275 Pa. 542 | Pa. | 1923
Opinion by
On complaint of the Pennsylvania Power Company, a corporation, furnishing service by means of electricity in the Borough of Ellwood City, the Public Service Commission made an order which, in effect, prohibits the Harmony Electric Company, a corporation also enjoying a charter right to furnish electric service in the same borough, from “supplying electric current to consumers” in the territory in question; the order likewise enjoins the Harmony Company from constructing “any additional facilities” for that purpose, without first obtaining a certificate of public convenience evidencing the approval of the commission.
When the case came before the Superior Court, it held (78 Pa. Superior Ct. 271) that the Harmony Company had “a right......without first securing a certificate of public convenience......to construct its line and supply current......in such parts of the Borough of Ell-wood City as do not require it to enter upon any of the streets or highways of said borough,” or to use a certain “high-tension line” theretofore constructed by it within the borough limits; and that tribunal formally modified the order of the commission so as to provide
The Harmony Company (appellee) was formed, under the Act of April 29, 1874, P. L. 73, and its several supplements, particularly the Act of May 8, 1889, P. L. 136, by the consolidation of twenty-six other electric companies, all incorporated under the laws of this State; among those entering into this merger was the Ellwood Electric Company, which was incorporated May 26,1913, for the purpose of supplying light, heat and power by means of electricity to the public in the Borough of Ell-wood City.
The Superior Court found from the evidence before it that the Harmony Company had been “carrying on business in good faith,” and furnishing service to the public in the territory covered by the charters of certain of its constituent companies, “before the Public Service Company Law went into effect,” that it had made repeated attempts “to perform its chartered powers within the Borough of Ellwood City,” but had been hampered in this latter respect by several complaints to the Public Service Commission; and, specifically, that there was nothing on the record to convict the Harmony Company of “laches,” or “default,” in “its attempts to perform its chartered powers within the Borough of Ellwood City.”
On above findings, the Harmony Company (so far as the portions of the Borough of Ellwood City here in contemplation are concerned, namely, such parts as it could lawfully enter without' municipal consent) was not a proposed public service corporation, but one duly organized, existing, and, in good faith, furnishing service
We cannot agree with the contention of appellant that the correct construction of the Act of 1889 forbids any and all service by a company, enjoying charter rights within a borough, until the consent of the municipal authorities is first obtained, whether or not streets are to be occupied in rendering such service; on the contrary, we think the above-quoted provision must be read as it is written, and, when so read, it gives to boroughs the right simply to forbid the use of their streets, but not to prohibit a company from exercising its charter
On prior occasions, the Public Service Commission refused to approve a tentative contract between the Harmony Company and the Borough of Ellwood City, and, in approving the construction of the aforementioned “high-tension” transmission line through the borough (paragraph 2, of this opinion) that body granted its permission on condition that this line should not be used by appellee to furnish electric light or power within the municipality. We cannot sustain appellant’s contention that, since, in rendering any character of service, appellee might infringe these rulings, and create the competitive situation which it was then sought to prevent, the commission, in order to enforce its decrees, can now require the corporation against which they were made to obtain a certificate of public convenience before the latter can perform any of its charter rights within the borough limits. As to these matters, we agree with the Superior Court that “the Commission,......in refusing the one application or in annexing conditions to the other,......could not [either directly or indirectly] take away from the electric company any of its chartered powers......which it had not forfeited by laches, nonuser or other default”; yet this, in effect, is what the affirmance of appellant’s position would mean.
As to the alleged use of “Tenth Street” for a proposed service line of the Harmony Company, there is no finding by the commission that this thoroughfare has been, or is to be, employed by appellee for that or other purposes, and the company expressly disavows an intention to use either the street in question, or any other highway, in its proposed service. On this point, we need add only that, since such use would be a violation of the orders of the commission and the rulings of the Superior Court, the rights of appellant, and others, in that respect, are
The rules of law governing the several points here involved have all been so fully discussed by us in recent cases, and by the Superior Court, that it would serve no useful purpose to go over the ground again at this time; it is sufficient to say that, so far as statutory construction and legal principles are concerned, there is nothing decided herein which is either new or in conflict with our prior decisions; hence, the citation or discussion of authorities is unnecessary.
The first assignment of error, which complains of the final order of the Superior Court, is overruled, and the other assignments, which simply complain of excerpts from the opinion of that tribunal, are dismissed.
The order appealed from is affirmed.
