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In re Application of Greenville Bus Co.

Decided: December 20, 1954.

IN THE MATTER OF THE APPLICATION OF GREENVILLE BUS COMPANY FOR APPROVAL OF MUNICIPAL CONSENT OF THE CITY OF JERSEY CITY, FOR THE OPERATION OF TEN (10) AUTOBUSES ON A NEW ROUTE, TO BE KNOWN AS THE GREENVILLE-JOURNAL SQUARE BUS ROUTE (P.U.C. ROUTE FILE NO. 407-171). HENRY HOHORST, JR., AND HOHORST, INC.; GRASSO BROS., INC., AND 47 OTHERS, THE OWNERS AND OPERATORS OF MOTOR BUSES ON THE CENTRAL AND BERGEN AVENUE BUS ROUTES IN JERSEY CITY, APPELLANTS
v.
GREENVILLE BUS COMPANY, DEPARTMENT OF PUBLIC UTILITIES, BOARD OF PUBLIC UTILITY COMMISSIONERS, PUBLIC SERVICE COORDINATED TRANSPORT, CITY OF JERSEY CITY AND THE ATTORNEY-GENERAL OF THE STATE OF NEW JERSEY, RESPONDENTS



For affirmance -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Wachenfeld, Burling, Jacobs and Brennan. For reversal -- None. The opinion of the court was delivered by Jacobs, J.

Jacobs

The Board of Public Utility Commissioners approved municipal consent for the operation of six autobuses by the respondent Greenville Bus Company along a route in Jersey City which may roughly be described as running from Greenville to Journal Square via Ocean Avenue. The appellants Bergen Avenue Bus Owners, as bus operators along a route from Greenville to Journal Square via Bergen Avenue, and the appellants Central Avenue Bus Owners, as bus operators along a route from Greenville to Journal Square via Garfield Avenue, duly filed notice of appeal to the Appellate Division. Their appeal has been certified to this court under R.R. 1:10-1(a).

The Greenville section of Jersey City is located at its southerly end near the City of Bayonne. Journal Square is located towards the northerly end of Jersey City and may be described as its most important business, entertainment and transportation center. The principal thoroughfares in the city, listed from west to east, are West Side Avenue, Hudson Boulevard, Bergen Avenue, Jackson Avenue, Ocean Avenue and Garfield Avenue. All of these thoroughfares except Ocean Avenue have bus service carrying passengers to Journal Square without transfer and on a single fare. The Ocean Avenue bus lines, however, run to Grove Street and Exchange Place, rather than Journal Square; passengers going to Journal Square must transfer to other buses at the Communipaw Avenue Junction and must pay second fares. Most Ocean Avenue passengers who wish to reach Journal Square on a single fare and without transfer are required to walk east to Garfield Avenue, or west to Jackson Avenue or beyond Jackson Avenue to Bergen Avenue. And the same may be said if their destination is the important Jersey City Medical Center which is located about a mile from Journal Square.

The present Ocean Avenue bus lines are being operated by the Public Service Coordinated Transport and by the respondent Greenville Bus Company and its stockholders

who individually own and operate 30 buses. The Greenville Bus Company is itself authorized to run ten buses to Grove Street and Exchange Place, and although it has reduced the extent of its operations the public needs along the Ocean Avenue route to Grove Street and Exchange Place have still been fully met by it along with its individual stockholders and the Public Service Coordinated Transport. In 1951 the Greenville Bus Company sought and obtained permission from the City of Jersey City to operate ten buses along a route from Greenville to Journal Square via Ocean Avenue. The municipal resolution embodying the city's consent set forth that the company's application was to extend its operations so as to provide direct transportation from the Greenville section to the Medical Center and Journal Square for a single fare; that no direct route was presently available; and that the company's proposed route would provide "direct transportation and meet the necessity and convenience of Jersey City residents." Thereafter the company applied to the Board of Public Utility Commissioners for approval of the city's consent to the operation of ten buses along the proposed route from Greenville to Journal Square via Ocean Avenue. The pertinent statute (R.S. 48:2-14) provides that the "approval shall be given when, after hearing, the board determines that the privilege or franchise is necessary and proper for the public convenience and properly conserves the public interests." Although the statutory standard is general in nature, it is sufficient to guide the board and satisfy constitutional requirements. See Hohorst v. Marion Bus Transp. Co., Inc., 5 N.J. Super. 279, 281 (App. Div. 1949). Cf. Family Finance Corp. v. Gaffney, 11 N.J. 565, 575 (1953); Ward v. Scott, 11 N.J. 117, 124 (1952); N.J. Bell Tel. Co. v. Communications Workers, etc., 5 N.J. 354, 371 (1950).

