
    ERIE RAILROAD COMPANY, PROSECUTOR, v. BOARD OF PUBLIC UTILITY COMMISSIONERS AND BOARD OF CHOSEN FREEHOLDERS OF HUDSON, DEFENDANTS.
    Submitted December 3, 1914—
    Decided August 12, 1915.
    1. It is peculiarly within the province of tbe board of public utility commissioners to determine whether there is any peril at a railroad crossing and the nature of the protection necessary to obviate such peril. Such determination will not be interfered with if there is any testimony upon which its determination of fact can rest.
    
      2. The duty imposed by the hoard o£ public utility commissioners . upon a railroad to provide safeguards at a railroad crossing should not he made more onerous than (die necessity for the protection of life, limb and property demands. Therefore, an order made by the board of public utility commissioners requiring that a railroad keep a flagman at. its crossing at periods of time when there are no trains running, will be set aside.
    3. The power conferred upon the board of public utility commissioners by section 22 of the act concerning public utilities (Pamph. L. 1911, p. 383), is a delegation of the police power and does not give it the judicial power to regulate easements as conferred upon the Court of Chancery by the state constitution.
    On certiorai i.
    
    Txflorp Justices Swayze, Pakichu and Tía usan.
    For the prosecutor, Collins & Corbin, George S. Hobart of counsel.
    For the defendants, Frank H. Sommer, attorney of hoard of utility commissioners; John A. Dennin, attorney of hoard of chosen freeholders of Hudson county; James J. Murphy and Joseph M. Norman of counsel.
   The opinion of the court was delivered by

Kalisch, J.

The hoard of utility commissioners, upon a petition filed by the hoard of chosen freeholders of the county of Hudson and after a hearing, made an order which, among other things, commanded the prosecutor Ho keep on duty, during the twenty-four hours of each day of the week, at the crossing of the Belleville (urnpike and the track of the Newark branch of said company, and at the crossing of the said branch of said company, and at. each of said crossings, a flagman to give warning with a flag or flags during the daylight hours and with a lighted lamp or lamps during the hours of darkness of the approach of any and all locomotives, ears or trains of cars to cross the Belleville turnpike at said points.”

This part of the order is complained of by the prosecutor, as being, under the evidence and the safeguards then existing at the crossings mentioned in the order, unreasonable.

The other objection raised and argued in the brief of counsel for the prosecutor against the validitjr of the order is that the statute under which the order was made is unconstitutional,' in so far as it deprives the Court of Chanceiy of jurisdiction over the regulation of the use of easements.

Under the first objection leveled against the validity of the order upon the ground that it is unreasonable, it is contended by counsel for the prosecutor that in view of the undisputed proof in the case establishing the condition of the crossings prior to and at the time the order was made, as to the number of running trains, the amount of vehicular and pedestrian traffic, and the safeguards in use, over and at the crossings, and the opportunity of observing approaching trains in either direction, nevertheless, the situation developed, regarded most strongly against the prosecutor, did not warrant an order for the maintaining of a flagman by the prosecutor, during the twenty-four hours of the day, at each crossing.

The proof established that at each of the crossings there was the ordinary crossing sign warning the traveler of the presence- of the railroad tracks; then on the right hand of the road about five hundred feet from the crossing there was a sign, “Bailroad Grossing. 500 feet.” Of course, these signs could nol he of much service in the night time.

In addition there was located on either side of the tracks, at a distance of one hundred feet therefrom, a bell operated by electricity and controlled through a. track circuit working through a relajn At the crossings the track circuit is two thousand six hundred feet on either side of the crossing, which would start the hell ringing when the train was that distance from the crossing. There was testimonjr, however, on this point before the board which tended to establish that the bells did not always ring at the approach of a train, and also that there had been several accidents at the crossings.

The testimony, as to the extent of view that may he had and the facility with which it can he made, in either direction, by a traveler approaching the crossings in the day or night time, is conflicting, hut since there is evidence which will reasonably support the finding of the hoard against the contention of the prosecutor, such finding will not be disturbed.

From the testimony it appears that the condition which prevails at the crossings is, that on the Newark branch on week days there are fourteen westbound and sixteen eastbound trains; on Sundays nine west and ten eastbound trains; on holidays the number of westbound 1 rains is reduced from fourteen to twelve, and the eastbound from sixteen to twelve. A similar condition exists at the Greenwood Lake branch crossing, with more trains running over that crossing in either direction.

