in its creation. Such is not the situation here. There is no specific federal action, by legislation or otherwise, granting to the Burlington County Bridge Commission the right to charge tolls which would provide for a profit on its cost in acquiring the two bridges. Furthermore, in none of those cases was there a prior adjudication by a state court holding that the instrumentality concerned was without power to exercise the authority granted by federal action.
The case of Covington & Cincinnati Bridge Co. v. Kentucky, 1894, 154 U.S. 204, 14 S. Ct. 1087, 38 L. Ed. 962, involved a bridge company incorporated under the laws of Kentucky which provided that the corporation In order to become effective, required approval by the State of Ohio, since its purpose was to construct and operate a bridge connecting the two states. The necessary approval of both states was obtained and the bridge was erected. Subsequently the State of Kentucky enacted a provision attempting to limit the rate of toll to be charged on the bridge, and for failing to comply with that enactment the bridge company was prosecuted. In reversing the resulting conviction the United States Supreme Court based its holding on the fact that the bridge was built with the consent of both states, and that any action by one of them with respect to the toll-fixing would nullify the corresponding right of the other. It held therefore that since the bridge accommodated the flow of interstate commerce, Congress alone possessed the power to resolve such differences and to enact a uniform scale of charges which would be operative in both directions. Such a case must be limited to its particular facts and is also distinguishable from the instant case.
In the case at bar the decision of the New Jersey Supreme Court goes no further than to hold that the plaintiff, having been created under specific legislation of New Jersey, has no power other than those explicitly granted in that legislation. The United States Supreme Court has denied certiorari and has denied a petition for a rehearing. No case has been cited by the plaintiff as authority for its assertion that the adjudication is not binding upon this court under principles of res adjudicata.
The plaintiff, however, claims that the decision of the New Jersey Supreme Court, with regard to restricting the rates of toll, was beyond the jurisdictional power of that forum due to the fact that it related to interstate commerce.
The case of Grubb v. Public Utilities Commission, 1930, 281 U.S. 470, 50 S. Ct. 374, 74 L. Ed. 972, stands for the proposition that state and federal courts have concurrent jurisdiction of suits of a civil nature arising under the Constitution and laws of the United States, save in exceptional cases where the jurisdiction has been restricted by Congress to the federal courts. The United States Supreme Court, in denying certiorari, has seen fit not to review the action of the Supreme Court of New Jersey in this instance, and while such denial is not to be taken as an adjudication on the merits, I fail to see how this court can act as an appellate tribunal to determine the propriety of the judgment of the New Jersey Supreme Court.
In any event, if it be assumed that this court is not limited by principles of res adjudicata and full faith and credit, the plaintiff, in order to prevail, must establish that the federal statutes authorize it to charge tolls which include a profit factor.
The intent of Congress in promulgating the enabling statutes, and in particular section 5 of each as above set forth, must be analyzed through a logical interpretation of the words used. It is established in each instance that the toll rate shall provide an amount sufficient to pay the cost of maintenance, repair, and operation, to pay an adequate return on the cost and to provide a sinking fund to amortize the cost of the purchase of the bridge. A specific limitation follows immediately whereby the amortization must be completed within 30 years and the tolls charged after accumulating the amortization fund must be limited to an amount necessary for care, repair, maintenance, and operation. It is clear that the legislative intent was to limit tolls to the satisfaction of expenses of acquisition and ownership of the bridges in the hands of the governmental bodies, and to protect the public by such restriction. This interpretation becomes obvious upon the realization that the tolls after amortization are limited to the costs of repair, operation and maintenance. No provision is made for 'an adequate return on the cost'. If Congress intended that a profit could be made by the acquiring governmental body, it would not have limited the time interval during which the profit was to be accrued to the period during which the property was to be amortized. If such a statutory construction was to be accepted, it would result in a situation whereby the acquiring body could utilize the entire 30 years to complete the amortization, even though this might be done in a shorter time, in order to preserve its profit-making power. This could not have been the Congressional contemplation, for it is not in the public interest.
A far more likely interpretation of the words 'adequate return on the cost' is that they relate to the satisfaction of the cost of acquisition by governmental bodies. Such acquisition would, in the normal course, be accomplished by some funded indebtedness, which would carry with it an obligation of interest. Congress, therefore provided that the tolls charged on the bridges could provide for amounts sufficient to pay interest as well as the principal amount of the obligation accrued in the acquisition. Therefore, once the amortization is complete, no part of the toll would be required to provide for the 'return', or interest.
Even if the plaintiff is correct in its interpretation of 'adequate return' those words must be considered in the light of the phrase 'as far as possible', which modifies the entire provision for the establishment of the fund. The use of these words indicate a legislative intent to make this provision directory, rather than mandatory. Congress certainly did not decree that it was imperative that tolls include an element of profit. Indeed, this whole section merely amounts to a consent on the part of Congress that a state or its subdivision may acquire the bridges and operate them and charge tolls. The New Jersey Legislature in promulgating N.J.S.A. 27:19-32 has not seen fit to take advantage of all of the authority offered by Congress. It has granted county bridge commissions the power to do everything authorized by Congress except receive profits through the charging of tolls, assuming that Congress has granted that power in section 5. Therefore it is not 'possible' for the plaintiff to fix tolls so as to make profits.
To summarize, this court knows of no authority whereby it has the power to ignore the ruling of the New Jersey Supreme Court. Furthermore, if on any account an interpretation of the federal statutes is required, the meaning is clear that the plaintiff herein has no right or authority to assess tolls which include a factor of profit.
For the reasons stated herein an order should be submitted by the defendants granting their motion for judgment in their favor on the pleadings and denying the motions of plaintiff for like judgment. If agreement cannot be had by the parties as to the form of the order, reserving objections as to the substance, it should be settled on my next motion day.