75 Pa. Super. 54 | Pa. Super. Ct. | 1920
Opinion by
Appellant municipal corporation, Vernon Township, on May 12,1917, filed a petition with the Public Service Commission complaining that the gas company had filed a schedule of rates and had given notice that after May 15, 1917, it “would discontinue free gas and special rates, among others, to......Vernon Township”; that the proposed action was illegal and in violation of a franchise contract under which the gas company’s pipes were permitted to be laid and maintained in the streets in return for “free gas for two school houses and ten street lights.” The petition prayed that respondent be required to answer, and that upon final hearing, the commission “make such order in the premises as may seem’ meet.”
The answer averred that the Public Service Company Law prohibited furnishing “free gas” as desired. The
The gas company furnished service to and in a number of municipalities.
As indicating possible unjust locality discrimination under section 8, article III, P. L. 1393, the attention of the commission was called “to the fact that of the five complaining cities in this case but two, being the Cities of Franklin and of Meadville, make any claim for free gas and the amount claimed in each case is different, while the Cities of Bradford, Dubois, Oil City and Titus-ville make no claim for free gas under their franchise ordinances and are not proceeding thereunder.” It was also stated to the commission that of “five complaining boroughs, three......only make a claim for free gas and in each case the amount is different from that claimed by the other boroughs; while two......make no claims for free gas.” The school district of Meadville claimed “free gas for only one ward, the Fifth Ward, up to a consumption of 450,000 feet, and claims a special rate for gas for the remaining buildings in the school district, of 24 cents per thousand cubic feet, and a like claim for the excess in the Fifth Ward over 450,000 feet, being less than the rate formerly charged.”
The commission dismissed all the complaints after hearing on the merits. Appellant and four other complainants have appealed. Apparently by agreement only one question seems to have been considered, and is
This appeal contains an element not in the other cases. It seems that about January 1, 1915, the gas company notified the township that thereafter free gas would not be furnished and that if bills rendered for gas furnished were not paid, the service would be discontinued. The township then filed a bill to restrain the action threatened ; the bill was dismissed below for failure of proof that a contract had been made providing for free gas as contended by complainant; on appeal the decree was reversed: 256 Pa. 435. Presumably the notice of discontinuance of free gas and the claim of right to charge therefor were not based upon schedules of rates filed with the Public Service Commission. After the decision, a schedule of rates was duly filed as required by the Public Service Company Law, whereupon Vernon Township immediately filed the petition which resulted in the order now under review. Appellant contended below and here that the right to “free gas for two school houses and ten street lights” has been adjudicated by the Supreme Court and that, as a consequence of that decision, the township is entitled under any and all circumstances to the free gas specified, and that so much of the gas company’s service is exempt from regulation. This is not a fair inference from the decision and is a larger claim than could have been made under the pleadings. The court decided that a contract existed as the township claimed and ordered an injunction against the threatened action. But it is not a proper interpretation to say that the decision determines that the regulation of the gas company’s service to Vernon Township shall be determined by that contract; the court has not held that the contract so restricts the commission’s general power of regulation. Doubt about the matter is removed by the opinion of Mr. Justice Fbazee which
Objections to the order of the commission are variously stated by various appellants, and may be summarized as follows: (1) service rendered to a municipal corporation by a public service company is not subject to regulation by the commission; (2) the order is illegal as “an abrogation of such contract in violation of the Federal Constitution”; (3) whether unjust discrimination existed and who had the burden of proof.
1. After invoking the jurisdiction of the commission to obtain regulation of the gas company’s service and rate chargeable therefor, participating in hearings on the merits, and obtaining a decision adverse to its expectation, appellant now contends that the commission has no jurisdiction to regulate the service and rates questioned. We pass the effect of such action on the decision of this appeal, since in any event the order must be affirmed.
The rule that all contracts for service to be rendered by public service companies for a specified consideration were made subject to the reserved regulative power of the state has been described and justified so frequently in recent and familiar decisions that we need only
The effect of the application of the rule is that no promisee to whom a public service company had promised service for a specified consideration or rate may require performance for that consideration or rate if the public interest when determined as the statute prescribes, requires that the service be rendered for a different rate. With regard to such matter the statute has imposed upon the Public Service Commission the responsibility of determining what the public interest requires and how it shall be satisfied.
The dispute in this case is within narrow limits. It is conceded that the gas company intervening as appellee is a public service corporation whose rates for services rendered to any private consumer are subject to regulation, even though there be a contract requiring such service to be rendered at a specified rate (Leiper v. R. R. Co., supra), but it is contended that since the service under discussion is to be rendered, not to a private consumer, but to a municipal corporation, a different rule applies, and that is, that the charge for the service rendered by a public service.company to a municipal corporation is not subject to regulation under the statute. It is also conceded that the statute does not specifically exempt such service from regulation, but the exemption is said to be a fair inference to be made from certain provisions in the act. If municipalities that must buy from some or all of the public service companies enumerated in section 1 article I, must pay whatever such companies choose to charge (subject to constitutional limitations applying to some only), or go without the service (contracts for such service not being within section 11, article III, P. L. 1395; Suburban
Appellants observe that the definition of the word “corporation” used in the. act provides ‘that the term “shall not include municipal corporations except as otherwise provided in this act” (P. L. 1375) and contend that the elimination of a municipality from the term “corporation” considered in connection with section 8, article III (P. L. 1393) prohibiting deviation from a tariff or giving undue preference or advantage “to any person or corporation or any locality......” (the word “person” being defined to include “all individuals, partnerships or associations other than corporations”) shows a legislative intent to exclude from the operation of the statute the service rendered by a public service company to a municipality.
