I am in accord with the reasoning and result of the opinion of Mr. Justice Bodine for the Supreme Court.
I do not read section 48:12-99 of the Revision of 1937 as imposing upon railroads an absolute duty to operate trains for the transportation of persons and property. Viewed in the light of the context and the statutes in pari materia, it seems to me that, as stated by Mr. Justice Bodine, the obligation is measured by the public interest, necessity and convenience; and these considerations do not, in my opinion, lay upon the respondent railroad the duty of continuing passenger train service in the circumstances here presented. From the year 1933 to 1939 (when the instant application was presented to the Utility Commission) the railroad incurred annual deficits varying between $2,000,000 and $3,000,000, and aggregating $17,448,289. The consequence *Page 269 was that, at the close of the year 1939, the company's liabilities exceeded its assets by more than $17,000,000. Passenger traffic has dwindled almost to the vanishing point. The elimination of this service on the branches in question will result in an annual saving of $74,000. And the public need in this regard is well served by parallel bus lines. Indeed, the competition thus afforded has been a major factor in the drastic reduction of rail patronage.
The essential question is one of statutory construction.Section 48:2-13 of the Revision invests the Utility Commission with "general supervision and regulation of and jurisdiction and control over all public utilities," as therein defined, "and their property, property rights, equipment, facilities and franchises so far as may be necessary for the purpose of carrying out the provisions" of that title. The annexed proviso excludes from such supervision and regulation, jurisdiction and control, taxicabs, hotel buses, school buses, and autobuses with a carrying capacity of not more than six passengers operated under municipal consent upon a route established wholly within the limits of a single municipality, which route does not parallel upon the same street the line of a street railway, traction railway, or any other autobus route. Railroads are not within the excepted category. Thus they are comprehended in the general class made the subject of the substantive enacting clause, i.e.,all public utilities.
As pointed out by the Supreme Court, this provision was long since construed by this court as designed "to give full control of all public utilities" to the administrative agency thereby constituted, "so far as it could be done by legislation."Atlantic Coast Electric Railway Co. v. Public Utility Board,92 N.J.L. 168, 169. This all-inclusive interpretation was reiterated by this court in Perth Amboy v. Board of PublicUtility Commissioners, 98 Id. 106. Applying this principle to a case where a traction company's suburban lines were operated at a substantial annual loss, Mr. Justice Swayze said: "Whether the railway shall run some parts of its line at a loss, perhaps with a view to future development or future *Page 270 gain, perhaps with a view to greater public service, is a business question to be determined by the railway subject to the control of the public utility commission." Trenton v. Trentonand Mercer County Traction Corp., 92 Id. 61. And several years later, in 1922, in the case of Borough of Metuchen v. Board ofPublic Utility Commissioners and Public Service Railway Co., Mr. Justice Swayze, for the Supreme Court, sustained on certiorari (without opinion) an order of the Utility Commission granting to the railway company leave to abandon "its tracks and service" on one of the streets of the municipality.
Moreover, section 18 of the original Public Utility Act (Pamph. L. 1911, p. 380; R.S. 1937, 48:3-3) directs that no public utility "shall provide or maintain any service that is unsafe, improper or inadequate, or withhold or refuse any service which reasonably can be demanded or furnished when ordered" by the Utility Commission. And by a supplement to the Public Utility Act enacted on March 11th, 1924 (Pamph. L. 1924, p. 378;R.S. 1937, 48:2-24), it was provided that "if any public utility * * * shall discontinue service," and the Utility Commission "after hearing upon notice shall find and determine that service should be resumed," it "may order that service be resumed forthwith or on such date as" it may fix. Thus the utility is expressly authorized to "discontinue service" subject to the authority of the administrative agency to order its resumption if that course reasonably be in the public interest. And it is of no importance that the consent of this regulatory body is invoked by petition before the contemplated action is taken. That is a mere matter of procedure not at all concerned with the substance of the power. This course has been termed "a method more polite or more politic as we choose to call it."O'Brien v. Public Utility Board, 92 N.J.L. 44.
