City of Easton v. Miller , 265 Pa. 25 ( 1919 )

Opinion by

Mr. Chief Justice Brown,

While nothing can be profitably added to the opinion of the Superior Court, affirming the judgment of the court below, we may add a word of concurrence in the view that the City of Easton had the power to pass the assailed ordinance and to enforce it against the Easton Transit Company. That the city possessed such power prior to the passage of the Public Service Company Law of July 26, 1913, P. L. 1374, is undoubted. One pf the purposes of the State in creating a municipality is to give it the control of its streets: City of Williamsport v. Commonwealth ex rel., 84 Pa. 494; and in recognition of this inherent power in a city or borough, as the agent or representative of the Commonwealth, to exercise supreme control over its highways, in the interest of the safety of the general public, there was inserted in Article XYII of the Constitution of the State the provision that “no street passenger railway shall be - constructed within the limits of any city, borough or township, without the consent of its local authorities.” Neither the legislature nor courts can trespass upon the discretion thus given to those authorities: Allegheny City v. Millville, Ætna & Sharpsburg Street Railway Company, 159 Pa. 411; Carlisle & Mechanicsburg Street Railway Company’s App., 245 Pa. 561. Without the consent of the City of Easton the tracks of the Easton Transit Company could not have been laid upon its streets. After the easement upon them was acquired, with the consent of the city, and the tracks were laid, whenever in the interest of public safety it became necessary to change the measure of the enjoyment of the easement or privilege, and the municipal authorities so declared, in the exercise of a reasonable discretion, the transit company was bound to submit to the change: Scranton Gas and Water Company v. Scranton City, 214 Pa. 586. A jury, the court below and the Superior Court have held that the ordinance in question is reasonable, and in this we concur. Was the power to pass it taken away by the Public Service Company Law?

The Act of July 26,1913, defines public service corporations and provides for their regulation by prescribing and defining their duties and liabilities. It does not make a municipality a public service company, and cities and boroughs, acting strictly as such, are unaffected by it in the exercise of their functions and powers and in the performance of their municipal duties. The Public Service Commission fully understands this, for it has said: “Speaking generally, this commission would have no authority under the act of assembly to issue any orders against boroughs, since they are not public service companies, within the meaning of the Public Service Company Law. Such boroughs are vested with certain authority over the use and occupation of the streets and highways within their territorial limits, and for an abuse of such authority, unwarrantably interfering with the performance of the railway’s duty as a public service company, the company would have an appropriate remedy in the courts”: In re Use of Streets of Municipality by Street Railway, 2 Pa. Corp. Rep. 127. This seems to be overlooked by learned counsel for appellant in citing York Water Company v. City of York, 250 Pa. 115, in support of their contention that the regulation of the use of the streets of the City of Easton by the transit company is for the Public Service Commission. As pointed out by our late Brother Elkin, the water company had become a public service corporation by the Public Service Company Act, and the power which had been given to the city by the Act of June 27, 1913, was expressly taken from it by the repealing clause of the Act of July 26, 1913. No power vested in the City of Easton prior to the passage of that act has been taken from it, even by implication. All that it insists upon now is that its reasonable control over the use of its streets by the transit company continues unimpaired by any legislation. It has not attempted to dictate the kind of cars to be used, what equipments are to be upon them, or how they are to be manned. In short, it is not attempting to interfere with any control given to the Public Service Commission over the operation of the transit company’s cars; and it could not: Mahoning & Shenango Ry. and Light Company v. New Castle, 233 Pa. 413. It is merely exercising its continued power to regulate, by a reasonable ordinance, the use of the easement which it gave to the transit company.

The objections urged against the ordinance are groundless, and the judgment of the Superior Court is affirmed.