For the prosecutor, John A. Hartpence.
For the defendants, Walter D. Van Riper, John W. Griggs and Morgan R. Seiffert.
Before Justices Donges, Colie and Eastwood.
The opinion of the court was delivered by
DONGES, J. This is a writ of certiorari allowed to review the action of the New Jersey State Aviation Commission in issuing to the defendant Aeromotive Corporation of New Jersey, Inc., a license for the operation of an airport on lands owned by it in the Township of North Brunswick, Middlesex County. The airport is located west of the right of way of the Pennsylvania Railroad Company, the end of the east-west runway being something over 600 feet from the railroad tracks. The railroad at this point is electrified and there are erected along the tracks poles and wires composing a catenary system to a height of as much as 80 feet. The objection of the railroad to the operation of an airport at this site is based upon the possibility of planes striking the catenary system, thus damaging this system, the trains operating past the airport and endangering the lives and safety of its passengers and workmen.
Upon application being made by Aeromotive Corporation of New Jersey, Inc., for a license to operate the airport, the prosecutor, Pennsylvania Railroad Company, made known to the Commission its objection. A hearing was held at the State House on December 6th, 1945, at which counsel for the railroad and its chief engineer, as well as representatives of other objecting property owners in the vicinity, appeared and were permitted to state the grounds of their objection to the issuing of the license. At the request of one of the objectors (not the present prosecutor) a date was fixed for a continuation of the hearing on January 7th, 1946, at New Brunswick. This hearing was held and the parties were heard. Several persons were examined and cross-examined by counsel, although they apparently, according to the record, were not sworn as witnesses.
Under date of February 20th, 1946, the Commission notified counsel for the prosecutor that it had determined to dismiss
the objections to the airport "on the grounds that they were without merit consistent with Federal Civil Aeronautics Administration Standards for safe operation of aircraft." Accordingly a license was granted with a restriction, however, providing "That no aircraft shall take-off to the East from the EW Runway." The prosecutor insists that the landing of aircraft from the east requires such low flights over the railroad tracks and wires as to constitute a hazard and made the licensing of the airport improper. The other objectors to the granting of the license before the Commission have not joined in the prosecution of this writ of certiorari.
It is contended by the prosecutor that the proceedings before the Commission were not in conformity with the law. Reference is made to the statutory provision, R.S. 6:1-31 (Pamph. L. 1938, ch. 48), that "It shall be the duty of the commission to hold public hearings on matters affecting aeronautics; to conduct investigations, inquiries and hearings concerning matters covered by the provisions of this chapter;" &c., and it is argued, "The prosecutor is of the opinion that the procedure adopted falls short in many respects of what is necessary before a quasi -judicial determination involving extensive property rights can be validly rendered. Fundamentally, the trouble with the procedure adopted by the Commission was that instead of being according to a set of rules published and made available to all interested parties, it was of spontaneous development without plan or course. "* * * Informality was the keynote and while this of itself is not objectionable, it is a basis for concluding that the procedure was most casual."
The statute provides in R.S. 6:1-56, "No order shall be set aside in whole or in part for any irregularity or informality in the proceedings of the commission unless the irregularity or informality tends to defeat or impair substantial right or interest of the prosecutor in certiorari. " We conclude that there was nothing in the manner in which the Commission dealt with the matter that was prejudicial to the prosecutor for the reason that at both sittings of the Commission ample ...