O'Brien v. Public Utility Board. 92 N. J. L. addition of just enough to meet the increased wages forced on the railway company by the war labor board, could not make unreasonably high what was not so before. The failure to allow any return on capital invested would, if this had been a case of the board fixing a rate instead of a case of its approving a rate fixed by the railway, have been a violation of the principle of the gas rate case that a just and reasonable rate must be sufficient to induce the investment of capital in the business and its continuance therein. It is argued by the prosecutor that the board could not proceed without evidence or a hearing even under section 17 (h). In view of the fact that the same result would follow mere inaction on the part of the board, I am unable to yield assent to the argument. It is at any rate beside the mark in the present case. Here there was evidence of the president of the railway company, and no evidence on the part of the prosecutor. I am unable to see how the board could draw any other conclusion than it in fact drew. The question of the justice and reasonableness of a rate, is a question of inference from facts proven, rather than in itself a matter of proven fact. The question is common in the law. Three examples are enough. A landowner on a running stream may make a reasonable use of the running water. It is for a court or jury, using its best Our conduct judgment, to decide what is a reasonable use. must be that of a reasonably prudent man. What is reasonably prudent conduct is for the jury using its best judgment to decide. At common law and under the act of congress known as the Sherman act, a contract in restraint of trade is valid if the restraint is reasonable, invalid if it is unreasonable. It is for the court or jury as the case may be, to decide what is reasonable or unreasonable in the light of the So in the question of a evidence and the decided cases. reasonable rate where there is evidence for and no evidence against the rate and no decided case holding the particular rate to be unreasonable, the tribunal whatever it may be, is compelled to the inference of reasonableness, as the board was in this case. If any doubt were left, it would be removed by the suggestions made by counsel for the prosecutor as to 92 N. J. L. O'Brien v. Public Utility Board. the method by which the railway might meet this increased. expense for wages. One counsel suggested that the difficulty might be met by decreasing the service rendered. I do not doubt that the service might be reduced to such an extent that a five cent fare would suffice. But that was not the problem presented to the board. 1neir problem was whether to approve the railway's plan to keep the service up to the present standard and allow it the means to pay the increased wages with which the war board had not provided it. The board had the power to reduce the efficiency of the service but apparently preferred to keep up the service even at the cost of increasing the rate. This is a question of business policy. No one, except counsel for the prosecutor, now suggests that a reduction of efficiency would be tolerable or tolerated. This solution of the difficulty seems out of the question. We can hardly imagine the municipalities, whose interests are represented by the prosecutor, adopting their counsel's suggestion that the deficiency in revenue might be met by a reduction in the efficiency of the service. The other counsel suggested, with seeming seriousness and indifference to results, that relief could be found in the appointment of a receiver, and that if upon a valuation of the property a fare of five cents would result in adequate return on that value, it could make no difference what effect it might have, and that the railway would only be in the position of one who had in the past made improvident bargains. This argument, however, overlooks the nature of the case and the issue presented. No one asked that the board determine what was a fair rate. The only issue was whether the increased expenses due to the action of the war labor board might properly be made up out of the proposed increased fare. The petitioner was the Public Service Railway Company and that company alone. If the proceedings were to be turned into one where the petitioner was to run the risk of business suicide, the interests of underlying companies would be affected; their contracts might be terminated, and it might even be impossible for them to earn a fair return on their investment. They would be entitled to notice and a hearing under section 16 (c). O'Brien v. Public Utility Board. 92 N. J. L. Evidently the present proceeding contemplates no such remedy as a receivership as suggested by counsel. Probably no such remedy was contemplated by the legislature. The failure to provide a procedure by which so dractic a remedy could be legally accomplished, indicates that when the legislature by section 17 gave the board power by order in writing to require every public utility to furnish safe, adequate, and proper services and to keep and maintain its property and equipment in such condition as to enable it to do so, and by section 16 gave the board power after hearing upon notice, to fix just and reasonable rates which should be imposed, observed, and followed thereafter by any public utility, it was contemplating orders to the operating public utility only. I do not say that if a reasonable rate