Matter of Petition of Public Service Coordinated Transport

On Petition eor Rehearing.

Per Curiam.

No judge who voted with the opinion having moved a rehearing the petition for rehearing is, under the practice of the Court, denied.

*226 In view of the unusual nature of the petition for rehearing, in the face of a unanimous decision of the Court, it may be well to summarize the steps in the consideration of the case. The matter was first considered on the State’s petition for certification which was opposed by the respondent companies but which we granted. After the briefs and the accompanying appendices on the appeal were filed, each Justice not only studied the briefs but, in line with our practice, prepared his individual typewritten memorandum thereon. The time for oral argument was enlarged on each side and two intervenors representing independent bus lines were also heard. Every aspect of the case was considered at length at our weekly conference preliminary to the drafting of an opinion. The draft was likewise discussed intensively in conference and changes were made so that the opinion might reflect the views of every ' member of the Court, which, in its revised form, it does. The course pursued is our normal procedure. The only distinctive features in the case were the procedural question discussed in the opinion and the complications resulting from the respondent companies having turned an emergency rate application into a permanent rate base proceeding without notice to interested parties. This was unprecedented.

The petition for rehearing has likewise been considered by every member of the Court except Mr. Justice Case who had left the country on vacation before the petition was distributed and we have all also conferred with respect thereto. As to the matters therein contained which were briefed and argued and were properly before us for decision we find nothing in the petition for a rehearing that casts any doubt on our opinion, if impartially read.

The matters mentioned in the petition for a rehearing that have arisen since the order under review are not properly before us on this appeal. FTor have we the power to bring them before us before they go to the Board of Public Utility Commissioners. We were especially concerned with the statement in the petition for rehearing:

*227 “Subsequent to the issuance of the Opinion of this Court the Petitioners requested the Board of Public Utility Commissioners to enter into negotiations for a temporary rate pursuant to R. 8. 48 :2-21.1 which provides :

“ ‘The board may, during the pendency of any hearing instituted by it, on its own initiative or on complaint, in which the approval or fixing of just and reasonable individual rates * * * is in issue, or at any other time, negotiate and agree with any public utility for an adjustment of the individual rates * * * for any product or service supplied or rendered by such public utility. Such adjustment may be for, or without, a specified' limit of time. In no event shall any such adjustment be regarded as contractual. Such adjustment shall at all times be subject to change through the proceedings provided for by this chapter, or through negotiation and agreement under this section. The board as a part of any such negotiation and adjustment shall provide for the continuance, suspension or other disposition of any hearing of the character aforesaid then pending.’

“The Board of Public Utility Commissioners refused to proceed as provided for by that statute, basing their refusal upon the Decision and Mandate of this Court which they interpret to require further hearings on the Petition filed by the Petitioners on October 30, 1947.”

We therefore asked the Board of Public Utility Commissioners for a copy of such application, order of refusal and the Board’s minutes relating thereto. Under date of July 10, 1950, the President of the Board informed us by letter:

“I am informed by Emmett T. Drew, Secretary of the Board of Public Utility Commissioners, that you have requested copies of any application made by Public Service Coordinated Transport and Public Service Interstate Transportation Co. seeking to have this Board negotiate a temporary rate under authority of R. 8. 48 :2-21.1 together with copies of any order denying the application and the Board’s minutes with respect thereto.

“Please be advised that no formal proceedings have been taken by P.S.C.T. and P.S.I.T. companies in this matter and therefore the records sought cannot be supplied.

“In this connection I wish to make special reference to Pages 16 and 17 of the petition for rehearing filed by these companies, in order to inform the court of the exact facts.

“On June 28, 1950 William H. Blake and Winslow Ingham, attorneys for the two companies, came to the Board’s offices at Newark for a conference. They asked whether the Board would be willing to negotiate a temporary rate and they were promptly informed by *228 each member that we would not do so under any circumstances. They then said they would write a letter making the request and desired our reply in confirmation of our statement that we would not negotiate a temporary rate. This letter has not been received.”

Suffice it for us to say that nothing in our opinion in any wise limits the power of the Board of Public Utility Commissioners under B. 8. 48:2-21.1. That statute was not construed by us in our opinion. It may be pertinent, however, to observe that it was passed in 1935 as Chapter 49, 17 years after the O'Brien case, which was decided in 1918. We cannot assume, as the petition for rehearing would have us do, that a coordinate branch of the State Government will not do its full duty when the case is remanded to it, which will be done forthwith.

The petition for reargument is denied and the matter will be remanded at once.

For reversal and remandment—Chief Justice Vandekbilt, and Justices Case, Hehek, Oliphant, Wacheneeld, Bur-ling and Aokerson—7.

For affirmance—None.