Of course, there was nothing that could be done in that particular phase of the matter which would operate as a stay, because the Judge in a matter of that kind sits as a mere legislative agent. But, after the Court had appointed the commissioners, this railroad company, having neglected to act promptly in the way that I have already suggested, by certioraring the resolution, and thereby preventing the expenditure of comparatively large sums, I suppose, of public moneys, still waited; not only waited, without attempting to halt the proceedings, but they actually attended before the condemnation commissioners. Counsel says with a reservation, or with an expostulation, or a protest, or what not, but they appeared there for some purpose, and I suppose to see what the award would be. I don't know whether they offered testimony or not as to the value of the land. That has not been spoken of.
Mr. Church: They did offer testimony.
The Court: With the apparent idea, then, that they hold on to their legal rights with one hand, and, if the award justified them in letting go, they would let go of their legal rights and take the money.
Now the question is whether in that situation this railroad company is in a position to ask relief from a Judge of the Supreme Court, the relief being in the shape of a writ of certiorari; and whether or not the writ will be awarded is a matter resting in the discretion of the Court. I am not speaking about the question of laches, but, in determining whether this writ ought to issue, I must take into consideration all of the circumstances. It appears that the railroad company, instead of acting promptly, has stood by supinely and seen the county of Essex expend a large amount of money for the purpose of acquiring property, the value of which for public purposes would be greatly depreciated if they were to be prevented from taking this land as a part of the scheme to be carried out.
So, I would be inclined to say that, in view of that situation, in the exercise of a proper discretion, I ought to tell the railroad company that I cannot see my way clear to allow this writ; that it would be greatly injurious to the people of Essex county and the people of the State, even, and would produce that injury, although the people and their representative, the Park Commission, are in no way responsible for it.
Then there is another reason why I think this writ ought not to be allowed.
This railroad company received from the State of New Jersey a grant, by the terms of which it was permitted to acquire lands for the construction and operation of a railroad between given points. That grant was not as a matter of course made to the railroad company for the purpose of benefitting it, but to provide a means of transportation by which the public would be served; and it was an implied part of the contract which was created by the tender of the grant and its acceptance, that this corporation would, within a reasonable time, not only acquire the land but build the railroad and carry the people of this State backward and forward across it for the compensation which the Legislature permitted the railroad company to charge; and for over half a century they have violated the implied condition of their agreement. They have acquired the land. They have not attempted, and so far as I know never will attempt, to devote this land to the purposes for which alone they were entitled to acquire it. They are holding it out of the general property of the State, and by doing so prohibiting its use for the benefit of the State, or any of its citizens, or anybody else. In other words, it is not land that is being held by this company for railroad use. It has never been so used by them, since it was acquired over a half century ago, and, so far as anybody can tell, it is quite uncertain whether it ever will be used for the purposes for which its acquisition was permitted.
Now, in that situation, the State comes along and through its agent, the Essex County Park Commission (for that Commission is a State agent) says: 'We need this land for public use. You have had your chance to devote it to that use; you have consistently declined, by inaction at least, to so devote it, and now we are going to devote it to the uses and benefits of the State and of the people of that part of the State located within the borders of the County of Essex,' and I am inclined to think that this was the situation contemplated by the Legislature which induced the reservation in the Act of 1921 that railroad companies should not be permitted to act as dogs in the manger and hold out land which they cannot use themselves, never have used, and perhaps never will use, for the only purpose to which they could devote it under their charter. And so, I think, for this reason also this application should be denied.
ABSTRACTS OF RECENT PUBLIC UTILITY DECISIONS.