On appeal from the Superior Court, Appellate Division.
For affirmance -- Chief Justice Weintraub, and Justices Burling, Jacobs and Proctor. For reversal -- Justices Heher, Wachenfeld and Francis. The opinion of the court was delivered by Weintraub, C.J. Heher, J. (dissenting).
On July 25, 1956 the Board of Public Utility Commissioners ordered appellant railroad to reconstruct a bridge over its right-of-way in the Borough of Sayreville at the railroad's cost. The estimated cost is $110,000. The railroad conceived that under L. 1947, c. 178 (N.J.S.A. 48:12-67.1) it should pay but 15% of the cost and the Board the balance. It petitioned the Board to modify the order accordingly, and from a denial it appealed. The Appellate Division affirmed, 44 N.J. Super. 172 (1957), and we granted certification. 24 N.J. 222 (1957).
The Appellate Division held that with respect to public highways other than state highways the 1947 statute authorizes a division of cost only for the elimination of an existing crossing at grade and leaves unaffected the pre-existing responsibility of the railroad under R.S. 48:12-49 to bear the entire cost of the work where the crossing is not at grade.
The existing bridge erected by the railroad in 1901 carries a county highway over the railroad right-of-way. The bridge is narrow and is now a bottleneck. The improvement here involved is necessary to meet local transportation needs reflecting the growth of the community.
The issue before the Board was one of statutory interpretation. Before the Appellate Division, the railroad added a constitutional challenge. The Appellate Division understood the added issue to be whether the railroad's liability must be confined to the amount of the benefit which the improvement would confer upon the railroad. It held that the cost need not be allocated on the basis of benefits, and that where the improvement is required to meet local transportation needs and further safety and convenience made necessary by the growth of the community, the entire cost may be assessed upon the railroad. Atchison, Topeka & Santa Fe Railway Co. v. Public Utilities Commission, 346 U.S. 346, 74 S. Ct. 92, 98 L. Ed. 51 (1953).
Appellant does not quarrel with the stated conclusion of the Appellate Division, but rather says the constitutional issue it proffered was that since in some circumstances the State may not saddle the entire cost upon a railroad, Nashville, Chattanooga, & St. Louis Railway Co. v. Walters, 294 U.S. 405, 55 S. Ct. 486, 79 L. Ed. 949 (1935), our statute, R.S. 48:12-49, must fall because it would authorize unconstitutional action in such other situations. The rule appellant would invoke, that the validity of a statute will be judged by what may be done under it, has been applied sparingly, and largely to penal measures. 2 Sutherland, Statutory Construction (3 d ed. 1943), §§ 2413-19, pp. 190-98; 11 Am. Jur., Constitutional Law, § 164, p. 858. The Legislature cannot always anticipate the constitutional formula which may be judicially devised and perhaps revised with changing circumstances. There is no reason to insist upon perfect anticipation. If a statute is reasonably appropriate in its overall approach, it should be upheld notwithstanding it may be invalid in special circumstances, when it is apparent that the Legislature would want the act to prevail where constitutionally it may. Such surely is the case here. In Nashville it was observed with respect to the very area here involved that "A statute valid as to one set of facts may be invalid as to another" (294 U.S., at page 415, 55 S. Ct. at page 488). Since appellant does
not claim, and surely has not demonstrated, that the act is invalid in its application to the facts of this case, the constitutional challenge must fail.
We proceed to the question whether the Appellate Division correctly construed the 1947 statute to be inapplicable where the grade-crossing elimination had theretofore been accomplished. It is argued that it is absurd to distinguish between the cost of eliminating existing grade crossings and the cost of replacing a prior elimination. We do not believe this is so. We agree with the Appellate Division that the 1947 statute was intended to foster elimination of existing grade crossings; that the Legislature was willing that the state share in the cost of combatting existing hazards at grade, but did not intend it to assume any part of the railroads' burden as to eliminations already accomplished. A decision to confine the expenditure of state moneys to the removal of still existing grade crossings cannot be said to be capricious or arbitrary.
Surely that "classification" is not arbitrary in any constitutional sense; and if it were, the 1947 statute would fall leaving the railroads with their pre-existing liability. Such arbitrariness, if it were a fact, would not warrant a judicial extension of the statute beyond the legislative will. Whether the State ought to absorb 85% of the cost of remodeling or replacing structures heretofore erected to eliminate grade crossings is wholly a matter of policy which must be left to the other branches of government. We can properly concern ourselves only with the question whether the Legislature has so decided.
A review of the legislative history cogently supports the judgment of the Appellate Division. (Italics in quotations herein are added.)
It is not disputed that initially under the statutory scheme the railroads held the entire burden with respect to eliminations. R.S. 48:12-49. In 1913 the Fielder Act (c. 57) was adopted vesting the Board of Public Utility Commissioners with jurisdiction to order eliminations. Section 1 (in its later form it is R.S. 48:12-61) provided
that "Whenever a public highway and a railroad cross each other at the same level and it shall appear to the board that such crossing is dangerous to public safety, or that the public travel on such highway is impeded thereby," the Board may order the railroad company "to alter such crossing, or crossings, according to plans to be approved by said board, by substituting therefor a crossing, or crossings, not at the grade of such public highway either by carrying such public highway under or over such railroad, or railroads, or by reconstructing such railroad, or railroads, under or over such public highway, or by vacating, relocating or changing the lines, width, direction or location of such highway and the opening of a new highway in the place of the one ordered vacated." Section 2 (in its later form R.S. 48:12-62) provided "The entire expense of such alterations, changes, relocation or opening" shall be paid by the railroad, with certain provisos not here pertinent.
