On application for writ of certiorari.
For the applicant, Maurice A. Cohen.
For the respondent Board of Public Utility Commissioners, John A. Bernhard.
For sixty-seven other respondents, John R. Kelly and Theodore C. Baer.
Before Justices Case, Donges and Heher.
The opinion of the court was delivered by
CASE, J. The question is whether the Board of Public Utility Commissioners was right in deciding that it had no authority to direct 67 individual bus owners to unite in constructing and maintaining a bus shelter wherein patrons of the various buses may be housed while waiting for transportation. The proposed site is along Hudson County Boulevard at the Bayonne-Jersey City boundary line, on lands of the Hudson County Park Commission. Applicant represents that it has obtained permission from the Park Commission for such erection. Although the owners of the buses have, for their own purposes, effected an organization known as the South Hudson Boulevard Bus Owners Association, nevertheless it is the individuals, either corporate or natural, who own and operate and it is against them that the order is sought.
If there is authority in the board it must be found in R.S. 48:2-23, which has both the form and the substance of section 17(b) of the original act concerning public utilities, chapter 195, Pamph. L. 1911, passed at a time which antedated the auto bus and when public utilities were defined (section 15) to include any "steam railroad, street railway, traction railway, canal, express, subway, pipe line, gas, electric light, heat, power, water, oil, sewer, telephone, telegraph system, plant or equipment for public use, under privileges granted or hereafter to be granted by the State of New Jersey or by any political subdivision thereof." R.S. 48:2-23 provides: "The board may, after hearing, upon notice, by order in writing, require any public utility to furnish safe, adequate and proper service and to maintain its property and equipment in such condition as to enable it to do so."
Applicant relies upon that statutory provision and upon the following decisions of either court or board: In re Station at Passaic Park, 40 N.J.L.J. 238; Erie Railroad Co. v. Public Utility Commissioners, 85 N.J.L. 420; Delaware, Lackawanna and Western Railroad Co. v. Board of Public Utility Commissioners, 83 Id. 212; Erie Railroad Co. v. Board of Public Utility Commissioners, 89 Id. 57 (at p. 78); Township Committee, &c., v. Central Railroad Co., 47 N.J.L.J. 169; In re Public Service Co-ordinated Transport, Volume XIV of the Reports of the Board of Public Utility Commissioners, page 34 (July 12th, 1928-April 8th, 1930).
In re Station at Passaic Park, supra, was a matter heard and decided by the commission and had to do with the rebuilding by the Erie Railroad Company of one of its existing railroad stations. The decision of the Supreme Court in Erie Railroad Co. v. Public Utility Board, supra, reported in 85 N.J.L., concerned the furnishing of drinking water on railroad trains and reversed an order which had been made by the board and which required the company to provide a supply. The cited Delaware, Lackawanna and Western Railroad Company case affirmed a commission order which directed a railroad company, if it supplied drinking water, to do so with individual cups or a sanitary glass. The reference to page 78 of the Erie Railroad Company case reported
in 89 N.J.L. concerns a dictum to the effect that the Board of Public Utility Commissioners would have power, under section 17(b) of the statute, to order a relocation of a railroad station. Township Committee v. Central Railroad, supra, related to the extension of existing railroad stational facilities. The case printed at page 34 of Volume XIV of the Board's Reports was a dismissal of a complaint regarding the crowding of a sidewalk by prospective patrons of the cars of the Public Service Co-ordinated Transport and held that the question of relieving undue congestion was for the police. None of the cited decisions goes even remotely to the question of ...