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In re Application of Delaware

Decided: November 25, 1957.

IN THE MATTER OF THE APPLICATION OF THE DELAWARE, LACKAWANNA AND WESTERN RAILROAD COMPANY FOR AUTHORITY TO DISCONTINUE OR RESCHEDULE CERTAIN PASSENGER TRAINS ON THE BOONTON BRANCH (INCLUDING THE WASHINGTON LINE AND THE SUSSEX BRANCH)


On appeal from Decision and Interlocutory Order of the Board of Public Utility Commissioners of Department of Public Utilities.

For reversal and remandment -- Chief Justice Weintraub, and Justices Heher, Burling, Jacobs and Francis. For affirmance -- None. The opinion of the court was delivered by Weintraub, C.J.

Weintraub

Appellant railroad filed an application with the Board of Public Utility Commissioners requesting a reduction in passenger train service on its Boonton Line. During the proceedings, conferences were held between the railroad and Boonton Line Transportation Association, consisting of officials of Morris and Essex Counties and of a number of municipalities, which had opposed the application, and there resulted an agreement whereby the railroad sought lesser relief with the proviso that if the Board acted favorably the railroad would not apply for further curtailment for a period of four years. Representatives of municipalities not within the association also endorsed the arrangement.

On April 3, 1957 Senate Concurrent Resolution No. 20 was filed with the Secretary of State. The final hearing in this matter occurred on April 29, 1957, at which reference was made to the resolution. The provisions of the Concurrent Resolution appear in In re New York, Susquehanna

and Western Railroad Company, 25 N.J. 343 (1957), decided this day. On July 17, 1957 the Board filed its Decision and Order in which it concluded:

"Such a determination and permission by the Board to put into effect the reduced schedule would run counter to the purpose declared by the Legislature in the Concurrent Resolution. The intent of the Legislature that passenger rail services should temporarily be continued as it existed at the time of the adoption of the Concurrent Resolution, without abandonment or curtailment, is clear.

Therefore, the Board in conformity with the policy declared by the Legislature suspends all further proceedings on the application before it until the presentation of the final report of the Metropolitan Rapid Transit Commission to the Governors and Legislatures of New York and New Jersey and holds this proceeding open so that thereafter the parties to the proceeding may offer such further evidence as they may deem necessary."

The Appellate Division allowed an appeal from the interlocutory order and we certified the matter before consideration of it by that court.

As in In re New York, Susquehanna and Western Railroad Company, supra, the Board did not exercise its discretion but rather deemed itself bound by the Concurrent Resolution, and hence for the reasons set forth in that opinion the Decision and Order must be reversed and the matter remanded to the Board for further proceedings not inconsistent with the views therein expressed.

The railroad asks us to order the Board to approve the revised schedule, and this upon two propositions: (1) the Board is bound by the agreement between the railroad and the association and other municipalities; and (2) the basic facts pointing inexorably to a grant of the petition as amended, we should exercise original jurisdiction.

The first proposition is without substance. Wholly apart from the express provision in the agreement conditioning its effectiveness upon approval of the Board, the Board of course could not be bound by the mentioned agreement. The duty to determine public necessity and convenience rests upon the Board, and those who appear before it to oppose the application, even if accorded the status of parties to the proceeding ...


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