O'Connor v. Board of Public Utility Commissioners

29 A.2d 390, 129 N.J.L. 263, 1942 N.J. LEXIS 307

Opinions

The opinion of the court was delivered by

Parker, J.

The fundamental and decisive question to be answered in this case, is whether the Board of Utility Commissioners is vested by our statutes with power to permit a railroad company organized and operating under the General Railroad Act (R. S. 48:12-1 to 167) to abandon all passenger train service on certain of its lines, while continuing freight operation ther'eon.

The petition of the company (verified in November, 1939, date of filing not stated in the printed book) asked for approval of “discontinuance of all passenger train service” on three branch lines, and “reduction and rearrangement of passenger train service” on a fourth. The approval was granted, there being no appearance in the “reduction” ease, which is not before us. As to the other three, the Board granted “the application to abandon service on the three branches” over the protest of “numerous commuters” and directed the railroad “to post notice of * * * the abandonment of passenger service on the three branches” in stations and cars. The words “abandonment” and “discontinuance” seem to have been used synonymously, and we discern no material difference. Obviously a total cessation of passenger service was intended and granted, without limit of time.

The Railroad Act, by section 48:12-99 of the Revised Statutes provides that “every railroad company shall start and run trains fox the transportation of persons and property at regular times to be fixed by public notice;” and “shall take, transport and discharge such passengers and property * * * on the due payment of the legal fare and freight. * * *” This requirement is nothing new in our statute law. In the General Railroad Act of 1873, Pamph. L., pp. 88, 102, Revision of 1877, page 932, section 26 provided “that every such corporation shall start and run their cars (sic) fdr the transportation of passengers and property, at regular times, to be fixed by public notice; and shall furnish sufficient accommodations for the transportation of all such passengers and property as shall within a reasonable time previous thereto be offered for transportation at the place of starting, and the junctions of other railroads, and at usual stopping places established for receiving and establishing way passengers and freights for that train; and shall take, transport and discharge such passengers and property at, from and to such places, on the due payment of the freight or fare legally authorized therefor; and shall be liable to the party aggrieved in an action for damages for any neglect or refusal in the premises.” As to this, the late Chancellor McGill remarked, in Nation Docks’ Co. v. United Companies, 53 N. J. L. 217 (at p. 228) : “The design of the law is to subserve the public good. Consequently, every railroad incorporated under it is expressly required to transport such passengers and property as shall be properly offered for transportation at its depots.” The language of the 1873 act was repeated without substantial change in the Railroad Act of 1903, Pamph. L., pp. 645, 665; Comp. Stat. of 1910, p. 4239, § 37: so that for about seventy years the statutory obligation to carry passengers has been in force.

Coming now to the jurisdiction in the premises of the Board of Public Utilities, it is obvious, of course, that the powers of that Board are defined and limited by the statute, the pertinent section being R. 8. 48:2-13, which reads as follows:

“The board shall have general supervision and regulation of and jurisdiction and-control over all public utilities as hereinafter in this section defined and their property, property rights, equipment, facilities and franchises so far as may be necessary for the purposes of carrying out the provisions of this title.”

The next paragraph, which need not be quoted at length, includes expressly “every * * * corporation * * * that may own * * *, operate, manage or control * * * any steam railroad * * * for public use, under privileges granted * * * by this state * * *.”

It is hornbook law that a public service corporation enjoying special franchises as a grant from the public in consideration of service to be performed for the public, having the right of eminent domain, and in the case of a railway, having the right of way at road crossings, must either exercise the franchise as required by law, or surrender it. The Massachusetts case of Commonwealth v. Fitchburg Railroad Co., 12 Gray 180, cited by the Board, seems plainly distinguish able because the court said in that case (at p. 187) “neither the statutes under which the respondents hold their franchises, nor the general laws regulating railroad companies, in terms impose upon the respondents such duty” (to run regular passenger trains on branch roads).