drove the operating company into insolvency, that rate could not be established against the underlying companies. I only say that the present proceeding is not adapted for that purpose. The act contemplates a regulation of still existing public utilities for the benefit of the public, not their destruction. It was decided more than thirty years ago that the constitutional power was a power to regulate, not a power to destroy. Railroad Commission Cases, 116 U. S. 307, 331. I am unable to agree with counsel for the prosecutor either that the remedy for the needs of the railway company to meet the higher wages of its employes is to be found in a lessened efficiency of service or in a receivership. There is no suggestion that government aid is possible. There is no other source of revenue except fares. I think the granting of the railway company's petition was required by the evidence. The contention of the prosecutor that the rates fixed by ordinances cannot be changed by the consent of both the board and the railway company is disposed of, so far as this court is concerned, by the decision in Collingswood Sewerage Co. v. Collingswood, 91 N. J. L. 20, and in Atlantic Coast Electric Ry. Co. v. Board of Public Utility Comrs., post p. 168. The suggestion that the matter is one for the legislature alone and not for the public utilities commission is settled adversely to the prosecutor by the United States Supreme Court (Railroad Commission cases, cited above), and by constant practice in this and other states. The orders brought up by these two writs must be affirmed, with costs. STATE, DEFENDANT IN ERROR, v. SALVATORE AGNESI, PLAINTIFF IN ERROR. Submitted March 21, 1918-Decided June 17, 1918. 1. The rule that a person is justified in taking life for self protection when there exists a necessity for resorting to violence for self protection and necessity for using the means that were employed to secure the defence of the person, does not apply where the necessity is of his own creation. Consequently, a man cannot justify, as self-defence, the killing of his wife's paramour, when the former, armed with a deadly weapon, had, in the night, broken into the house where the wife and the paramour were sleeping. and shot the paramour when the latter picked up an axe lying beside the bed. 2. A declaration, signed by the deceased, taken before a magistrate in narrative form, containing statements made by an interpreter as to what decedent said in answer to questions propounded to him, although subject to criticism as to its accuracy, is admissible in evidence. 3. The killing by a husband of the paramour of his wife, in the act of adultery, is reduced to manslaughter only when the circumstances are such that the husband may be supposed to have acted in a sudden transport of passion, or heat of blood upon a reasonable provocation and without malice. If such an interval of time elapsed between the provocation and the act of killing as is reasonably sufficient for reason to assume its sway, the act is not mitigated to manslaughter. On error to Passaic Oyer and Terminer. The prisoner was living in a state of separation from his wife under articles which provided that he would not sue, molest, disturb or trouble any other person whomsoever for receiving, entertaining or harboring her; that he would not without her consent, visit her or knowingly enter any house or place where she should dwell, reside or be, or send or cause to be sent any letter or message to her. The wife and the decedent, as the prisoner knew, were occupying the same apartments which had been rented by the wife. The prisoner says he was afraid of the decedent, who was known to him as a man of violence and had made threats to kill the prisoner. On a Saturday the prisoner bought a revolver because as he says of the decedent's threats. The other essential facts are thus stated by the prisoner: "Then on Monday night I again saw my wife. I used to see her almost every night, and then I thought that my wife wanted me, and I also wanted my wife back, because we were twenty-two years married and have property together. I did not know myself what to do. Then on Tuesday I went to work again, always sick, I couldn't work. I couldn't rest and I could not eat because I was always thinking about my wife and my son, and that me and my son did not have no home. On Tuesday I went to work again. On Tuesday night I came home at six o'clock. I couldn't eat when I got in the house, and then I went to a moving picture show, and I came home at nine o'clock, and I sat on the stoop there smoking, and I had a watch and I looked at it, and it was six o'clock, and then after that I looked at the watch again, and I looked again. I laid down in the bed and could not get to sleep because I was always thinking of my wife and son. Then I got up again from the bed and I started to smoke a pipe on the porch. Then I looked at the watch and it was 11 o'clock. Then I went back to bed and I couldn't sleep. I looked at the watch again and it was 12 o'clock. Then I laid down and couldn't get to sleep because I was always thinking about my wife and my son and I could not get to sleep. Then right away I thought what my son had told me, to go to his mother, and to talk to her and say to her that she should come back to me. I was afraid to go there that night because it was twelve o'clock and because I was afraid of Galizio, because he was always there in that house. Then |