The failure of the legislature since to exercise its amendatory function is significant of its acquiescence in the interpretation thus given to these jurisdictional clauses. DiMeglio v. SlonkConstruction Co., 121 N.J.L. 366; affirmed, 122 Id. 379. It is the settled rule that whenever the meaning of *Page 271 a statute is ambiguous, "the contemporaneous and long continued exposition exhibited in the usage and practice under it requires the construction thus put upon it to be accepted by the courts as the true one." Commonwealth Roofing Co. v. Riccio,81 N.J. Eq. 486. The Utility Commission has time and again over the years exercised, apparently without question, the authority here challenged; and, with knowledge of this judicial and administrative construction, these provisions were re-enacted without substantial alteration in the revision of our general public laws adopted in 1937. Such judicial and administrative construction must be deemed to have received legislative approval by the re-enactment of the statutory provisions without material change. Central Railroad Co. v. Thayer Martin, 114 N.J.L. 69,79; United States v. Dakota-Montana Oil Co.,288 U.S. 459; 53 S.Ct. 435; 77 L.Ed. 893; Massachusetts Mutual LifeInsurance Co. v. United States, 288 U.S. 269;53 S.Ct. 337; 77 L.Ed. 739; New York, New Haven and Hartford RailroadCo. v. Interstate Commerce Commission, 200 U.S. 361, 401;26 S.Ct. 272; 50 L.Ed. 515.
It is fairly to be presumed that the legislature purposed to commit to its administrative agency a broad discretion in the superintendence of utilities, guided by the standard of public necessity and convenience, and thus to safeguard them against an arbitrary and unreasonable exercise of the regulatory power. It was no doubt considered that the compulsory performance, at great loss to the utility, of that which does not substantially serve public necessity or convenience, merely because the duty was undertaken in consideration of the grant of the franchise, would be violative of sound principles of economy and inimical to the public interest, and a disregard also, depending upon the circumstances, of the constitutional guarantees of the right of property; and that relief from the obligation of wasteful service in the individual case should be the province of the body created to administer the legislative policy. Vide Colorada v. UnitedStates, 271 U.S. 153; 46 S.Ct. 452; 70 L.Ed. 878;Brooks-Scanlon Co. v. Railroad Commission, 251 U.S. 396;40 S.Ct. 183; 64 L.Ed. 323; Mississippi Railroad Com. *Page 272 v. Mobile and O. Railroad Co., 244 U.S. 388; 37 S.Ct. 602;61 L.Ed. 1216. The public has an interest in the use of the railroad; and it is axiomatic that that interest is prejudicially affected if such compulsory service would in the particular circumstances reduce the company's financial resources and necessitate an increase of rates to enable it to function in itsquasi-public capacity with a fair degree of efficiency. Certainly, jurisdiction to order resumption of a discontinued service if reasonably grounded in public necessity and convenience connotes authority to sanction the discontinuance of a service when the need, so measured, no longer exists.
The prevailing view is that the power of general supervision and regulation of service necessarily includes authority to permit public utilities "to abandon service." RailwayCommission v. Macon Railway and Light Co., 151 Ga. 256; 106S.E. Rep. 282. The Utility Commission is not confined to the powers expressly granted; it possesses also those arising from necessity or fair implication.
The order of the Utility Commission granted the application to "abandon service" on the branches in question; and appellant distinguishes between "abandonment" and "discontinuance." The order is read as permitting an abandonment irrevocable by the Commission. So that there may be no doubt as to the legal effect of the order, I would modify it to permit a discontinuance of the service subject to the continuing authority of the Commission to direct its resumption when essential to the service of public necessity and convenience.
My conclusion, therefore, is that the order under review, as so modified, should be affirmed.
Mr. Justice Colie and Judge Wells join in this opinion.
For reversal — THE CHANCELLOR, CHIEF JUSTICE, PARKER, CASE, DONGES, DEAR, RAFFERTY, HAGUE, THOMPSON, JJ. 9.
For modification and affirmance — HEHER, COLIE, WELLS, JJ. 3. *Page 273