Hearings on the company's application were held by the board on 20 days; over 2,000 pages of testimony were taken and many exhibits were introduced in evidence. More than 50 witnesses testified in support of the application; these [17 NJ Page 136] included 45 public witnesses who were interested in the transportation facilities along Ocean Avenue, Mr. Massoth, whose qualifications as a transportation and traffic consultant were conceded, Mr. Schulman who was then vice-president of the Journal Square Businessmen's Association and chairman of its Committee on Transportation and Sales Promotions, and other individual witnesses. In opposition to the application, various witnesses were produced by the Public Service Coordinated Transport and the Central Avenue and Bergen Avenue Bus Owners. These included Mr. Cone, a Public Service Coordinated Transport traffic engineer, whose qualifications were conceded, Mr. Judge, a transportation consultant, various representatives and employees of the Greenville Bus Company and the Central Avenue and Bergen Avenue Bus Owners, and other individual witnesses. The hearings were conducted with ample opportunity for the examination and cross-examination of witnesses and the introduction of documentary evidence into the record. Cf. Abbotts Dairies, Inc. v. Armstrong, 14 N.J. 319, 332 (1954); Pennsylvania Railroad Co. v. Department of Public Utilities, 14 N.J. 411, 426 (1954). After their conclusion the board filed its written decision, determination and opinion which approved the application. In its decision it set forth the testimony in support of the application; it referred to the adverse testimony of Mr. Cone as being based largely "on assumptions and mathematical calculations on these" and expressed the view that it "was not as convincing as that of the public witnesses who appeared in person in support of the application"; and it rejected testimony by Mr. Judge based on dispatch sheets which had been prepared in advance and which contained numerous erasures and corrections which "were never satisfactorily explained." It expressly found and determined from the evidence that (1) public convenience and necessity required the additional service; (2) the objectors had failed to show that additional substantial competition would result from approval of the application; (3) the operation of six of the ten buses as authorized

by the municipal consent on the proposed route was "necessary and proper for public convenience and that said consent properly protected the public interest"; and it therefore granted approval of the municipal consent for the operation of six buses, subject to the restriction and condition outlined in the schedule annexed to the decision. Cf. Atlantic City Transp. Co. v. Director, Div. of Taxation, 12 N.J. 130, 139 (1953); In re Central Railroad Co. of N.J., 29 N.J. Super. 32, 39 (App. Div. 1953). Public Service Coordinated Transport, as the operator of bus lines along Ocean and Jackson Avenues, did not appeal from the board's determination; however, the appeal before us was taken and is pressed by the Central and Bergen Avenue Bus Owners who contend in effect: (1) that the existing service was adequate and no public need for additional service was shown; (2) that any substantial revenues obtainable by the applicant must come from them and the Public Service Coordinated Transport and there was no showing of ability by the applicant to operate without impairing the existing service; (3) that the applicant had not established its financial ability to operate successfully; (4) that any interference with the appellants' property rights in their routes would be in "violation of the due process clauses of the State and Federal Constitutions" and, (5) that the findings by the board were insufficient to sustain its action.

In passing upon the appellants' contentions we must ever bear in mind that ours is not the function of making original factual findings and policy determinations as to whether the operation of the new bus line is necessary and proper for the public convenience and will properly serve the public interest. That function has been appropriately vested by the Legislature in the Board of Public Utility Commissioners which applies its experienced administrative judgment to the subject at hand. Its determination carries with it the presumption of correctness (In re New Jersey Power & Light Co., 9 N.J. 498, 508 (1952)), and on judicial review the court will not substitute its independent judgment for that

of the board but will confine its inquiry to the ascertainment of whether the evidence before the board furnished a reasonable basis for its action. See Rahway Valley Railroad Co. v. Board of Public Utility Com'rs., 127 N.J.L. 164, 167 (Sup. Ct. 1941); New Jersey Power & Light Co. v. Borough of Butler, 4 N.J. Super. 270, 279 (App. Div. 1949). Cf. New Jersey Bell Tel. Co. v. Communications Workers, etc., supra, 5 N.J. at page 377; R.S. 48:2-46; R.R. 4:88-13.

Mr. Schulman testified that there was no shopping area at Exchange Place; that Grove Street and Newark Avenue had a shopping area which had deteriorated and was "no longer an important shopping center"; and that Journal Square had become the most "highly concentrated" shopping area in the city and was growing as such. He pointed out that parking facilities at the Square for private cars were grossly inadequate; that all important areas other than the Ocean Avenue section of Greenville had direct single-fare bus transportation to the Square; and that he and other members of his association had received numerous complaints from the Ocean Avenue section of Greenville which he described as "one of the oldest and most densely populated sections of the City." Numerous persons who reside or have their places of business in the Ocean Avenue section of Greenville testified as to the need for the new line proposed by the Greenville Bus Company. Many of them now use the existing lines along Ocean Avenue but they stressed the resulting inconvenience, including transfer at the Communipaw Avenue Junction and the payment of double fares. Many of them testified that the transfer at the Junction was hazardous and that if they wanted to avoid it they were obliged to walk to Garfield Avenue or to Jackson Avenue or beyond to Bergen Avenue. They ...


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