For the prosecutor, Louis Ogust.
For the defendant, Frank H. Sommer and Harold H. Fisher.
Before Justices Case, Donges and Porter.
The opinion of the court was delivered by
DONGES, J. This certiorari was allowed to review a decision of the Board of Public Utility Commissioners of the State of New Jersey in the matter of the "Complaint of Lincoln Transit Co., Inc., alleging that one David Greenfield transports passengers between points in this State and points in New York State in auto buses the construction and equipment of which violates the regulations of the Board."
It is undenied that prosecutor is operating under an order of the Interstate Commerce Commission for the issuance to prosecutor of certificates of public convenience and necessity "authorizing special operations as common carriers by motor vehicle in the transportation of passengers and their baggage, between Lakewood, N.J., and New York, N.Y. in on-call, non-scheduled services over irregular routes, commencing November 1, and ending April 30, of each year, both dates inclusive."
Prosecutor claims and argues that the Board of Public Utility Commissioners is without jurisdiction over the prosecutor because he was operating under a certificate of convenience and necessity issued by the Interstate Commerce Commission under the Motor Carrier Act.
The burden of prosecutor's argument is that the state is without power to regulate operation of motor vehicles where the federal government, through the appropriate agency, has granted permission, and that, having received such permission, the state can impose no regulation, and that the whole matter is res judicata by the determination of the Interstate Commerce Commission.
In the report of the examiner who heard and examined the matter for the Interstate Commerce Commission. Exhibit R-1, it is said:
"Size and weight of motor vehicles are matters which the Commission is authorized to investigate and report on the need for regulation. (Section 225 of the act.) At the present time there is no federal dimensional regulation relative to motor vehicles and in the absence of such specific legislation state regulation shall prevail. South Carolina Highway Department v. Barnwell Bros., 303 U.S. 177; 82 L. Ed. 734.
"It is not the function of the Commission to interpret state laws or regulations made thereunder. It is reasonable to assume that a carrier will comply with all ...