231 Pa. 454 | Pa. | 1911
Opinion by
The borough of Bethlehem, Northampton county, was incorporated in 1845, and in 1854 became subject to the general borough Act of April 3, 1851, P. L. 320. The borough of West Bethlehem was incorporated under the same act in 1886 out of territory in Hanover township, Lehigh county. A small stream — the county line — lay between the two boroughs, which were consolidated in 1904 and constitute the present borough of Bethlehem, the defendant.
Prior to the incorporation of West Bethlehem borough the water company laid its mains and pipes through the principal streets of the former village, then in Hanover township, and, at the instance of the inhabitants, supplied them with water for domestic purposes and fire protection. At that time, there were eight fire plugs in the village. The company has, since the incorporation of the borough, continued to supply water for municipal and domestic purposes, and has enlarged and extended its plant to meet the increased demand of the growing population of West Bethlehem borough. The number of fire plugs at present is thirty-nine.
In December, 1908, the town council of the defendant borough passed an ordinance which was approved by the burgess providing for an election to determine upon an
The plaintiff contends that the borough of West Bethlehem by its action and relations with the plaintiff company and its predecessors, resulting in an implied contract with the water company to furnish a supply of water to the borough, has exhausted its power to supply water to its citizens and is estopped from erecting and maintaining its own plant for that purpose. The question for decision in the case is, therefore, whether under the facts and the law the borough has a right to construct its own water plant.
It was found that “no express contract was ever entered into between the plaintiff or its predecessors and the borough of West Bethlehem, defining the relation existing between the said parties, either as to the amount which the borough was to pay for water supplied, or as to the term in which it was to be supplied; and no ordinance granting permission to occupy the streets was ever asked for or received by the plaintiff or its predecessors from the borough of West Bethlehem or the defendant borough.” This finding would ordinarily, under our cases, be a sufficient reply to the contention of the plaintiff company that the borough had selected another agency to supply water to its inhabitants and was therefore estopped from constructing its own plant for the purpose. It is argued,
Keeping in view the settled doctrine that a municipal corporation,- when exerting its function for the general good, is not to be shorn of its power by mere implication
Our conclusion is in accord with our cases on the subject, as a careful consideration and a correct apprehension of the decisions will disclose. The most recent case is Tarentum Water Company v. Tarentum Borough, 230 Pa. 148. There, the water company laid its mains without authority of the borough, and after supplying water to the public for some time council authorized a contract which was subsequently executed by the proper officers
We are all of the opinion that there is nothing in this record that warrants a decree prohibiting the borough from constructing its own water plant.
This bill was not filed by the plaintiff company as a taxpayer, and it is not attempting to assert its rights as such. The validity of the election to ascertain whether the municipal indebtedness should be increased cannot, therefore, be determined in this proceeding. The question was properly .raised and was decided on a taxpayer’s bill filed in another case against the defendants in this case, and we file an opinion herewith in an appeal in that case, Stem v. Bethlehem Boro., infra, sustaining a decree holding the election to be invalid.
The decree of the court below is reversed, and the bill is dismissed at the cost of the appellee.