On appeal from a determination and order of the Board of Public Utilities Commissioners of the State of New Jersey.
For modification and remandment -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Wachenfeld, Burling, Jacobs and Brennan. Opposed -- None. The opinion of the court was delivered by Oliphant, J.
This is an appeal from an order of the Board of Public Utility Commissioners dated April 23, 1952, which denied an application of the Pennsylvania Railroad Company to discontinue certain local commuter trains designated as No. 2591, No. 2594, No. 2592 and No. 2593 on what is known as the Trenton-Burlington-Philadelphia line of the applicant.
The application involved the discontinuance of two local commuter trains in each direction each day; two being operated westbound in the morning and two operated eastbound
in the evening. The trains operated from and to Trenton and made stops at Broad Street, Trenton; Bordentown; Roebling; Florence; Burlington; Edgewater Park; Beverly; Perkins; Delanco; Riverside; Cambridge; Riverton; Palmyra; Arch Street, Palmyra; and Delair in New Jersey. Prior to the abandonment of the Broad Street Station in Philadelphia on April 27, 1952 these trains ran into that terminal from Delair by way of Frankford Junction, and subsequent to April 27, 1952 they have been operated between Trenton and Frankford Junction with connecting service on the railroad's main line between Frankford Junction and the Pennsylvania Station at 30th Street and the suburban station at 16th Street, Philadelphia, Pa.
Four days after the order under appeal was entered Broad Street Station was abandoned on April 27, 1952, pursuant to an order of the Pennsylvania Public Utilities Commission. Apparently there is no approval or authorization by the Interstate Commerce Commission for the abandonment of the line running from the Delair Bridge into the Broad Street Station, since the railroad has taken the position that no such order of the Interstate Commerce Commission is required under 49 U.S.C.A., section 1, paragraph 18.
The history of this part of the Pennsylvania Railroad system is that in 1830 the Camden & Amboy Railroad and Transportation Company was incorporated by the Legislature and the chartering act required the railroad to use a ferry service at each end of its line. L. 1829, p. 83. For the purposes of this case the ferry service involved would be at Camden, and for many years this line ran directly to Camden and connected with the ferry service. In 1894 certain companies were incorporated both in New Jersey and Pennsylvania for the purpose of constructing the Delair Bridge and creating an interstate connection with the Camden & Amboy Railroad and Transportation Company. These two companies merged into a New Jersey corporation known as the Delaware River Railroad and Bridge Company, and in 1896 it leased the bridge and line to the Pennsylvania
Railroad Company for a term of 999 years. By merger and consolidation the Pennsylvania Railroad Company since 1871 has exercised and enjoyed the franchises of the Camden & Amboy Railroad and Transportation Company.
After the opening of the Delair Bridge certain of the trains, including those in question, no longer had their terminus in Camden but crossed the bridge and continued on to the Broad Street Station in Philadelphia. Other trains on this line still continued to operate into the Broadway Station and the Federal Street terminal of the railroad in Camden, a distance of 5.4 miles from the Delair Bridge.
While the obligation of the Pennsylvania Railroad through its lessors required it to carry passengers to Camden and then by ferry to Philadelphia, there is no such charter obligation to do so by way of the Delair Bridge. The ferry service was operated and maintained through all these years from Camden to Philadelphia until April 1, 1952, a short time before the order under attack here was made. It was discontinued on that day pursuant to an order of the Interstate Commerce Commission, but we are not informed of the ground of this order.
The proofs in this case were submitted to the Board on the basis of the trains running into the Broad Street Station. These proofs show that the Board found that the four Philadelphia trains proposed for discontinuance are among the seven most heavily patronized of the 13 trains operating on this particular line. The Board further found that the failure to earn an adequate return from the passenger service operated on the line was not of itself a sufficient reason for the discontinuance of these four trains; that the recent extraordinary industrial and residential development under way in the territory through which this line passes may reasonably be expected to result in a substantial increase in the number of passengers using the line, including these four trains, and in the volume of freight which will probably be carried in the future. The Board came to the conclusion that on the proofs submitted the record did not establish that
the reasonable requirements of public convenience and necessity for such service would permit the discontinuance of these trains. As to these findings on the proof as proffered we find ...