On appeal from the former New Jersey Supreme Court, whose opinion is reported in 137 N.J.L. 440 (Sup. Ct. 1948).
For reversal: Chief Justice Vanderbilt and Justices Oliphant, Burling and Ackerson. For affirmance: Justice Case. The opinion of the court was delivered by Oliphant, J.
This is an appeal from a judgment of the former Supreme Court dismissing a writ of certiorari allowed under the former practice, which judgment affirms a determination and order of the Board of Public Utility Commissioners, that the operations of the appellant were subject to the jurisdiction of the Board, that the appellant failed to comply with the applicable statute and the rules and regulations of the Board, and that the appellant should cease and desist from the operations challenged by the complaint of the Lincoln Transit Co., Inc., filed pursuant to the statute.
This appeal disputes directly the jurisdiction of the Board over the operations of the appellant and secondarily the reasonableness of the regulations prohibiting the use of the sedan type of equipment in the appellant's operations.
Appellant operates an express passenger service between New York, N.Y. and Lakewood and Asbury Park in this state, and the service is provided by the operation of several sedan type, seven passenger automobiles which pick up the individual passengers at their homes or designated localities and deliver them to destinations in the aforesaid cities. It is undisputed that the operation is interstate in character, that appellant has received the proper authorizations of the federal Interstate Commerce Commission, and that no intrastate service is involved.
The regulation of the Board in question is B-7, par. 31 (b) which specifically prohibits the use of equipment of the "sedan type" as an autobus in operations of this type.
The regulation was promulgated under the authority of R.S. 48:4-18 which provides as follows:
"The board of public utility commissioners may prescribe reasonable regulations with respect to the construction and equipment of autobusses carrying passengers between points in this state and points in other states. Such regulations shall be consistent with regulations prescribed by the board applying to the operation of autobusses between points in this state".
The appellant's first point is that Regulation B-7 is not legally applicable to the appellant since it does no intrastate business in this state.
We agree with the opinion below that the regulation does apply to the appellant and concur in the reasons stated therein for such conclusion. We are also clear that the amendment of R.S. 48:4-1 by P.L. 1946, Chap. 125, p. 602 does not suggest a legislative design to exclude autobusses engaged exclusively in interstate passenger service from the categories or subject to regulation under R.S. 48:4-18. The regulation has been in effect under statutory authority since 1927 and applies not only to intrastate operations, but also to interstate operations in which passengers are picked up or discharged at locations within this state. As the lower court said "The state has a distinct and special public interest in the transportation of persons in this class." Sproles v. Binford, 286 U.S. 374, 76 L. Ed. 1167, 52 S. Ct. 581. The challenged regulation operates in the part of such field reserved to the several states. Sproles v. Binford, supra; South Carolina State Highway Dept. v. Barnwell Bros., 303 U.S. 177, 82 L. Ed. 734, 58 S. Ct. 510; Maurer v. Hamilton, 309 U.S. 598, p. 608, 84 L. Ed. 969, 60 S. Ct. 726. In our view it is not a question of public policy or of comity, but of a constitutional power residual in the several states exercisable only by them.
This brings us to the basic question here presented as to the reasonableness of, or necessity for, a regulation absolutely prohibiting the use of sedan type automobiles in the appellant's operations.
The appellant contends that regulation B-7 is unreasonable and arbitrary and therefore is illegal ...