On appeal from the Supreme Court, whose opinion is reported in 128 N.J.L. 35.
For the appellants, Edward C. Waddington.
For the Board of Public Utility Commissioners, John A. Bernhard.
For the respondent Pennsylvania-Reading Seashore Lines, Floyd H. Bradley (Grace Heritage Smith, and H. Merle Mulloy and Windsor F. Cousins, of the Philadelphia bar, on the brief).
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 thereon.
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" case, 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 for 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) for 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 ...