The traffic by wagons and automobiles and on foot over tlio crossings is much greater on Sundays than on weekdays, as appears from actual observations and count made. But after all the amount of traffic over these crossings hears only relatively on the nature of the protection io be provided. 1't is not. the number of or character of the vehicles, or the number of persons, or the amount of property that may he subject to peril that is to ho considered by the board, hut whether there is any jjeril at all. and if there be any, do the safeguards afforded measure up to the danger to be encountered. It will be ai, once recognized that tírese matters aro peculiarly within the province of the hoard to determine and their judgment will not he interfered with, if there is any testimony upon which its determination of fact can rest.

And viewing the case in this light we have been unable to find any evidence which will reasonably support that part of the order of ihe board which directs the prosecutor to keep on duty a flagman during the twenty-four hours of each day of the week at the crossings in question. We think the order in that respect is too broad. The duty imposed on the prosecutor and to bo performed by it should not be made more onerous than the necessity for the protection of life, limb and property demands.

There can he no good reason for obligating the prosecutor to keei-) a flagman at each of the crossings at periods of timo when there are no trains running.

The time tables in evidence showing the running of trains on both branches and over ihe crossings make it manifest that there is no good reason for the presence of a flagman at the crossings during the tweiRy-four hours of each day. The order should have been limited to keep on duty a flagman at the crossings covering the operations of all trains over such crossings.

■ We now come to a consideration of the claim made by the counsel for the prosecutor that the statute under which the order is made is unconstitutional in so far as it deprives the Court of Chancery of its exclusive jurisdiction over the regulation of the use of casements.

The argument made to support this contention is that by article (5, section 1, of the constitution of the State of Uew Jersey, the judicial power is vested in the courts therein mentioned. one of which is the Court of Chancery, and that one of its inherent constitutional powers is exclusive jurisdiction over the regulation of casements, and that, therefore, section 22, of the act concerning public utilities (Pamph. L. 1911, p. 383, ch. 195), as amended by Pamph. L. 1912, p. 111, ch. 80, which, in substance, provides for three cases in which the hoard may make an order for the provision of safety devices'— (a) when a public highway and a railroad cross one another; (b) when a public highway and a street railway cross one another, and (c) when ingress or egress to any railroad station is obstructed by its tracks, trains or engines of any other railroad companjr, intends to confer power on the hoard to regulate easements in certain specified cases, and hence, is an encroachment upon the constitutional powers of the Court of Chancery.

The argument is founded upon an assumption that the regulation of the method of protecting life and limb at grade crossings of a public highway and a railroad is necessarily a regulation of an easement. The fallacy of tire argument lies in the assumption that section 22 confers upon the board judicial power to regulate conflicting easements. There is no such power conferred. There is no such inference to be drawn from the language used. The object sought to be attained is public safety. The legislature has clearly defined the powers of the hoard in that regard. The powers .conferred an1 administrative and the fact that the hoard can put the provisions of the statute into effective operation in any case where there are facts to which the statute applies, does not make the power exercised •judicial. All our statutory special tribunals, such as the health hoards, hoards of education, &e., are clothed with administrative powers and exercise t/uasijudieial functions, yet iu> one has yet made a successful attack upon the constitutionality of the statutes conferring such powers upon the ground that the powers conferred can only be constitutionally exercised by our courts of law. Of course, if a statute attempted to oust a constitutional court of its jurisdiction over the matter it would be void. There is nothing in section 22 of the statute under consideration that in any way attempts to oust the Court of Chancery of its jurisdiction to (leal with eou dieting easements.

A word more may bo said on this subject, and that is, that it is difficult to conceive of a statute of police regulation which does not in some way, in its enforcement, affect the private use and enjoyment, of property, and oftentimes of individual liberty.

In many instances matters pertaining to the public safety, health, morals, etc., have been as a matter of legislative policy, in the interest of the public, left to be conserved by special statutory tribunals created for that particular purpose, in ihat matters affecting life, health or morals may be summarily attended to and dealt with.

Tt is quite obvious that it would be of no practical value to make regulations regarding such matters unless the board entrusted uith the care of the subject had power to give effect' to such regulations.

For the reason that the order made by the hoard is too broad in that it requires the prosecutor to keep a flagman on duty at each of the crossings during twenty-four hours of each day. as has been pointed out, that part of the order will he set aside so that it can he modified by the hoard in conformity with the views herein expressed.  