For affirmance -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For reversal -- None.
The State Highway Commissioner, after conducting hearings, decided that the Pennsylvania-Reading Seashore Lines should be permitted to discontinue its trains numbered 609 and 610 between Camden and Clementon and its trains numbered 754 and 775 between Camden and Millville. An appeal to the Appellate Division was taken from this decision by Alfred Sprissler and three unions, namely, the Brotherhood of Railroad Trainmen, the Brotherhood of Locomotive Firemen and Enginemen and the Brotherhood of Locomotive Engineers. See R.R. 4:88-8. We certified before argument in the Appellate Division. See R.R. 1:10-1(a).
In 1959 the Legislature created a Division of Railroad Transportation in the State Highway Department and directed that it engage in a continuous study of commuter and passenger railroad operations throughout the State with the end in view of seeking solutions to our mounting transportation problems. L. 1959, c. 14; N.J.S.A. 27:24-1 et seq. The Division submitted a report in April 1960 and this was followed by the enactment of Chapter 66 of the Laws of 1960. N.J.S.A. 48:12A-1 et seq. That statute empowered the
Highway Commissioner to enter into contracts with railroad carriers for the operation of approved passenger service and provided for payments by the State to the carriers at the rates set forth in the contracts, subject to the terms of the legislation. Under section 10 every carrier entering into a contract was obliged to continue all passenger service during the term of the contract but the Commissioner was empowered, after 6 months, to re-evaluate the non-approved service and determine what part of that service "can and should reasonably be required of the railroad during the remaining term of the contract." The same section directed that "[a]ny action taken pursuant to such a determination shall be for the duration of the contract only unless by future contracts or determinations, the rights and obligations are extended."
In 1962, Chapter 66 was supplemented to authorize the Commissioner to undertake improvements to capital facilities in order to protect the State's investment in highway construction, to coordinate with interstate transportation improvements, and to achieve greater efficiency in rail passenger operations. L. 1962, c. 191; N.J.S.A. 48:12A-17 et seq. Section 3 of this act authorized the Commissioner to require, as a condition of the State's entering into a contract relating to improvements to capital facilities, that the carrier also execute a contract to provide approved passenger service under Chapter 66 "for such period of time as the commissioner shall determine shall be in the public interest."
In 1964 the Legislature enacted Chapter 58 which was apparently designed to clarify the extent of the powers vested in the Commissioner by the earlier legislation; it expressly provided that the Highway Commissioner, upon entering into a contract for passenger service pursuant to Chapter 66, could, without approval of the Board of Public Utility Commissioners, "authorize a discontinuance, curtailment, abandonment or change in passenger service, which discontinuance, curtailment, abandonment or change in service shall exist only during the term of said contract." L. 1964, c. 58; N.J.S.A. 48:2-24. Chapter 58 also ratified any earlier discontinuances,
curtailments, abandonments or changes authorized by the Highway Commissioner without approval of the Board of Public Utility Commissioners. N.J.S.A. 48:2-24.1.
Shortly after Chapter 58 was enacted, the Legislature passed Chapter 88 which sets forth the current powers of the State Highway Commissioner with respect to contracts with carriers for continued operation of passenger service. L. 1964, c. 88; N.J.S.A. 48:12A-16.1 et seq. Section 9 of this act provides that the contracting carrier may petition for changes in passenger service and where the petition involves "a decrease in the number of trains" the Commissioner shall hold a hearing on notice. Section 16 repeals Chapter 66 but provides that the repealer shall not in any way affect any contracts, determinations or orders by the Commissioner pursuant to the authority theretofore granted but such contracts, determinations and orders "shall continue with full force and effect until otherwise amended, repealed or terminated in accordance with the terms thereof or pursuant to the provisions of this act."
The Pennsylvania-Reading Seashore Lines, which had entered into a contract with the Highway Commissioner for the fiscal year July 1, 1963 to June 30, 1964, duly applied for permission to discontinue its trains numbered 609 and 610 operating between Clementon and Camden and trains numbered 754 and 775 operating between Millville and Camden. Hearings on its application were held during February 1964. (These hearings also dealt with an application to discontinue trains numbered 1011, 1026 and 1038 operating between Atlantic City and Philadelphia; that application was ultimately denied by the Commissioner, no appeal was taken from the denial and it is not now before us.) The evidence presented during the hearings sufficiently established that the Clementon-Camden and Millville-Camden runs were being operated by the carrier at substantial loss, that the very limited number of passengers who used the runs had dropped since 1961, and that reasonable alternate means of transportation via buses were available to them.
In granting the application, the Commissioner pointed out that the cheaper rides, the direct routes to Philadelphia, and the multiplicity of schedules had made bus service the general choice of the public transportation travelers in the area; that those who still continued to use the railroad did so because of individual preference rather than necessity; and that "in providing service on the Clementon line and on these two trains on the Millville line, the railroad is in effect subsidizing a particular travel pattern for a small segment of commuters without any real hope of their obtaining sufficient revenue to meet expenses." The Commissioner expressed the opinion that the railroad's need for relief was clear and that his ruling "makes a practical application of the 'balanced' transportation principle by giving the responsibility for the carriage of passengers to the carrier which has proven itself to be most efficient and which is already the travel choice of the overwhelming preponderance of commuters in this area." Although the appellants attack several evidential rulings made during the hearings, it is clear to us that those rulings were not at all prejudicial; and we are satisfied ...