The present situation of the railroad corporation is one closely connected with the general history of transportation, particularly in this state. In the beginning there were a few Indian trails through an otherwise trackless wilderness, and navigation by boats, larger or smaller, on the rivers and creeks. Prior to the steamboat, the so-called “Durham boat” was an important vehicle on some of the rivers. Later, roads were made, primitive in character and devoid of what is called metal, so that in bad weather they were almost impassable and public transportation over them was by stage coach or stage wagon. The steamboat at the opening of the 19th century was a great step in advance, but, of course, was confined to navigable waters. The canal came into being a few years later, and succeeded for a time particularly as regards slow moving freight, but it is now practically extinct. Slightly over a century ago came the railroad; and its value as a means of transportation was immediately appreciated, and to such an extent as to create considerable competition between localities for the privilege of having a railway come to them; as, for example, in Burlington. In many of the towns the railway tracks ran down the middle of the principal street. Railway and steamer transportation was in some cases combined as, for instance, the Camden and Amboy Railroad, a through line between Philadelphia and New York with a terminus at South Amboy and steamer transportation thence to New York City both through Staten Island Sound and the lower bay of New York. So long as the common roads remained subject to weather conditions because of soft surfacing, and the use of vehicles was confined to horses and sometimes oxen, the railroads were distinctly in the saddle, not only as regards their trunk lines, but with respect to numerous branch lines extending to places not on the main lines. Instances of this in the northern part of the state were the branch line of Rahway to Perth Amboy, a spur to Millstone from the Pennsylvania lines, the High Bridge branch from the Central Railroad of New Jersey: the Chester branch from the Morris and Essex, the Trenton branch from the Reading: and the Sussex Railroad itself may be considered as one of these branches. All those branches did both a freight and passenger business, though it may be said to be common knowledge that the freight business was the principal consideration. But with the invention and development of the motor vehicle at the end of the 19th century a radical change of conditions ensued. The speed of a motor vehicle, even at the very outset, discounted that of the horse, and with the increase in the number of motor vehicles there came the insistent demand for better roads on which to use them. The telford and macadam roads were already in use to some extent and more roads of a similar character were imperatively demanded. Some years ago the late Edwin A. Stevens, who was appointed by Governor Woodrow Wilson as road commissioner, wrote an article for Scribner’s Magazine on ihe subject of improved roads, and in that article ventured the prediction that in constructing roads in the future it would be necessary for the engineers to anticipate a speed limit of forty miles an hour. Such a prediction seems laughable at this day, but was entirely reasonable at that time, Which must have been about 1912. , The effect of these improved roads and improved motor vehicles on the railroad situation is, of course, known to all. As regards short runs for freight, the motor truck may take on its load directly at the factory and discharge it at the warehouse, miles away. As regards passengers, the motor bus has pervaded the country and, together with the private automobile, has deprived the railroads of vast numbers of passengers formerly carried; and it is precisely this last feature of the situation which prompted the applications to the Public Utility Commissioners that are before us in the present case. It is the case of three branch railroads, alike in character, endowed with the privileges already mentioned, but on terms prescribed in the Railroad Act of performing the double duty of carriage. on the one hand of freight, and on the other hand of passengers, and, finding that the carriage of passengers is done at considerable loss, seeking to obtain from the state regulatory agency a release of the obligation to carry passengers while retaining all the franchises that were granted partly in consideration of that obligation.

We are of opinion that the cessation of the carriage of passengers would be clearly a breach of the contract (and indeed this seems not to be denied), and further that no power of the Utility Board to waive this contract obligation and erase it from the contract is conferred by statutes either expressly or by implication. See “Petition of Boston and Maine Railroad," 82 N. H. 116; 129 Atl. Rep. 880. The statutory requirement in our Railroad Act is specific, and in nowise countervailed by regulatory powers granted in the Utilities Act.

The judgment of the Supreme Court will be reversed, and a judgment entered in this court setting aside the decision of the Utility Commission and denying the application for a discontinuance or abandonment of passenger service on the three branches. Hoxsey v. Paterson, 39 N. J. L. 489.