2d 1202 (In re Wilner's Livery Service, Inc.) is published on Counsel Stack Legal Research, covering New Jersey Superior Court Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Wilner's Livery Service, Inc., 387 A.2d 1202, 159 N.J. Super. 226, 1978 N.J. Super. LEXIS 912 (N.J. Ct. App. 1978).

Opinion

Per Curiam.

Appellant Wilner’s Livery Service, Inc. (Wilner) appeals a decision of the Board of Public Utilities [228]*228(Board) holding that ‘‘The services rendered by Wilner * * * constitutes [sic] charter services within the purview of N. J. S. A. 48:4-1 and therefore places [sic] Wilner’s business activities within the jurisdiction of the Board,” and an order directing it to apply to said Board for a Certificate of Public Convenience and Necessity (Certificate) within a stated time, or be subject to penalty for failing to do so.

The prelude to this appeal commenced in 1976, when the Board sent letters to Wilner and other operators of limousine services similar to those furnished by Wilner and known to be operating without certificates, instructing them to apply for same. In response, on January 17, 1977 Wilner filed a petition with the Board demanding judgment that it was not subject to the Board’s jurisdiction. On April 25, 1977 and on May 26, 1977 the board examiner conducted a public hearing at which Wilner was represented. At the conclusion of the hearing the parties waived preparation of the hearing examiner’s report and recommendation, and consented to the certification of the record directly to the Board for final action.

On September 16, 1977 the Board held that it had jurisdiction over Wilner and ordered Wilner to file a petition for certification within 15 days, On October 3, 1977 Wilner filed the instant appeal. On October 31, 1977 on Wilner’s application, we granted a stay of the Board’s order pending appeal.

Wilner contends that the Board erred in holding that its limousine operations, described hereinafter in the factual determinations of the Board, were regulated by it pursuant to the statutory provision dealing with autobuses, N. J. S. A. 48:4-1 et seq. It asserts that its limousine operations fall under the statutory provisions pertaining to autocabs, N. J. S. A. 48:16-13 et seq., which reads as follows:

“Autocab” means and includes any automobile or motor car engaged in the business of carrying passengers for hire which is held out, announced or advertised to operate or run or which is operated or run over any of the streets or public highways of this state, and [229]*229which is hired by charter or for a particular contract, or by the day or hour or other fixed period, or to transport passenger to a specified place or places, or which charges a fare or price agreed upon in advance between the operator and the passenger. Nothing in this article contained shall be construed to include taxicabs, hotel busses or busses employed solely in transporting school children or teachers or autobusses which are subject to the jurisdiction of the board of public utility commissioners, or interstate autobusses required by federal or state law or rules of the board of public utility commissioners to carry insurance against loss from liability imposed by law on account of bodily injury or death. [Emphasis supplied]

The above-quoted section is a part of chapter 16 of N. J. S. A. Title 48, which covers taxicabs (N. J. S. A. 48:16-1 to 12), autocabs (N. J. S. A. 48:16-13 to 22) and jitneys (N. J. S. A. 48:16-23 to 28), each of which type of business is respectively defined within the sections pertaining to it. The factual determinations to the extent made by the Board, as follows, were not disputed by Wilner:

Eor historical purposes it should be noted that prior to the public hearings, the Bureau of Rail and Motor Carriers (Bureau) requested Wilner to comply with N. J. S. A. 40:4-3 by filing a petition for the issuance of a Certificate of Public Convenience and Necessity in accordance with N. J. A. C. 14:1-5.1 et seq. Wilner took the position that it is not operating a business in the State of New Jersey as defined by N. J. S, A. 48:4-1 et seq., and therefore is not subject to the Board’s jurisdiction. Wilner refused to comply with the Bureau’s request.
The testimony of David Wilner, president and chief executive operating officer of petitioner, shows that Wilner is not certified by the Board, but does provide the public a business commonly referred to as a limousine or livery service. More particularly, the service offered and provided, is the furnishing of limousines with a chauf-fer [sic] to transport passengers to a given point, either for private livery service or to attend weddings, on a state^wide basis. In addition thereto, Wilner also furnishes limousines, hearses and flower cars to funeral directors who provide same as part of their funeral services.
The services provided by petitioner as above stated, which includes [sic] transportation of passengers to New York airports, are- not operated along fixed routes or under a time schedule. The private limousine services also used for weddings, are available to the general public, either on a flat rate for a given destination or on a time or mileage basis, whichever is greater. Similar charges are made [230]*230to funeral directors for the use of the limousines, hearses and flower cars.
Petitioner operates 1 station wagon, 18 limousines, 11 hearses and 7 flower ears. The insurance policy for the limousines and station wagon has been filed with the City Clerk of Rahway and these vehicles bear autoeab registration plates. No certificates of registration have been filed with any municipality outside of Rahway. The hearses and flower cars carry private registration plates.

The Board’s contention that it has jurisdiction is founded on a claim that N. J. S. A. 48:16-13 et seq., which, as stated, deals with autocabs as defined above, was impliedly repealed in 1973 upon the enactment by the Legislature of L. 1973, c. 158, §9; N. J. S. A. 48:4-1.2. This statute reads:

The board shall have full jurisdiction over charter busses and special busses, to the same extent that it has jurisdiction over auto-buses.

The Board acknowledges that in 1936, at the time of the enactment of N. J. S. A. 48:16-13 to 22 (L. 1936, c. 193), dealing with autocabs, there was a clear distinction between an autobus and an autoeab, because then an autoeab, unlike an autobus, was hired by charter and thereby constituted a limousine service. On the other hand, an autobus, unlike an autoeab, indiscriminately accepted and discharged persons at the termini or at points along the route on which it was operating (L. 1926, c. 144, § 6). Autobuses were under the jurisdiction of the Board, N. J. S. A. 48:2-13 (L. 1926, c. 144, § 6), but autocabs were not. They were under municipal regulation, N. J. S. A. 48:16-17.

In 1946 the Legislature revised N. J. S. A. 48:A-1 by including charter-bus operations within the definition of autobuses, in the following language:

The term “charter bus operation” as used in this chapter means and includes the operation of an autobus or autobusses by the person owning or leasing such bus or busses pursuant to a contract, agreement or arrangement to furnish an autobus or autobusses and a driver or drivers thereof to a person, group of persons or organiza[231]

Free access — add to your briefcase to read the full text and ask questions with AI

Cite This Page — Counsel Stack

Bluebook (online)
387 A.2d 1202, 159 N.J. Super. 226, 1978 N.J. Super. LEXIS 912, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-wilners-livery-service-inc-njsuperctappdiv-1978.