Two observations should be made with respect to the Fielder Act. (1) The act dealt solely with eliminations of existing crossings at grade. (2) The word "reconstructing," italicized in the quotation in the preceding paragraph, related solely to reconstruction of a railroad as part of a plan for the elimination of an existing crossing at grade. It did not refer to the reconstruction of a bridge by which a grade crossing had already been eliminated.
The first departure from the policy of imposing the total cost upon railroads occurred in 1929 when chapter 88 was adopted, whereby in section 1 the State Highway Commission was required "to formulate a program for the elimination of railroad crossings at grade on State highways, the improvement, relocation and reconstruction of crossings of railroads and State highways not at grade, and the location and construction of new crossings of railroads and State highways not at grade * * *." (R.S. 48:12-68). Section 3 provided "The cost of the work shall be borne by the State and the railroad company involved in equal shares." (See R.S. 48:12-70, 71). This statute applied only to crossings on State highways and hence is not applicable to
the present case. Its provisions, however, are noted because of their bearing upon the construction of the 1947 statute.
In 1930, the Fielder Act was amended by chapter 101. Section 1 of the Fielder Act was thereby amended to delete crossings on state highways (because of the 1929 statute noted immediately above). Section 2 was amended to provide that the cost "shall be paid fifty per centum by such railroad company * * * and fifty per centum by said board out of funds to be provided for that purpose."
There can be no doubt that the 50-50 program thus inaugurated in 1930 related solely to elimination of crossings at grade. The language of section 1 of the Fielder Act quoted hereinabove remained unaltered (except for the exclusion of state highways) and "reconstructing such railroad" remained merely one of the methods for eliminating an existing crossing at grade. Contemporaneous legislation to provide funds for sharing the cost of the eliminations under the 1929 and 1930 acts emphasizes that this is so. Section 8(a) of chapter 102 of the Laws of 1930 provided for the distribution of $2,000,000 per year from the receipts of motor fuel taxation "To the Board of Public Utility Commissioners * * * to be used by it to defray the public share of the cost of eliminating grade crossings " under the 1930 amendment of the Fielder Act. It was provided that such funds shall not be furnished the board "on account of the cost of eliminating such grade crossings in any year in which funds for such purpose shall be available in the 'Grade Crossing Elimination Fund' provided for by an act pending at this session." The pending act thus referred to was enacted as chapter 228. It authorized the issuance of bonds and to the extent here pertinent the reference is to "the cost of eliminating railroad grade crossings on highways other than State highways." (sec. 1).
In the Report to the Legislature of the Commission Created by Concurrent Resolution of April 17, 1929, which recommended the 1930 amendments of the Fielder Act and Fuel Tax Act, the entire emphasis is upon the need to eliminate existing grade crossings. At page 4 it was stated that "the
danger at highway grade crossings is constantly increasing as the use of the highways by motor vehicles increases," and at page 8 the report reads:
"* * * It is good policy to eliminate the dangerous grade crossings as fast as possible, and while it might be desirable to provide larger sums for that purpose, if they could be found, there are certain practical considerations which govern our conclusions; namely, under Chapter 88, the Highway Department is directed to prepare and carry out an annual program relative to crossings of State highways over railroads involving the expenditure of two million dollars on behalf of the State and a like amount on behalf of the railroads. The necessity of avoiding unnecessary interference with the flow of traffic on both the highways and railroads, and the practical limitations which govern the progress of construction work of that character, have influenced our conclusion that if another two million dollars is provided for the elimination of grade crossings on municipal and county highways and the requirement of a like amount to be expended by the railroad companies for that purpose, we will then have in effect grade crossing programs aggregating eight million dollars per year, half of which is to be provided by the State and the other half by the railroad companies. We believe that this amount is as large as either the State or the railroads can consistently provide. Such an annual program would certainly carry forward the progress of grade crossing elimination at a much greater rate than has ever occurred in the past."
The statement of purpose attached to the bill which introduced the 50-50 formula into the Fielder Act accordingly reads:
"The purpose of this act is to expedite the elimination of dangerous grade crossings by applying to crossings, other than State highways, the same division of expense between the public and railroad companies as was provided by Chapter 88, Laws of 1929 (p. 138), with respect to crossings on State highways."
The statement of purpose accompanying the bill which became the 1930 amendment of the Fuel Tax Act, referred to above, reads:
"The purpose of this act is to provide funds to pay for the public share of the cost of eliminating grade crossings on highways other than State highways under the Fielder Act (Chapter 57, Laws of 1913, p. 91) as amended by a companion bill introduced at this session of the Legislature."
In 1935, the Fuel Tax Act was repealed and a new measure enacted as chapter 319. There was continued therein in section 1302 the same provision distributing a portion of the proceeds to the Board "to be used by it to defray the public share of the cost of ...