78 Pa. Super. 271 | Pa. Super. Ct. | 1922
Lead Opinion
Opinion by
The order appealed from in this case is based on the proposition that the appellant company [respondent below], was required by law to obtain from the Public Service Commission a certificate of public convenience before it could perform any of its chartered powers in the Borough of Ellwood City. This appears from the following extracts from the order: “The commission is of opinion that the Harmony Electric Company, respondent, should have applied to the commission for a certificate of public convenience evidencing the approval of the commission of the proposed rendition of electric service in the Borough of Ellwood City before said respondent had entered said municipality and commenced the construction of its lines and facilities preparatory to rendering said service”......“The above order is made without prejudice to the right of the Harmony Electric Company, respondent, to mate formal application to this commission for approval of the beginning of the exercise of any alleged rights within said municipality.” If this proposition cannot be sustained,
Harmony Electric Company, appellant, was formed by the merger of twenty-six corporations duly organized for the supply of light, heat and power by means of electricity. All of these companies were duly incorporated, and the merger or consolidation was completed and work begun as required by law, before the Public Service Company Law went into effect; in which respects the case differs from Relief Electric L., H. & P. Co.’s Petition, 68 Pa. Superior Ct. 1, and Jenkins Twp. v. P. S. C., 65 Pa. Superior Ct. 122. It makes no difference from a legal standpoint what length of time elapsed between such consolidation and the effective date of the Public Service Company Law.
The situation was then precisely like that passed on by this court in Penna. Utilities Co. v. P. S. C., 69 Pa. Superior Ct. 612, where it was held that such a merged or consolidated company doing business in a part of its territory was “as to the entire field not a proposed public service corporation.” The court, speaking through Judge Kephart, said: “When the Lehigh Company built its transmission lines through other portions of the district and furnished its commodity from its central station in these districts, these acts were in behalf of and on account of all the territory and inured to the benefit of the entire field to the same extent as it did in the locality where the business was actually transacted...... Being a corporation actually doing business and desiriug to further perform its charter obligations by supplying its commodity to persons resident within its territory, the Public Service Company Act does not require it to secure a certificate of public convenience. Section 2 of article III cannot apply to a company actually engaged in the business called for in its charter. Section' 18 [article V] certainly did not have in contemplation a certificate for each step taken by a company doing business on January 1, 1914.” (pp. 621-622.)
We, therefore, start with the proposition established by the Penna. Utilities Company case, supra, that the appellant company having been formed by a merger of a number of duly chartered corporations, authorized to supply electricity in their several districts, prior to January 1, 1914, when the Public Service Company Law went into effect, and having likewise begun its operations in good faith before that date, it was “as to the entire field not a proposed public service corporation” and did not require the certificate of public convenience provided for in article III, section 2, and article Y, section 18, before it could perform its chartered powers anywhere within that field. One of the constituent companies of the consolidated corporation was the Ellwood Electric Company which was incorporated to supply light, heat and power by means of electricity to
The Act of 1889, which provides for the incorporation of electric light, heat and power companies makes only one distinction between supplying light, heat and power by electricity in a city or borough and in a township or other district: As to a city or borough no such company “shall enter upon any street in any city or borough of this Commonwealth until after the consent to such entry, of the councils of the city or borough in which such street may be located, shall have been obtained” (p. 137); otherwise there is no difference. It will be noted that the act, differing from the constitutional provision as to street railways [article XVII, section 9], does not say “shall not be constructed,” or “shall not carry on business,” or, “shall not begin the exercise of any rights” or “shall not supply electricity” but restricts the prohibition to, shall not “enter upon any street,” etc. The act details at great length the powers of the company: (1) Authority to supply light, heat and power or any of them by electricity to the public, etc.; (2) power to make, erect and maintain the necessary buildings, machinery and apparatus for supplying such light, heat and power or any of them, and (3) to distribute the same, (4) with the right to enter upon any public street, lane, alley, or highway for such purpose, to alter, inspect and repair its system of distribution. And then follows the proviso:
A large part of the distribution line, the further construction of which the Public Service Commission has enjoined, is located in Wayne Township. We have already decided in the case of Penna. Power Co. v. P. S. C., 70 Pa. Superior Ct. 24, that the appellant company has a right to do business, — which includes the construction of its lines and facilities, — in said township, without securing a certificate of public convenience. We are of the opinion that under the authorities above cited the appellant company has also the right to perform its chartered powers, that is, to supply electricity, to the public in the adjoining Borough of Ellwood City without obtaining such certificate of public convenience, to the extent that it does not enter upon any street or highway of said borough. Before it can make such entry upon any street or highway of the Borough of Ellwood City, it must first secure an ordinance authorizing such entry and the terms and provisions of said ordinance will have to be approved by the Public Service Commission.
