On appeal from Superior Court, Appellate Division, whose opinion is reported in 4 N.J. Super. 191.
For affirmance -- Justices Case, Oliphant, Burling and Ackerson. For reversal -- Chief Justice Vanderbilt, and Justices Heher and Wachenfeld. The opinion of the court was delivered by Burling, J.
[3 NJ Page 120] This is an appeal by Newark-Elizabeth Independent Bus Owners Association, North Newark Independent Bus Owners Association, and Will Morris, Inc., from a judgment
of the Appellate Division of the Superior Court of New Jersey made on June 16, 1949, based upon a unanimous opinion affirming a decision of the Board of Public Utility Commissioners under date of October 20, 1948, approving the application of Public Service Coordinated Transport for the utilization of auto busses in lieu of all-service vehicles (trolley busses) operated by it on its Mt. Prospect All-service Line No. 27, extending from Nye Avenue and 20th Street in Irvington, New Jersey, to Verona Avenue, in Newark, New Jersey.
The appeal is before us on the theory that a constitutional question is involved. Constitution of 1947, Article VI, section V, paragraph 1(a). Supreme Court Rule 1:2-1(a).
The action of the Board of Public Utility Commissioners in approving the respondent's application was predicated upon R.S. 48:15-41, as amended by P.L. 1946, c. 71, the pertinent part of which provides as follows:
"* * * Whenever the Board of Public Utility Commissioners has approved * * * the substitution of vehicles of the character described herein (trolley buses) on any line (of street railway) or part thereof, * * * the company operating any such line may, from time to time, with the approval of the Board of Public Utility Commissioners, utilize in lieu of such vehicles, autobusses in the operation of any such line, or part thereof, * * *."
The foregoing statute contains no provision requiring an applicant to obtain the consent of the municipalities through which the line is operated.
It is conceded that the respondent, Public Service Coordinated Transport, did not procure municipal consent of the Town of Irvington and the City of Newark, in which municipalities the aforesaid route is located, for the operation of the said autobusses.
It is the contention of the appellants that the foregoing statute should be read in conjunction with R.S. 48:4-3, as amended by P.L. 1946, c. 131, which provides as follows:
"No autobus shall be operated or run while carrying passengers for hire wholly or partly along any street in any municipality, whether
such operation is over a route wholly or partly within the territorial limits of the municipality, except as set forth in section 48:4-10 of this Title, until the person owning or possessing the right to use the same shall obtain the consent of such municipality given by its governing body or the official board or body thereof which by law has control of the public streets therein for such operation and the use of any street or streets in such municipality; * * *."
The appellants urge that unless the two foregoing statutes are read together, then R.S. 48:15-41 in so far as it relieves the respondent from the necessity of obtaining municipal consent for the operation of autobusses is violative of the equal protection clause of section 1 of the Fourteenth Amendment of the United States Constitution. This argument flows from the fact that the appellants are engaged in the operation of autobus lines in competition with the respondent and are ...