70 Pa. Super. 464 | Pa. Super. Ct. | 1918
Opinion bt
The Wilkes-Barre Light Company, the intervenor, presented its petition to the Public Service Commission,
The determination of the commission appealed from in this case was filed and the order that the certificate of public convenience issue was made on May 22, 1917. The áppeal of. the Wilkes-Barre Company to this court was taken on June 28, 1917. The Public Service Company Law, Act of July 26, 1913, Article VI, Sec. 17, P. L. 1424, relating to appeals from the Public Service Commission, provides: “Within thirty days after the filing of any finding or determination b$ the commission, or after the date of service of any order,......any party to the proceeding affected thereby may appeal therefrom.” It was manifestly the legislative intention to make a distinction between those cases in which the action of the commission involved only the approval of something in which the general public had an interest, but did not directly affect the rights or property and did not require any individual or corporation to perform any service, such a case as that with which we are now dealing, on the one hand; and those in which the commission issued an order, requiring some individual or corporation to do or abstain from doing some act, or to perform the act in a certain way, and in which notice to
The principal question upon which the parties are at variance is: “Was there any valid contract or franchise agreement made and presented to the commission by a party competent to do so?” This is the second' question presented by the appellant in its statement of the questions involved. Mature consideration of the provisions of the ordinance of the City of Wilkes-Barre and the facts presented to the commission has led us to the conclusion that the existence of a contract, absolutely binding upon the city and upon the company, was not necessary to the exercise of jurisdiction by the commission in this case. The Wilkes-Barre Light Company was incorporated under the provisions of the Act of May 8, 1889, P. L. 136, and its right to enter upon the streets of the city was subject to the limitation contained in that statute, viz: “No company shall enter upon any street in any city......until after the consent to such entry of the councils......shall have been obtained.” The city had the right to determine the conditions upon which it would consent. The ordinance here involved contained provisions not only regulating the manner in which the appliances of the light company should be installed upon the streets, but required the company to enter into a contract to furnish certain service to the city gratuitously, to' bid upon furnishing street lights
The Public Service Commission did not withhold its approval of the ordinance in this case, and we do not deem it necessary to discuss the question of the power of the legislature to impose upon a public service corporation, under the facts here presented, the burden of obtaining the consent of the commission before exercising the powers conferred by its charter. We deem it safer to wait until some company attempts to exercise such powers without obtaining the approval of the Public Service Commission. There was much, testimony taken in this case and the commission was assisted by very able counsel who presented the contentions of the respective parties. It is not our function to act as a second administrative commission. The finding of the commission that the approval of this appli-' cation is necessary and proper for the service, accommodation, convenience or safety of the public is prima facie evidence of the reasonableness thereof, and the burden of proving the contrary rests ‘upon the appellant. Whether it is necessary or proper for the service, accommodation, convenience and safety of the public of the City of Wilkes-Barre that their requirements in the matter of heat, light and power be provided by one or two public service companies cannot be a question of law. We certainly cannot affirm that the determination of the. commission is not in conformity with law. There may be a question under the evidence as to whether the determination of the commission was reasonable, but it cannot be said that it was without evidence to support it, and in such a case we are not to substitute our judg
The determination of the Public Service Commission is affirmed and the appeal dismissed at the costs of the appellant.