For the Central Railroad Company, William A. Barkalow, George S. Hobart and Charles E. Miller.
For the state highway commission, William A. Stevens, attorney-general, Walter H. Bacon, Jr., and Maximilian M. Stallman.
For the board of public utility commissioners, John A. Bernhard.
Before Justices Parker, Lloyd and Heher.
The opinion of the court was delivered by
LLOYD, J. The state highway commission presented petitions to the board of public utility commissioners praying orders from that body approving the construction of certain proposed crossings of the Central Railroad Company on routes 30 and 31 of the state highway system, first setting forth that efforts had been made to come to an understanding with the railroad company without success.
The board found in a general way that the proposed crossings were not required by traffic conditions or in consideration of public safety. It concluded, however, that the legislature had vested the execution of the state's highway policy as to railroad crossings in the highway commission and by chapter 88 of the laws of 1929, page 138, had imposed upon railroad companies the obligation to co-operate with the commission in the prompt execution of the work, and for that reason declined to act further either on the petitions, or on counter prayers of the railroad company.
Our examination of the proofs in the cases leads us to the same conclusions as those reached by the board on the question of fact. Both parties, however, to the litigation insist that the board took too narrow a view of the authority conferred upon it by the laws of the state and urge findings and direction in favor of their respective contentions on the merits.
We agree with the view that the board was vested with ample authority to deal with the situation as presented. It
has been the uniform policy of the state to commit to that body the various questions arising respecting the railroad crossings of public highways. In 1923 it was stated by Mr. Justice Parker, in the case of Atlantic City Railroad v. Pleasantville, 99 N.J.L. 328; affirmed (Court of Errors and Appeals), 100 N.J.L. 394, "that by a course of legislation beginning in 1911 and continued to the [then] present time the supervision and regulation of railroad crossings throughout the state have been substantially turned over to the public utility commission," subject of course to the power of this court to review on certiorari. The contention that the act of 1929, chapter 88, contemplates a modification of this power does not appeal to us. In its relevant sections it provides:
Section 2. It shall be the duty of the state highway commission to furnish the annual program to every company owning or operating a railroad in this state which is called upon to perform work under the annual program and it shall be the duty of every such railroad company to co-operate with the ...