For the prosecutors, Waddington & Tilton.
For Board of Public Utility Commissioners, John A. Bernhard.
For Pennsylvania-Reading Seashore Lines, French, Richards & Bradley (Floyd H. Bradley) and Grace Heritage Smith (H. Merle Mulloy and Windsor F. Cousins, of the Philadelphia bar).
Before Justices Bodine, Perskie and Porter.
BODINE, J. This case presents two questions for decision. The first question is the power of the Board of Public Utility Commissioners to authorize a railroad company operating in this state to discontinue all passenger service. The second question is the reasonableness of the action taken in this case. The railroad voluntarily continued the service until May 20th of this year so that we might review the same. If the situation as to the passenger operation changes by reason of the national defense necessity, the road may be taken over or the Utility Board will act as it may be then advised. Nevertheless, we think the questions raised should be decided so that the board may know the extent of its power.
The General Railroad Act, N.J.S.A. 48:12-99, requires every railroad to run trains for the transportation of persons and property. This obligation, however, must be measured by public necessity and convenience. The argument to the contrary seems to be that the railroad must run passenger
trains at a terrific loss or abandon the franchise, even though the public may travel as easily and reasonably by other conveyances. There seems to be no reason why a railroad must supply transportation for a few passengers who are unwilling to ride in adequate buses paralleling the lines of operation.
Under date of July 23d, 1941, Mr. Ralph Budd, Transportation Commissioner of the Council of National Defense, warned all railroads that troop transportation in 1942 would exceed that of 1941 by 40 to 100 per cent.; that unnecessary trains should be discontinued and that there would be no priorities for further passenger equipment. Again he warned, in August of 1941, that there must be elimination of unnecessary competitive services.
If the argument be sound that there is no way for a railroad to discontinue an unnecessary service, except to forfeit its charter, then planning for national defense becomes ineffective and our efforts must be slowed down because of a few willful people who like to ride short distances in railroad trains.
This court cannot attribute such meaning to the pertinent legislative enactments. Vice-Chancellor Garrison in Jacquelin v. Erie Railroad Co., 69 N.J. Eq. 432 (at p. 440), said: "The Supreme Court of the United States has suggested that this subject of the regulation of the operation of carriers, in the matter of stations, frequency of trains and the like, is one for legislation and administration, and that the courts should not originate provisions with respect thereto, but should confine themselves to interpreting and applying them. Northern Pacific Railroad Co. v. Washington, ex rel. Dustin, 142 U.S. 492; 35 L. Ed. 1092; and similar reasoning will be found in the case of Delaware, Lackawanna and Western Railroad Co. v. Central Stockyard, & c ., Co., 45 N.J. Eq. (18 Stew.) 50 (at pp. 65 et seq.), (Vice-Chancellor Van Fleet, 1889); S.C. on appeal, 46 N.J. Eq. (1 Dick.) 280." And again (at p. 441): "In this state, where we have no such ...