135 A. 362 | Pa. | 1926
The question we are here to determine is whether defendant water company possesses and may exercise the power of eminent domain to condemn plaintiffs' lands for the purpose of erecting a reservoir. On plaintiffs' bill for an injunction to forbid the taking, the learned court below refused the relief prayed for; and from this denial of the remedy to which they allege themselves to be entitled, plaintiffs lay before us this appeal.
The Philadelphia Suburban Water Company was formed by the merger and union of thirty-four water companies, all of them chartered prior to April 13, 1905, and all possessing the power of eminent domain. Their immediate unification was in pursuance of conveyances made October 2, 1923, under the assumed authority of the Act of May 17, 1923, P. L. 251, of all of the franchises and properties of the constituent companies to the Springfield Consolidated Water Company, whose name was thereafter changed to Philadelphia Suburban Water Company. Two other companies were subsequently leased.
Asserting that under its charter it has the power so to do, appellee seeks to build a reservoir on Pickering Creek in the County of Chester. The properties of plaintiffs lie along the stream, and the building of the reservoir to impound its waters makes necessary the appropriation of part of the lands belonging to each of them.
The territory served by the water company is in the counties of Delaware, Chester and Montgomery and comprehends the most thickly settled section adjacent to the City of Philadelphia, containing a population of more than 250,000 persons, rapidly growing in numbers, the increase amounting to approximately 25,000 each year. Defendant now supplies 51,000 customers and is receiving on an average 5,000 new patrons every year. It has three impounding reservoirs, the one in question *381 which it seeks to enlarge, one on Crum Creek and one on Neshaminy Creek. The consumption of water in the very near future will exceed the supply in its storage reservoirs. If it is to meet the demands of the communities which it serves with an adequate supply of pure water, it is imperative that defendant shall have additional reservoir facilities.
The right of a water company to condemn land for the purpose of building reservoirs is conferred by the general corporation Act of April 29, 1874, P. L. 73.
Appellants' first position is that their lands cannot be taken because private spring and water supplies are exempt from condemnation under the Act of May 16, 1889, P. L. 226. That act, after giving water companies the right to appropriate water, contains a proviso, which reads: "Provided, that this act shall not apply to private spring or private watersupplies." It may be questioned whether, in view of the facts appearing on this record, the springs and small streams on appellants' properties are private spring or water supplies within the meaning of the proviso. Without deciding that question, however, we are of the opinion that this provision does not cover the situation with which we are concerned in this case, for the reasons adverted to by Judge RICE in Gring v. Sinking Spring Water Co.,
Appellants' second position is that defendant cannot obtain the right to condemn private property for a reservoir to supply water in districts which already have an available supply merely by buying in the charter of the company operating in the district in which the property it seeks to condemn is located. In other words, by purchasing the company which unquestionably possesses the right to condemn plaintiff's lands, defendant itself does not acquire the right to condemn them, where the purpose of the taking is to supply water to some districts which already have a supply available from other reservoirs. The supply of pure water to the public in territory thickly populated is to-day a most difficult problem, and its difficulties are bound to multiply as time goes on and population increases. Whatever may have been this court's position in regard to the water problem in previous decades, when its great importance may not have been fully realized, the tendency, as our decisions in their evolution will show, has been to broaden the view and to construe liberally grants of power to water companies, furnishing, as they do, the most essential of all public services to mankind, vital to life itself. Appellants admit in their brief that Hey v. Springfield Water Co.,
For the same reasons we are of opinion that appellants' third proposition stands upon no foundation and falls of its own weight. They contend that a district which was originally served by a water company which did not possess the right of eminent domain may not be served by a company which does possess that right and which had leased the original company, if the service requires the lessee company to exercise its condemnatory powers. To so rule would upset the unification of water companies doctrine to which we have given our assent and would lead to an utter disregard of the rights of the people in certain districts to be served with water. It would mean that if their water supply was insufficient and the company furnishing it to them was without condemnation powers they might not be able to obtain water. Under the law as it exists to-day a company which has or can acquire water may unite with another company which has too small or no supply and fill the latter's mains, so that its customers may be served. Water companies exist to supply people with water and legal *384 valves ought not to be interposed to prevent the free onward movement of the supply.
