Gaulkin, Sullivan and Lewis. The opinion of the court was delivered by Gaulkin, S.j.a.d.
[82 NJSuper Page 372] The Board of Public Utility Commissioners (hereafter P.U.C.) ordered Super Service Bus Co. (hereafter Super) to "cease and desist" from continuing the
bus operation hereafter described because Super had not obtained municipal consents in accordance with N.J.S.A. 48:4-3, a prerequisite to P.U.C. approval under R.S. 48:2-14. Super appeals, claiming the operation is exempted from the operation of that section of the law.
N.J.S.A. 48:4-3 expressly provides that it shall not be applicable "to a charter bus operation or a special bus operation." N.J.S.A. 48:4-1 defines "charter bus operation" as follows:
"The term 'charter bus operation' as used in this chapter means and includes the operation of an autobus or autobusses by the person owning or leasing such bus or busses pursuant to a contract, agreement or arrangement to furnish an autobus or autobusses and a driver or drivers thereof to a person, group of persons or organization (corporate or otherwise) for a trip designated by such person, group of persons or organization for a fixed charge per trip, per autobus or per mile."
Super claims its operation is a "charter bus operation" within this definition.
There is no substantial dispute as to the facts. Super's brief states them as follows:
"One Donald Tierney on behalf of a group consisting of 86 persons calling themselves the Madison Park Commuters Association negotiated a contract with appellant whereby it chartered two autobusses per day to the Association to transport its members from Madison Township, N.J. and from East Brunswick, N.J. to the Jersey Central Ferry, Jersey City, N.J. One made two stops in Madison Township where members were picked up and the other bus picked up members at one location in Madison Township, a gas station in East Brunswick and the entrance to the New Jersey Turnpike also in East Brunswick. They returned via the same route. No schedules were published. The members were discharged at the Jersey Central Ferry. No passengers were picked up or discharged along the route. The busses left in the early morning and returned in the late afternoon. They made one round trip each.
"One bus carried 41 and the other 45 passengers at a fixed charge respectively of $46 and $51.75 per round trip. No individual fares were charged or collected and no tickets were sold. Appellant did not fix the price to be paid by any individual member. As representative of the group, Mr. Tierney collected the monthly dues in cash or checks on or about the first of each month and turned the total over to appellant. As a convenience to himself and to avoid unnecessary bookkeeping, Mr. Tierney requested the members paying by check to make them payable directly to appellant.
"The fixed charge per round trip was paid to appellant whether one or forty-five passengers traveled on any particular day. If a member was sick or went on vacation for as many as three weeks his seat was left vacant and the full fixed charge per bus per round trip was paid to appellant. There were no refunds. The only manner in which a new member was added to the roster of the Association was upon the permanent retirement of an existing member.
"At the time of the hearing the Association was not incorporated, had no officers and held no regular meetings. However, Mr. Tierney testified he met with the members every morning. If there were any complaints they were made to him and he, in turn, discussed them with appellant. Since the hearing the Association was incorporated. This, together with other facts, would have been introduced in evidence had the motion for further hearing been granted.
"In March 1961, Mr. Tierney inserted an advertisement in two local papers to the effect that a daily chartered bus was available for commuters to downtown New York. This advertisement was paid for by him and he was not reimbursed therefor by appellant or anyone else. The purpose of the advertisement was to obtain a waiting list to cover ...