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In re Asbury-Red Bank Limousine Service

Decided: April 20, 1970.

IN THE MATTER OF THE PETITION OF ASBURY-RED BANK LIMOUSINE SERVICE FOR APPROVAL OF MUNICIPAL CONSENTS FOR THE OPERATION OF A NEW LIMOUSINE ROUTE BETWEEN NEWARK AIRPORT AND POINTS IN MONMOUTH COUNTY AND MIDDLESEX COUNTY. ASBURY-RED BANK LIMOUSINE SERVICE, PETITIONER-RESPONDENT, AND PUBLIC SERVICE COORDINATED TRANSPORT, RESPONDENT-APPELLANT, AND CITY OF NEWARK, RESPONDENT-RESPONDENT, AND THE PORT OF NEW YORK AUTHORITY, INTERVENOR-RESPONDENT


For affirmance -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For reversal -- None. The opinion of the court was delivered by Jacobs, J.

Jacobs

[55 NJ Page 552] In March 1968 the petitioner Asbury-Red Bank Limousine Service filed a petition before the Department of Public Utilities seeking permission to operate its limousine service between the Port of New York Authority's Newark Air Terminal and various points in Middlesex and Monmouth Counties. Though the petitioner had applied as early as 1966 to the City of Newark for its consent (N.J.S.A. 48:4-3; 48:4-10), the City inexplicably never acted on the application; however most of the municipalities along the petitioner's route, including all of the municipalities in Middlesex and Monmouth Counties where any stops would be made, had given their consents. No stops for either pickups or discharges would be made in Newark (except within the

Port Authority's Terminal) or in any other municipality outside of Middlesex and Monmouth Counties.

After preliminary procedures which do not concern us, and after due hearing, the Board of Public Utility Commissioners rendered its decision dated May 1, 1969. It explicitly found that "the operation of limousines as requested in the petition to and from Newark Airport from points in Monmouth and Middlesex Counties is necessary and proper for the public convenience and properly conserves the public interest. * * *" N.J.S.A. 48:2-14; 48:4-1 et seq.; In re Greenville Bus Co., 17 N.J. 131, 135 (1954); In re Public Serv. Coord. Transp. v. Super Serv. Bus Co., 82 N.J. Super. 371, 376 (App. Div.), certif. denied, 42 N.J. 143 (1964). This finding is amply supported by the record and no one before us attacks it. The Board also approved the municipal consents which the petitioner had obtained (N.J.S.A. 48:4-3) and granted permission to the petitioner to run through any municipalities along the route which had failed to grant consents. N.J.S.A. 48:4-10. Insofar as Newark was concerned, the Board held that "the municipal consent of the City of Newark was not required for limousine operations to and from Newark Airport so long as no stops were made in Newark proper."

The Public Service Coordinated Transport, which had appeared before the Board in opposition to the petition, filed a notice of appeal to the Appellate Division. The City of Newark, which had also appeared before the Board in opposition, took no appeal (cf. In re Old Colony Coal Co., 49 N.J. Super. 117, 129 (App. Div. 1958); Rundale v. Hill, 90 N.J. Eq. 262, 264 (E. & A. 1918)) but filed a brief supporting Public Service's sole contention that the petitioner could not, without Newark's consent, operate through Newark from the Port Authority's Terminal to points in Middlesex and Monmouth Counties. We certified the appeal of Public Service before argument in the Appellate Division and, though technical questions have been raised as to the standing of Public Service and Newark to prosecute

the appeal, we shall pass them by. See Elizabeth Federal Savings & Loan Assn. v. Howell, 24 N.J. 488, 499-504 (1957); In re Petition of Public Service Coordinated Transport, 103 N.J. Super. 505, 509 (App. Div. 1968).

In L. 1916, c. 136 the Legislature directed that auto buses for hire shall not be operated without consents from the cities whose streets they traverse. In L. 1926, c. 144 the Legislature amended its earlier enactment to set up what the court, in Whitehead v. Public Utility Commrs., 107 N.J.L. 41, 43 (Sup. Ct. 1930), aff'd, 108 N.J.L. 258 (E. & A. 1931), described as "a comprehensive scheme whereby the transportation of passengers by autobusses should be brought under state control * * *." See also In re Public Serv. Coord. Transp. v. Super Serv. Bus Co., supra, 82 N.J. Super. at 376; Doskovitch v. Bd. of Pub. Utility Commrs., 103 N.J.L. 570 (Sup. Ct. 1927); L. 1946, c. 131; N.J.S.A. 48:4-3. The amendatory legislation contemplated that auto bus owners would obtain not only municipal consents but also approval from the Board of Public Utility Commissioners (Whitehead, supra, 107 N.J.L. at 43; see L. 1921, c. 149; L. 1926, c. 146; N.J.S.A. 48:2-14; 48:4-1 et seq.); however, it expressly stipulated that whenever the auto bus route extends through more than two municipalities and one or more have given consent with Board approval but other municipalities along the route have refused consent, the Board may permit the auto bus to run through such refusing municipalities, provided "that no passengers be either taken on or discharged from said auto bus anywhere within the boundaries of the municipality or municipalities so refusing or failing to grant such consent * * *." L. 1926, c. 144 at 222; N.J.S.A. 48:4-10.

The legislative considerations and objectives underlying this so-called closed door proviso were quite evident. Buses simply passing through a community present factors which differ little from those pertaining to through traffic generally. Here the Legislature considered that the public interest

in having convenient and really accessible bus routes outweighed the interests of the municipalities through which the buses passed and that the sole approval of the Utility Commissioners would suffice to protect the public. However, where the buses stop to pick up or discharge local passengers, there are very special local safety and traffic factors of high concern to the officials affirmatively charged with the local responsibilities in these areas. Here, but only here, did the Legislature consider that the public interest required dual approval by the municipalities and the Utility Commissioners. N.J.S.A. 48:4-10; cf. Whitehead v. Public Utility Commrs., supra, 107 N.J.L. at 43-44.

In the light of the foregoing, the controlling issue before us is whether the Legislature contemplated, particularly in its later Air Terminal Statute which underlies the Port of New York Authority's operation of the Newark Air Terminal (L. 1947, c. 43; N.J.S.A. 32:1-35.1 et seq.; Newark v. Essex County Board of Taxation, 54 N.J. 171, 177-80 (1969)), that in addition to the approval from the Utility Commissioners which is not here in question (cf. N.J.S.A. 32:1-9; 48:4-1 et seq.), approval would also be required from Newark even though the buses would operate strictly from within the Air Terminal itself and would merely pass through Newark without any pickups or discharges. In seeking to carry out the legislative contemplation, primary reliance is properly placed not on "literalisms, technisms or the so-called formal rules of interpretation" but rather on "the breadth of the objectives of the legislation and the commonsense of the situation." Jersey City Chapt. Prop. Owners Protective Assoc. v. City Council of Jersey City, 55 N.J. 86, 100 (1969).

The terms of the Air Terminal Statute (L. 1947, c. 43) and the 1947 agreement between Newark and the Port Authority with respect to the operation of the Air Terminal, point strongly towards the denial of any municipal veto ...


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