105 N.J. Eq. 438 | N.J. Ct. of Ch. | 1929
This matter is now before the court on complainants' application for an order to require the defendant Public Service Co-ordinated Transport to show cause why a temporary injunction should not issue to restrain it from putting into effect on January 1st, 1930, an increased rate of fare for *440 transportation of passengers on its street railways and buses, as per schedule filed November 21st, 1929, with the board of public utility commissioners, and to require said board to show cause why a temporary injunction should not issue to restrain it from permitting such increase of fare to take effect until a public hearing be afforded the complainants and other parties in interest. The above-named solicitors for the township of North Bergen, city of Jersey City and city of Bayonne, requested and were granted leave to join as complainants herein. The matters were argued and considered together. For brevity and convenience Public Service Co-ordinated Transport will be hereinafter mentioned as the utility, and the Board of Public Utility Commissioners as the board. The complainants aver that the utility, a public utility corporation, operating street railways and buses on the public streets of the several municipalities above named, filed with the board on November 21st, 1929, a schedule of increased rates of fare for transportation of passengers, to be charged by said utility on and after January 1st, 1930. Said schedule evidences that the utility contemplated a ten-cent cash fare, giving to its patrons the option to purchase twenty tokens for one dollar, each token to be good where a five-cent fare is now charged. The utility filed with its aforesaid schedule a letter and a petition setting forth reasons urged to justify its action, and therein requested that the proposed increase be allowed to go into effect on January 1st, 1930, without suspension. Section 17, subdivision (h) of an act concerning public utilities (chapter 195, laws of 1911, as amended and supplemented), provides that when any public utility as in said act defined shall increase any existing rate, the board shall have power either upon written complaint or upon its own initiative to hear and determine whether the said increase is just and reasonable. The burden of proof to show that the increase is just and reasonable is imposed upon the utility. The board is empowered pending such hearing and determination to order the suspension of said increase until it shall approve same, such suspension to be in the first instance for a period of not exceeding three *441 months, and if the hearing be not concluded within such time, a further suspension for not exceeding three months is allowable. The board, upon being satisfied that the proposed increase of rate is just and reasonable is obliged to approve same. The board did not follow the prescribed procedure in the matters subjudice. On December 4th, 1929, the president of the board addressed a letter to the president of the utility in which, among other things, he said: "The problem that confronts the board is this: There seems to be no reasonable basis upon which a fair estimate could be made as to the number of riders affected by your proposal and its consequent result on the revenues of the company. How extensively the occasional rider would make use of your facilities by paying a cash fare as against the purchase of tokens seems to be too problematical to estimate. All riders on buses or trolley, under your proposal, may continue to pay the same rate of fare by the purchase of tokens. * * * The board is not willing to accept the change in fare as proposed. It will approve of a charge of a ten-cent cash fare, giving all riders the option to purchase tokens at the rate of ten for fifty cents, the change in fare to become effective January 1st, 1930, as proposed by you and to be effective only as an experiment for such time as the results can be reasonably estimated. * * * Pending the foregoing experiment, there will be reserved to all municipalities and other interested parties the right to be heard as soon as reasonably definite results are ascertained." The complainants aver that the utility filed with the board an acceptance of the terms mentioned in the foregoing letter, and, notwithstanding protests to the board by complainants and others charging non-compliance with the law, unreasonableness of the proposed increase, failure to afford a public hearing, and failure by its order to approve such increase, said board has acquiesced in the utility putting the increase in rate in effect on January 1st, 1930.
Novel indeed, to say the least, is the means whereby the proposed increase in rate of fare is allowed by the board to become effective. Whether such means be legally justified *442 must be determined by the supreme court. This court is unauthorized to make such determination. There is no authority expressed in the Utility act conferring upon the board the right to allow the utility to put into effect an experimental rate as contemplated. Defendants' counsel assert, however, that the board has authority therefor. It appears that Mr. Justice Kalisch, on December 21st, 1929, after argument upon a rule to show cause why a writ of certiorari should not be allowed for a review of the matters in controversy, referred the matter to the supreme courtin banc. It is said that said court will not regularly convene until February 21st, 1930, and that counsel for the complainants sought the three justices who comprise part 2 of the present term of said court, wherein certiorari proceedings are heard and determined, and ascertained that two of said justices were not now available and would not be available before January 1st, 1930. Such difficulty will not avail complainants in this court.
Section 38 of the Utility act expressly provides for a review by the supreme court of any order of the board and confers upon said court jursidiction to set aside, on review, any order made by said board when it clearly appears there was no evidence before the board to support reasonably the same, or that the same was without the jurisdiction of the board. And if it appears to said court equitable and just that a rehearing should be had before the board it may order that such rehearing be had upon such terms as are reasonable. Manifestly, therefore, it is for the supreme court to determine whether the order (or action) of the board of which the complainants claim they are aggrieved was based upon statutory authority. If the supreme court determines that the act complained of was not based upon statutory authority, or that inaction of the board contravened such authority, said court may be relied upon to properly adjudicate thereon. Said court may likewise be relied upon to determine whether the above-mentioned letter addressed by the president of the board to the president of the utility may be regarded as tantamount to an order of said board within the purview of *443
the Utility act, supra, and if not so regarded whether it be of any legal significance whatever. Counsel for the complainants in their quest for injunctive relief apparently rely upon the rule of law as established in states where special statutory agencies have not been created by the legislature for the fixing and regulation of rates for public utilities. It is a well-established rule of law in states where rates for public utilities are fixed and regulated by the legislature, or by special statutory agencies created by the legislature therefor, that the courts have no jurisdiction over rates as such, and unless some constitutional right or legal infirmity in proceedings by which a rate is fixed, is involved, the courts have no jurisdiction or power to interfere with a rate which is, in fact, sanctioned by the legislature, or by a body created by the legislature — empowered to sanction same. That the fixing and regulation of rates for public utilities is clearly a legislative function has been well established in law. The court of chancery, under existing laws, has no jurisdiction whatever with respect thereto. Judicial power, such as may be exercised, can be exercised only by the supreme court. That this court has power to relieve against all wrongs for which the law gives no adequate remedy is beyond question. Allen v. Distilling Co.,
I will advise an order denying the order to show cause sought by the complainants herein. *447