138 A. 845 | Pa. | 1927
Argued April 11, 1927. Whether a borough has power to condemn and appropriate the property and franchises of an electric light company located therein and furnishing electric light and power to the municipality and its citizens and to others outside the borough limits is the question we are to answer on this appeal. From the commencement and throughout the proceedings appellant has denied the power of the municipality to take its property.
The argument made to us covered a wide field. We think the proper contentions of the parties lie within a small compass, that of the language of the statute under which the borough claims the right to take from the company its property and franchises — the Borough Code of May 14, 1915, P. L. 312, sections 41-50, as amended by the Act of June 27, 1923, P. L. 845. Unless the power rises out of the expressions which the legislature there used it does not exist.
That part of the statute with which we are to deal is loosely drawn. Section 41, page 379, provides that boroughs may manufacture or purchase electricity, for the use of their inhabitants, and section 43, page 380, that whenever any electric light company is furnishing electric light to any borough or the public "such borough is authorized to purchase the works of such . . . . . . corporation, at such price as may be agreed upon by the borough or [and] . . . . . . a majority in value of the stockholders of such corporation." Section 44 is thus worded: "Upon failure so to agree, the borough may present a petition to the court of common pleas asking for the appointment of viewers to assess the value of the plant and works so taken"; and then goes on to provide for the appointment of viewers. Section 45, after outlining certain features of the proceedings before the viewers, requires that they, after having "taken such testimony *160 . . . . . . touching the value of the property and franchises, . . . . . . shall determine the amount of damages that such . . . . . . corporation will sustain, and to whom payable, and make report thereof to the court," with a provision for the entry of judgment on the report. Then follow sections providing for an appeal to the common pleas, for a trial therein, and for an appeal to the Superior or Supreme Court and also for the filing of exceptions. Section 50 reads: "Before any borough shall construct an electric plant, or purchase the property ofany . . . . . . electric light company, the question of the increase of the debt of such borough, for any of such purposes, shall first be submitted to the qualified voters of the borough, in the manner provided by law for the increase of indebtedness of municipal corporations."
Bearing in mind the criteria for discovering whether the power of eminent domain is conferred, — as laid down by Mr. Justice KEPHART, then of the Superior Court, in Philadelphia's Petition (
It is urged that the words "so taken," in the phrase "to assess the value of the plant so taken," import the existence of the power of eminent domain. These words are a very small foundation upon which to erect the superstructure of so great a power, particularly when account is made of the fact that under the literal wording of the statute a borough may appropriate a plant furnishing it with light wherever located. There are some boroughs *162 in the State which are being furnished with light by plants miles away from their limits.
Even appellee's counsel does not put the stress of his argument on the proposition that the power of eminent domain in its ordinary acceptation is given by the sections of the act in question, rather he contends that a somewhat novel form of the power is created, — the right to effectuate a purchase or acquisition. He says in his printed brief: "It [the borough] has always tenaciously maintained that such a taking of the plant and works of the Solar Electric Company was an enforcement of its right to purchase" and he relies for support of his position in the main on Hanover Boro. v. Hanover Sewer Co.,
The water company cases are all differentiable from the one at bar as will be seen by an examination of Reynoldsville Boro. v. Reynoldsville Water Co.,
That the sections of the Borough Code of 1915 and its supplements with which we are concerned do not confer power on boroughs to appropriate electric plants is made certain when we look at other sections of the statute where the power of eminent domain is given. In section 2 of chapter VI, article XIX, page 386, boroughs are authorized to "acquire by purchase or condemnation" real estate for the construction of wharves and *164 docks; in chapter VI, article XIV (a), section 1, page 366, in constructing bridges they "shall have the right to take, use and occupy private property;" in section 17, subdivision (d), page 368, they are empowered to "purchase, condemn and maintain" toll bridges; in chapter VI, article XV, section 3, page 370, boroughs may acquire conduits "by purchase or by condemnation;" in chapter VI, article XVII (a), section 25, page 377, they may acquire "by purchase or condemnation" lands necessary to preserve water supplies from contamination; in the same chapter, article XVII, section 15, page 384, they can "take and appropriate" real estate for garbage and incinerating furnaces; in chapter IX, article I, section 2, page 412, they are empowered to "enter upon, appropriate and acquire . . . . . . private property" for park purposes; and in chapter X, article I, section 4, page 419, they may "enter upon and appropriate private property" for the purpose of establishing public libraries. When the lawmakers desired to confer the power of eminent domain on boroughs, they did so in clear and unmistakable terms.
It may be worth while to mention again the legal principles which control when it is set up that the right of eminent domain, one of the greatest attributes of sovereignty, has been conferred. They have their best statement in Chief Justice BLACK'S opinions. In P. R. R. Co. v. Canal Commissioners,
It is the contention of appellee that appellant should have appealed to the court of quarter sessions from the ordinance passed by the borough for the purpose of acquiring its property, and that, not having done so, it is barred from raising any question as to the borough's action. The Borough Code provides, page 393, section 9, "Complaint may be made to the next court of quarter sessions, upon entering into recognizance, with sufficient security to prosecute the same with effect, and for the payment of costs, by any person aggrieved in consequence of any ordinance, regulation, or act done or purporting to be done in virtue of this act, and the determination and order of the court thereon shall be conclusive." It is not in all cases that an appeal to the quarter sessions is the exclusive remedy: Wright v. France et al.,
In the view that we take of the major question involved, other contentions of the parties become of no consequence.
The assignment of error is sustained and the order and judgment of the court below are reversed at the cost of appellee. *167