(dissenting in part). I would not exclude firemen from the coverage of paragraph III of the board’s order, directing that enginemen and firemen in road service, after an absence of three months or more, be examined as to whether “they are qualified on the physical characteristics of the road over which they will operate.”
This is a legislative inquiry peculiarly within the specialized and experienced judgment of the administrative authority; and where the agency keeps within its essential function, and there is not the arbitrary or unreasonable action that constitutes an excess of jurisdiction, there is no judicial revisory power. It is of the essence of the doctrine of separation of powers that the judiciary may not substitute its judgment on policy for that of the administrative agency. In re Plainfield-Union Water Company, 14 N. J. 296 (1954).
It is not decisive on this question that the fireman “is always under the engineman’s supervision and does not operate the train except to bring it to an immediate halt if, because of an emergency, the engineman is unable to continue,” and the fireman’s responsibility is thus severely limited and his first run over territory which he has not travelled for any period of time is necessarily under another’s guidance.” I am aware of no reason related to the substance of the policy for this differentiation. The fireman has his own independent duties of giving crossing warning signals, observing and receiving signals, looking out for danger, and so on, and his duties and the engineman’s in this regard are largely the same.
And I would not remand the cause for a hearing on notice as to the subject matter of paragraphs VI, VII and VIII, embodying the safety measures voluntarily agreed to by the railroad in advance of the board’s order to show cause.
*439The railroad concedes on its brief that prior to the issuance of the order to show cause, the board “called an informal conference with the representatives of all the railroads operating in New Jersey and held discussions as to the adequacy of existing safety rules, regulations and practices,” and “As a result of the conference and discussions the railroads voluntarily agreed to adopt and adhere to certain practices and the board was so notified in writing”; and that thereafter the board “issued its order to show cause and recited therein the results of the informal conference and discussions and set forth in said order the practices agreed to be observed, designating them as A to D(c).”
In asserting a denial of due process, for want of a hearing on notice “as to why an order should not be made directing it to adopt the practices” thus undertaken, the railroad urges, inter alia, that no hearing “as to why said practices should not be adopted, was in fact held,” no evidence “pro or con said practices was taken,” no findings of fact “as to the relation of said practices to the safe operation of the Railroad was ever made,” and there is a “vast difference between agreeing voluntarily to adopt a certain practice and having the Board pre-emptorily to direct one to do certain things,” and had the “carrier realized that the board was going to order them to do whatever they voluntarily agreed to do there is no doubt that they would have acted differently.” How differently, and to what end, are not made to appear.
The only rational interpretation of this course of procedure is that, assimilated to the pretrial practice in ordinary litigation, this conference was designed to determine the unchallenged security requirements. The safety measures thus voluntarily assumed were embodied in the board’s order to render them enforceable rather than subject to the will of the railroad, a course in keeping with the only reasonable understanding of the transaction. Certainly, it was understood that this voluntary undertaking was to be deemed an obligation that would render proof unnecessary and take the subject matter out of the litigated category. It could not *440have any other meaning. There could not have been any other purpose. There was no suggestion contra during the board’s proceedings; and there is no contention now that these requirements are in any sense arbitrary or unreasonable. To hold that there was a denial of due process here is to grasp the shadow and ignore the substance of the right.
Otherwise, I concur in the reasoning and result of the deliverance by Mr. Justice Jacobs.
For modification and remandment — Chief Justice Vanderbilt, and Justices Oliphant, Wachenfeld, Burling, Jacobs and Brennan — 6.
For modification — Justice Heher — 1.