For the prosecutor, William H. Speer.
For the defendants, Hobart, Minard & Cooper (Duane E. Minard and John J. Gaffey).
Before Justices Case, Donges and Colie.
This writ of certiorari brings up for review an order of the Board of Public Utility Commissioners. It is agreed between the parties hereto, Public Service Co-ordinated Transport, prosecutor, and Erie Railroad Company, defendant, that:
"The only question in controversy is whether the decisions dated June 29th, 1939, and March 27th, 1941, respectively, of the Board of Public Utility Commissioners are valid under Chapter 57 of the laws of New Jersey, approved March 13th,
1913; that is to say, did the Board err in and by said order of June 5th, 1941, in refusing to add to Erie's cost of the project, expenses incurred by Public Service in altering its property and structures in compliance with the order of April 20th, 1915, for the purpose of ascertaining the total cost to which Public Service's 10% was to be applied, and deducting from the amount of the 10% so ascertained the amount of Public Service's expenses, in determining the amount of money payable by Public Service under the statute and said order of April 20th, 1915."
The order of the Board of April 20th, 1915, was made in pursuance of the Fielder Act, chapter 57 of the laws of 1913. That order directed the elimination of certain grade crossings in the City of Paterson and provided, among other things:
"And it appearing to the Board that the street railway operated by Public Service Railway Company uses the said crossings at (1) Park Avenue and Market Street, (2) Broadway, and (3) River Street, the Board in accordance with the power and authority vested in it by said act further orders the Public Service Railway Company to pay ten per centum of the alterations, changes, relocation and opening, required by this order, including damages to adjacent property, directly chargeable to the crossings, and each of them so used by the said street railway operated by it.
"And the said Erie Railroad Company and said Public Service Railway Company are ordered to keep specific and complete records of the expenses directly chargeable to the crossings and each of them, so used by said street railway of said Public Service Railway Company and leave is hereby given to said companies, or either of them, to make application to the Board for further order in the event that they cannot agree upon the amount of such expenses so directly chargeable to said crossings used by the street railway operated by said Public Service Railway, or any of them."
It is observed that this order of 1915 does not specifically determine the question posed in the above quotation from the ...