Opinion
12-10-1923
HEALY et al. v. SIDONE.
Thomas G. Tuso, of Vineland, and Walter H. Bacon, of Bridgeton, for complainants. Theo. W. Schimpf, of Atlantic City, for defendant.
Bill of injunction by John Healy and others, trading as the Healy Bros. Transportation Company, and the Millville Traction Company, a corporation, to restrain Frank Sidone from operating an auto bus line in violation of municipal ordinance. Conclusions for defendant.
Thomas G. Tuso, of Vineland, and Walter H. Bacon, of Bridgeton, for complainants.
Theo. W. Schimpf, of Atlantic City, for defendant.
LEAMING, V. C. Millville Traction Company, a street railway corporation, and Healy Bros., a partnership operating an auto bus line, have joined in a bill to restrain defendant from operating an auto bus line along the route or parts of the routes over which complainants operate.
There appear to be no material facts in dispute. Both complainants have complied with all legal requirements and are by law privileged to operate the street railway and bus lines respectively along the streets in Landis township described in the bill as their respective routes. Defendant is operating on said streets without municipal sanction, and without sanction of the board of public utility commissioners.
No copy of the ordinance of Landis township has been offered in evidence; but the averments of the bill and its accompanying affidavits are to the effect that an ordinance of that township requires a license for the operation of auto busses, and that a license to defendant was issued by that township for the year 1922, but none for the year 1923, and that defendant has been arrested and convicted of operating in 1923 without a license from that township. These averments are not denied.
It also appears that in 1923 complaint was made against defendant to the board of public utility commissioners, and that a bearing on that complaint has been had before that board; that it was there adjudged that defendant was operating his auto bus line unlawfully, but that the board was without jurisdiction to proceed further in the matter, because defendant's auto bus line had been in operation since prior to March 15, 1921. See P. L. 1921, p. 390.
It thus appears that defendant is operating without municipal sanction in apparent defiance of a municipal ordinance which exacts that requirement, and without sanction of the board of public utility commissioners.
I am unable to discern on what theory that board determined it was without jurisdiction. Section 2 of the act of 1921 (P. L. 1921, p. 390) withdraws from the jurisdiction of that board only persons operating auto busses under and in accordance with the consent of municipal authorities granted prior to March 15, 1921, "or under and in accordance with the renewal of such consent." Defendant enjoyed no renewal of municipal consent.
Accordingly, the only question here presented for determination is whether this court will restrain defendant's operations at the instance of complainants. I am unable to regard that as an open question in this state.
In Public Service Railway v. Reinhardt, 92 N. J. Eq. 365, 112 A. 850; Id. on appeal, 93 N. J. Eq. 461, 115 A. 747, 119 A. 878, it was determined that the act of March 17, 1916 (P L. 1916, p. 283), which required auto busses in cities to perform certain duties and procure municipal consent as a condition precedent to the right to operate, could not be said to have been enacted for the benefit of street railway companies and, in consequence, a street railway company could have no standing in a court of equity to restrain the operation of an unlicensed auto bus line. That decision renders it impossible for this court at this time to recognize in complainants a right to invoke the process of injunction against operations of defendant, even on the assumption that defendant is operating without a license lawfully exacted by the township, and without sanction of the board of public utility commissioners. Neither the township ordinance nor the 1921 amendment to the Public Utility Act can be here assumed to have been enacted for the benefit of either of the complainants.
Section 33 of the Public Utility Act (P. L. 1911, pp. 374, 387) is cited to sustain the power of this court. But no order of that board has been made in the premises. Nor is it clear that that section relates to the enforcement in this court of duties of public utilities at the instance of an individual or corporation.
So far as the enforcement of the municipal ordinance, as such, is concerned, it must be said that it is no part of the duty of this court to enforce the penal laws of the state or the ordinances of a municipality by injunction, unless the act sought to be restrained is a nuisance. Ventnor City v. Fulmer, 92 N. J. Eq. 478, 113 A. 488; affirmed Id., 93 N. J. Eq. 660, 117 A. 925.