On appeal from Department of Public Utilities, Board of Public Utility Commissioners.
For affirmance -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Burling, Jacobs and Brennan. For reversal -- Justice Wachenfeld. The opinion of the court was delivered by Burling, J.
The Central Railroad Company of New Jersey and the New York & Long Branch Railroad Company (hereinafter referred to as the Railroads), New Jersey corporations, appealed an order (filed December 20, 1951) of the Board of Public Utility Commissioners, Department of Public Utilities, State of New Jersey (hereinafter called the respondent) to the Superior Court, Appellate Division, under the provisions of Rule 3:81-8. Prior to hearing before that court certification of the controversy was allowed upon our own motion.
The order of the respondent from which the instant appeal stems relates to the intrastate commuted (passenger) fares of the Railroads, and constitutes a sequel to the decision of this court setting aside two orders of the respondent filed during earlier phases of these proceedings. See Central R. Co. of N.J. v. Dept. of Public Utilities, 7 N.J. 247 (1951). A brief outline of the entire proceedings is warranted on the present appeal in view of the course they have followed.
The Railroads participated in rate adjustment proceedings before the respondent in 1947 which culminated in the respondent's order effective early in 1948, resulting in an increase in intrastate commuted fares. This order was not appealed.
In June, 1948, the Railroads having become dissatisfied with the results of the existing intrastate commuted fares
filed schedules of new proposed increases therein with the respondent. A stay of the effective date of these filed schedules, and a hearing on the reasonableness thereof was ordered by the respondent. This was the inception of the proceedings under review, being Docket No. 4000 of the respondent. The stay so ordered was continued by consent pending the initial hearings and until the respondent filed its order of March 15, 1949. This order rejected the schedules as filed but allowed the Railroads an increase in their rates for intrastate commuted fare passengers. The resultant increased fares became effective March 27, 1949, and are those under which the Railroads are currently operating this category of service. On July 5, 1949, groups representing passengers of the railroads affected by the fare increase filed with the respondent a "Petition for Reconsideration." The intervenors' action in this respect stirred the respondent to an exercise of its statutory authority to order a rehearing. See Central R. Co. of N.J. v. Dept. of Public Utilities, supra (7 N.J., at pp. 250-252 and 254-255). The respondent, at the close of the rehearing so initiated, on September 27, 1950, entered an order reducing the intrastate commuted fares to a level recommended by an Interstate Commerce Commission examiner (but apparently not adopted by the Interstate Commerce Commission), but which level was higher than that of the rates in existence at the time of the inception of these proceedings in 1948.
The Railroads appealed the September 27, 1950, order of the respondent, arguing that there was no evidence reasonably to support the order, that it was without the jurisdiction of the respondent and violated the Railroads' constitutional rights. Our review of the proceedings disclosed that neither the March 15, 1949, order nor the September 27, 1950, order was valid. The March 15, 1949, order failed to include findings of fact on rate base, expenses, and rate of return (see 7 N.J., at p. 263) and the September 27, 1950, order was similarly deficient, this court, inter alia, expressly holding that the September 27, 1950, order contained "no finding
of fact concerning expenses" (see 7 N.J., at p. 264). This court set aside both of the foregoing orders and remanded the matter to the respondent for a rehearing on all the evidence adduced, including that evidence introduced at the initial hearings, the rehearing ordered by the respondent and the second rehearing resulting from the mandate of this court. It was carefully pointed out that the burden of proof remained with the Railroads until the ultimate determination of the matter (see 7 N.J., at pp. 255-257). The Railroads did not seek a rehearing on any of the issues involved.
Pending the appellate review above recited the rate level of the Railroads' intrastate commuted fares was maintained under a stay granted by the Superior Court, Appellate Division, at the scale resulting from the March 15, 1949, order of the respondent. The stay was in effect continued by the mandate of this court pending rehearing on remand.
On December 20, 1951, the respondent, after a rehearing of these rate proceedings, ordered pursuant to the mandate of this court, denied the increase in intrastate commuted fares sought by the Railroads for the reason that the Railroads had not shown the same to be just and reasonable and ordered the Railroads to revert to the rates existing in 1948 when these proceedings had their genesis. The Railroads appealed from this order to the Superior Court, Appellate Division, and applied for a stay of execution thereof. This court, prior to hearing of the appeal and of the motion for stay before the Appellate Division allowed certification on our own motion. At the same time we granted a stay of the effect of the ...