Price, Gaulkin and Sullivan. The opinion of the court was delivered by Sullivan, J.A.D.
Strang Bus Lines, Inc. (Strang) was the holder of municipal consents for the operation of five autobuses in the City of Summit, Borough of New Providence, Townships of Berkeley Heights, Passaic and Bernards, Borough of Watchung, and the City of Plainfield. Two services were provided; one beginning at Plainfield, operating between North Plainfield, Warren Township, Borough of Watchung, and the Townships of Passaic and Bernards; and the other service operating from the City of Summit, through the Borough of New Providence and Townships of Berkeley Heights, Passaic and Bernards, to the United States Veterans Hospital. The consents had been issued many years ago to Marion C. Strang and were approved by the Board of Public Utility Commissioners of New Jersey (Board). In 1948, with Board approval, these consents were transferred to the Strang Bus Lines, Inc. Over the years various changes had been made in Strang's operating schedule, but basically, from 1930 until May 1958 services provided were between Plainfield and the United States Veterans Hospital in Bernards Township and Summit and the Veterans Hospital. This appeal is concerned only with the latter service.
At one time the run between Summit and the Veterans Hospital had a full operating schedule. However, as the number of passengers carried decreased, the service was curtailed. About July 1957 all service was discontinued with the exception of Wednesdays and Sundays which were visiting days at the Hospital. Late in 1957 the Wednesday operation was dropped and the only service provided was one round-trip on Sunday.
About May 1958 Hamilton Strang, president of Strang Bus Lines, Inc., notified the Board that he was contemplating ceasing all service on this run because of lack of passengers. Strang also got in touch with one Michael DeCorso, who was operating a bus route through Summit, New Providence and a portion of Berkeley Heights, and asked him to take over the Sunday run between Summit and the Veterans Hospital. DeCorso's regular run traversed about one-half of the Summit-Veterans Hospital route. Strang and DeCorso then met with the manager of the hospital who asked DeCorso to continue the service and authorized him to enter the hospital grounds for the purpose of loading and unloading passengers. Strang and DeCorso also appeared at the office of the Board where DeCorso was given a "temporary permit" to operate the Summit-Veterans Hospital route pending his obtaining municipal consents for the route through the Townships of Bernards and Passaic, and a portion of Berkeley Heights. (He already had consents to operate through Summit, New Providence and a portion of Berkeley Heights.) This "temporary permit" to operate given DeCorso is involved in the present dispute because Strang contends that from May 1958 on, DeCorso was maintaining the service between Summit and the hospital on Strang's municipal consents, or else he was operating illegally because he had no municipal consents for Bernards, Passaic and a part of Berkeley Heights. According to Strang, the Board had no power to give a temporary permit to operate to DeCorso unless he first had the underlying municipal consents.
Since May 1958 DeCorso has provided Sunday round-trip service on this route as an extension of his regular Sunday service through Summit, New Providence and a portion of Berkeley Heights, and has increased the number of passengers carried from approximately 6 to 29. In May 1959 DeCorso applied for municipal consents to operate the route through Bernards, Passaic, and the other portion of Berkeley Heights. On March 8, 1960, the date of the Board's decision from
which the instant appeal has been taken, DeCorso had not yet received all of these consents. However, during the pendency of this appeal such consents have been obtained and their approval has been recommended to the Board by its hearing examiner.
In August 1959 the Board initiated proceedings to withdraw its approval of the municipal consents held by Strang on the ground, inter alia , that Strang had "failed to operate autobus service between the City of Summit and Township of Bernards over the approved route since August, 1958." A hearing was had in this matter on September 14, 1959, and decision held pending a hearing on an application to the Board made September 8, 1959 by Strang as transferor and Robert Merrill as transferee for approval of the transfer of municipal consents held by Strang. Included therein were the consents to operate between Summit and the United States Veterans Hospital. This matter was heard on October 30, 1959.
At the hearing on the transfer application, Hamilton Strang testified that Strang had stopped furnishing service between Summit and the United States Veterans Hospital about May 17, 1958, and that DeCorso took over at that time. He also testified that in March 1959 Strang and Merrill had entered into a contract for the sale and purchase of Strang's municipal consents and equipment, and that since then and pending Board approval of the transfer of consents, Merrill has been operating buses on Strang's consents. (Merrill has no municipal consents of his own). Merrill who also testified, generally corroborated the foregoing, except that he set May 1959 as the date when he began to provide Sunday round-trip service between Summit and the United States Veterans Hospital.
The hearing examiner found that DeCorso had begun operating between Summit and the Veterans Hospital on May 18, 1958, after Strang had advised the Board that it could no longer supply this service and after the super-intendent of the Veterans Hospital had notified the Board
that it was desired that the service be continued. "Because of the need for this service," the Board permitted the operation pending DeCorso's ...