For the prosecutor, Thomas J. Armstrong and Messano & Messano.
For Inter-City Transportation Co., Inc., A. Harry Moore.
Before Justices Case, Donges and Porter.
The opinion of the court was delivered by
CASE, J. Prosecutor questions three decisions by the Board of Public Utility Commissioners with respect to the approval of municipal consents for intrastate bus operation by the Inter-City Transportation Co., Inc. The original application for approval appears to have been filed on December 2d, 1941. Hearings were held thereon and on May 21st, 1942, the board denied the application upon the ground of policy. On application of Inter-City a reargument of the case was had July 2d, 1942, following which, on October 22d, 1942, the commission modified its earlier decision and approved seven municipal consents (Ridgewood, Woodridge, East Rutherford, Carlstadt, Maywood, Hasbrouck Heights, Union City) for the operation of fifteen buses subject to restrictions and conditions. Later, September 24th, 1942, an application was filed for approval of an eighth municipal consent, that of the City of Hackensack, and on December 23d, 1942, approval was granted. Meanwhile, early in December, 1942, the present prosecutor, the Hudson Bus Transportation Co., Inc., applied to the commission alleging itself to have been aggrieved by the decision of October 22d, 1942, and asking that the decision of that date be vacated and that the matter be reheard. The commission heard such witnesses as prosecutor produced and on March 25th, 1943, filed a decision wherein it declined to vacate the earlier finding.
The writ of certiorari, as printed in the record, bears no allocatur. There is a notation which we understand is intended by counsel to carry the information that there had been an opinion to the effect that the writ should be allowed. No opinion is submitted or referred to. We express our view that, supposing the circumstance to be as we have assumed, the writ should nevertheless have been submitted to the court or a justice for formal allowance.
We have before us the respective decisions of May 21st, 1942, October 22d, 1942, December 23d, 1942, and March 25th, 1943, with the various proceedings leading to those several decisions. The refusal by the board to disturb its earlier decisions appears to be the excuse for an attempted review of them, the one against which main dissatisfaction is expressed, namely, that of October 22d, 1942, having been made a year before the issuance of the writ.
Prosecutor's chief contention is, as we have said, that the board's decision of October 22d, 1942, for one reason or another, was unlawful. We believe that prosecutor was in laches in seeking a writ to review the decisions of October 22d and December 23d, 1942, and that it may not, having omitted its suit for review in season, apply for discretionary reconsideration by the tribunal of original jurisdiction and, failing therein, make that refusal the ground of attack. The Public Utilities Statute, R.S. 48:2-43, provides that no certiorari shall be allowed unless application therefor be made within thirty days from the date upon which the order becomes effective. Whether or not a statutory limitation upon the time within which certiorari may issue is reasonable will be determined upon the facts of each case. Red Oaks, Inc., v. Dorez, Inc., 117 N.J.L. 280; Owen v. Atlantic City, 125 Id. 145. It does not appear when the application for the present writ was made, but it was of necessity some time after, and if the date of the writ is a criterion a long time after, March 25th, 1943. We see no reason why an application to the Board of Public Utility Commissioners to reconsider a decision should be in a status different from a like application to any other tribunal. An appeal to the reviewing jurisdiction of a higher court should be directed at the decision in which the error is said to lie and not at the refusal of the trial tribunal to reconsider, or upon reconsidering to change, that decision. Cf. Pink v. Deering, 129 Id. 552; In re Whittier, 115 N.J. Eq. 563. The decision of March 25th, 1943, does two things; (1) it denies prosecutors' request to vacate the decision of October 22d, 1942, and (2) it modifies certain of the restrictions appended to the earlier decision. Prosecutor does not complain of the modifications.
Its alleged grievance lies in the refusal to vacate. We find no such abuse of discretion in that determination as within our decisions (Nelson v. Eastern Air Lines, Inc., 128 N.J.L. 46, 58) is ground for reversal of a discretionary order. It seems, therefore, on procedural grounds, that none of the official acts complained of should be disturbed. We are led to these observations by the lack of an allocatur.
Nevertheless, we have considered the merits as presented. The initial refusal by the board on May 21st, 1942, to approve certain municipal consents and so to authorize Inter-City to operate a limited intrastate bus service was not an adjudication of legal rights. It was not such a judgment as would have been res judicata against a later renewal of the application for affirmative action. It went on a question of public convenience and public policy, control over which had been reposed by the legislature in the board, R.S. 48:2-14. Hudson Bus Transportation Co., Inc., was represented at all hearings on Inter-City's original application. The jurisdiction of the board to rehear, and to extend, revoke or modify an order is statutory, R.S. 48:2-40. When the request by the latter company for a rehearing on its application came on to be heard the Hudson Bus Company had full notice. It was clear that the moving party and the board purposed to review the testimony already taken, and no objection was voiced to the procedure. Inter-City had brought and offered witnesses but their examination seems to have been considered unnecessary. Prosecutor was granted and presumably availed itself of the privilege of filing a brief. On the record as it stood and on the new arguments the board made its decision of October 22d, ...