Appellants' fourth proposition is without substance. It is that a water company may not condemn a dwelling house in the occupation of the owner or the curtilage appurtenant thereto. It might be sufficient to say as to this that there is no such reservation of power from water companies as there was from railroad companies under the general Railroad Act of February 19, 1849, P. L. 79. Although such a condemnation was prohibited by the general Railroad Act, when the railroad widening statute was passed there was no such prohibition in it. Railroad companies in widening their roads are permitted to condemn a dwelling house in the occupation of the owner: Marlor v. Phila., Wilmington Baltimore R. R. Co.,
Appellant's fifth question involved as they propound it is: Can a water company with original power of eminent domain circumvent the Act of April 13, 1905, which takes away this power from such companies thereafter incorporated merely by leasing another company formed after the passage of the act and operating it as part of a general system? Appellants do not dwell upon this question in their printed brief and it was not touched upon, as we recall, in oral argument. It is answered adversely to appellants by the cases of Hey v. Springfield Water Co.,
We now come to the real question in the case, the one most fully argued at bar, and upon which appellants *385 mainly rely: Are the Acts of May 20, 1921, P. L. 1010, authorizing the merger of water companies, and of May 17, 1923, P. L. 251, authorizing the sale of the franchises and property of one water company to another, constitutional? It is argued that their titles are defective in that no notice is given of the dropping of the requirement in the Water Company Merger Act of June 7, 1907, P. L. 455, that all water companies thereafter formed by merger and consolidation or thereafter purchasing the property and franchises of any other such company must accept the provisions of that act and of the Act of April 13, 1905, P. L. 152. The latter act provided that the right of eminent domain as respects the appropriation of streams, rivers or waters or the land covered thereby should not be exercised by water companies thereafter incorporated under any law.
In considering the question of the constitutionality of these two statutes on the grounds of attack laid by appellants, it is important to take into account, first, that all the thirty-four companies which combined to make up the defendant company did possess the right of eminent domain, having been incorporated prior to April 13, 1905. No new powers in this respect were conferred on them by the Acts of 1921 and 1923. They lost this power only if they merged or consolidated under the Act of 1907. The two acts in question prescribe, in the event that they shall merge or consolidate by purchase, that one of the details required of them by the Act of 1907 need not be carried out, — their acceptance of the two prior Acts of 1905 and 1907. The fallacy which runs through appellants' argument is, that they, as it were, subconsciously treat the proposition of unconstitutionality as though the two acts which they attack create new and unheard-of powers in the defendant, whereas all that has been done is to remove the requirement, in the event of merger and consolidation, of surrendering powers already possessed. *386
It would also seem that appellants have approached the consideration of the question of unconstitutionality from a distorted angle and not along the line of view which we have laid down for determining the validity of legislative enactments when they are ranged with the Constitution. The presumptions, — state of mind as it were, — should favor constitutionality. "A construction that invalidates an act must, under all circumstances, be rejected for one, supported by reason, which will not conflict with the Constitution; for a court is obliged to resolve every doubt in favor of the validity of legislation, and can never accept as correct a meaning which conflicts with the organic law if such a course can reasonably be avoided": Com. v. Benn,
Appellants' main reliance for their contention that the acts are unconstitutional because of a defect in title is based upon the cases of Strain v. Kern,
Appellants argue before us, although apparently they did not in the court below, that the Acts of 1921 and 1923 are discriminatory and violate article III, section 7, of the Constitution of Pennsylvania and the 14th Amendment to the Constitution of the United States because they are special or class legislation and "deny to certain citizens, in this case corporations, the equal protection of the laws." The argument is based upon the fact that the Act of April 13, 1905, denied to water companies thereafter incorporated the right of eminent domain, and the Act of 1907 provided as to those thereafter merging or consolidating by purchase that they must accept the provisions of the Act of 1905, whereas the Acts of 1921 and 1923 apply to water companies organized prior to April 1, 1905. It is contended that this establishes arbitrarily two classes of water companies the privileges of which are different, those created prior to April 1, 1905, and those chartered between that date and April 13th. It is urged upon us that this is class legislation forbidden by the Constitution because it creates the two classes of water companies. All companies organized after April 13, 1905, are without the power of eminent domain. It is only those organized prior to that date which possess it. The law says to such of them as were in existence before April 1, 1905, *390 you may merge or consolidate and retain the power; to those (if any there be, and as to this the record is silent) chartered between April 1st, and April 13th, you may not merge or consolidate by purchase without surrendering the power. The law does not require them to merge or consolidate, their so doing would be their own voluntary act. We fail to see how this makes the acts in question class legislation or denies to such corporations, created in the short period referred to, the equal protection of the laws. The Commonwealth has the undoubted right to say what corporations which it has created may merge or consolidate.
Lest it might be thought by our disposition of the pending controversy that we approve the remedy invoked by appellants, we wish to say that that question has not been considered by us. Owing to the importance of the case, we have determined it on the record as it stands, and have answered all the questions which appellants presented to us. It is at least debatable, whether, as the effect of their bill might be to strike down completely the charter of defendant, their remedy should have been not under the Act of June 19, 1871, P. L. 1360, but by a proceeding at the instance of the attorney general: Gring v. Sinking Spring Water Co.,
The assignments of error are overruled and the decree of the court below affirmed at appellants' cost.