The inference proposed disregards the comprehensive character of the provisions of the statute. “The term ‘service’ is used in this act in its broadest and most inclusive sense, and includes any and all acts done, rendered or performed, and any and all things furnished or supplied, and all and every the facilities used or furnished or supplied, by public service companies in the performance of their duties to their patrons, employees, and the public, as well as the interchange of facilities between two or more public service companies”: section 1, article I, P. L. 1376. Section 1(a), article II, makes it the duty of every public service company to maintain service and facilities “practically sufficient for the accommodation and safety of its patrons, employees, and the public and in conformity with such reasonable regulations or orders as may be made by the commission”
Section 1, article V (P. L. 1402) provides “The commission shall have general administrative power and authority, as provided in this act, to supervise and regulate all public service companies doing business within this Commonwealth. Said power and authority shall include the power to inquire into and regulate the service. ______the safety, adequacy and sufficiency of the facilities, plant and equipment for the carrying on of their business by said public service companies......” Section 2, article V (P. L. 1403) authorizes the commission to prescribe adequate service when it shall appear that the service rendered “in the performance of its public duties within this Commonwealth” is inadequate. In view of such provisions and others of similar import that might be quoted, we cannot agree that the exception exists.
The decisions are against plaintiff’s contention: in Mt. Union Borough v. Water Co., 63 Pa. Superior Ct. 337, and 256 Pa. 516, it was held that a contract to supply water to the borough for “ten years or until such time as said works may be purchased by said borough” in consideration of the grant to the water company of the right to lay and maintain water-pipe lines in the street, did not exempt from regulation the service of the company and the rates at which it should furnish water to the borough. In McKeesport v. Equitable Gas Co., and Pittsburgh v. Phila. Company, 268 Pa. 233 and 234, it was held that equity had no jurisdiction on the bill of a municipality to restrain the gas company from refusing to continue to furnish free gas to the municipality for fuel and for illumination for municipal buildings under contracts quite like those now before us. In assumpsit by Suburban Water Co. v. Borough of Oakmont, (supra), to recover at rates filed in 1918 for water furnished to the borough for municipal purposes, one of the grounds of defense was that no contract with the municipality for the service had been approved by the Public Service Commission; it was assumed that the water had been furnished under a contract made
2. In view of the number of recent decisions against appellant’s contention that the obligation of its contract with the gas company is impaired by the action of the state, we shall merely cite them: Producers’ Transportation Co. v. Railroad Commission, 251 U. S. 228, 232; Leiper v. Railroad Co. (supra); Slate Belt, etc., Co. v. Pub. Ser. Com., 73 Pa. Superior Ct. 493; Suburban Water Co. v. Borough of Oakmont, (supra); City of Scranton v. Pub. Ser. Com., 73 Pa. Superior Ct. 192, affirmed 268 Pa. 192.
It is perhaps due to the able argument presented by the learned counsel for one of appellants in support of the proposition that the Act of May 29, 1885, P. L. 29 (sections 11 and 13) authorizes these contracts and that they stand on higher ground than rate-contracts between public service companies and individuals, or between public service companies and municipalities not so expressly authorized to contract, that we should refer to the contention. It is true that the Act of 1885 provides that gas companies incorporated thereunder “shall not enter or lay down their pipes or conduits on any street or highway of any borough or city of this Commonwealth without the assent of the councils ......” But while the municipality may undoubtedly impose conditions of consent, appellant’s deduction is too large; the language of the Chief Justice in City of Scranton v. Public Service Commission, supra, applies; dealing with the consent which a street railway company must obtain to occupy the streets of a municipality under section 9, article XVII, of the Constitution, he said: “......as between the local authorities and the railroad companies, there may be attached to it terms and conditions which must be performed by the ccim
3. The third contention relates to the unjust discrimination found below and the burden of proof. For the purposes of this appeal, it is immaterial whether the evidence in the record was produced by petitioner or by respondent. The commission found and we agree “that the free service provided for in the contracts......or service at less than the filed rate, if rendered, would work an unjust discrimination against other patrons. ......” The record shows that for a year from a given date in 1917 the value at published rates of the free service rendered by the gas company to Franklin was $900.41; to Cooperstown, $200.32; to Jackson Centre, $24; to Utica, $157.07; to Cochranton, $412.16; to Meadville, $950.53; to Vernon Township, $267.48; to Sharon, $1,037.38. As the commission said, “by free service is meant service, the cost of which is paid by another. The service which is rendered to a municipality without any consideration being paid therefor costs the utility the same amount and to the same extent as any other service of like kind and amount rendered by it. If any service is rendered by the utility free or at a reduced rate, it necessarily must be paid for by someone,
The order is affirmed, costs to be paid by appellant.