Our conclusions are not affected by the. fact that in the year 1914 the Public Service Commission, upon the protest of the intervening appellee, refused to approve a contract between this appellant and the Borough of Ellwood City under which appellant agreed to furnish said borough all the electric current used therein for street, commercial and domestic lighting for a period of ten years, (affirmed by this court in 71 Pa. Superior Ct. 355, though appellant’s right to furnish electricity within the borough was then not disputed, p. 357), or that in approving the erection of a high-power transmission line running from Harmony Junction through said borough to Koppel, there was annexed a condition, as stipulated in the borough ordinance granting permission to construct said line, that the line thus erected in the borough should not be used to furnish electric light or power within said borough. The orders of the commis
The Public Service Commission has great powers given to it by the act creating it, but they are limited to those expressly granted to it or such as are implied necessarily from a grant of such powers: Coplay Cement Mfg. Co. v. P. S. C., 271 Pa. 58. Indeed the act specifically reserves to every public service company “the full enjoyment and exercise of all and every the rights, powers and privileges which it lawfully possesses, or might possess, at the time of the passage of this act, except as herein otherwise provided” (article III, section 12)’. If a corporation under the law has authority to do business within a prescribed territory without applying for a certificate of public convenience, it does not lose that right or make its exercise subject to the veto of the Public Service Commission because it submits to that body for approval a municipal contract or ordinance which can only be valid when approved by the commission. The right of the
The record does not show the present appellant to have been in default in its attempt to perform its chartered powers within the borough of Ellwood City. It does not convict it of laches. The record shows a succession of attempts on the part of the appellant company to supply electrical service in the Borough of Ellwood City, frustrated largely by the efforts of the intervening appellee. We do not have here the situation presented in the case of Fogelsville & Trexlertown Electric Co. v. Penna. Power and Light Co., 271 Pa. 237. There the Pennsylvania Company took no steps to perform its chartered obligations in Macungie Township, and in order that the public might not be deprived of the service which it failed to supply, the Fogelsville Company was organized with the consent of the commission and, against the protest of the Pennsylvania Company, was chartered to furnish electric light, heat and power in that township. After the Fogelsville Company had made large expenditures and was performing the duty which it was thus authorized to perform, the Pennsylvania company then attempted to fulfil its chartered obligations and furnish electric current in competition with the Fogelsville Company and the latter sought to enjoin such operations within the township. The Supreme Court held that a court of equity was not the proper forum in which to test the right of the Pennsylvania Company to do a competing business in said township, and that the proceeding should have been by complaint to the Public Service Commission but preserved the status quo created by the injunction until such complaint could be filed. In the instant case the Pennsylvania Power Company has done nothing by reason of any
The order of the Public Service Commission is modified so as to conform with the order here entered. Each party to pay its own costs.
Dissenting Opinion
Oil appeal from the commission to this court, the record “shall include the evidence taken......”: Act July 11, 1917, P. L. 808, amending article VI, section 18. Article VI, section 24, provides “If the court shall, upon the record find that the order appealed from is reasonable and in conformity with law, it shall enter a decree dismissing the appeal and affirming the order of the commission......” The record now before us contains ample evidence that appellant was constructing a transmission line across Tenth Street without a certificate as required by section 12, article V of the Public Service Company Law, and, also, in violation of section 2 of the Act of May 8, 1889, P. L. 136.
I do not agree that our duty is confined to the limits suggested by the following statement in the opinion of the majority: The Public Service Commission made no finding on the subject [occupying Tenth Street] and we are not called upon to do so.” The statute requires that we consider the record; if such consideration shows appellant was constructing the line across Tenth Street, we must treat that fact established; we may not disregard it because no specific finding to that effect was stated by the commission, though of course we might return the record to the commission specifically to state the facts supporting its order.
As a review of the evidence shows the occupation of Tenth Street, I think the order should be affirmed as reasonable and in conformity with law, a conclusion making it unnecessary to pass on the relevance in this proceeding (1) of the commission’s refusal on July 3,1914, to approve the contract between appellant and the borough; and (2) of the certificate of January 7,1915 (M. C. 403-1914).