Valley Railways v. Harrisburg , 280 Pa. 385 ( 1924 )

Concurring Opinion by

Mr. Chief Justice Moschzisker:

The municipal ordinance recited in the majority opinion does not pretend to order the Valley Railways off Second Street, nor will it necessarily have that effect, for existing conditions, so far as appellant’s use of its privileges in the street are concerned, may be entirely changed by the simple expedient of permitting it to run cars with the traffic on the other track. If the corporation with which appellant originally arranged for the privileges of the highway will not make some reasonable agreement for this apparently proper use, there are other means to that end. To my mind, the question now involved concerns the regulation of appellant’s privileges, and I think the case presents a situation within the jurisdiction of the Public Service Commission; for, where, under circumstances such as those at bar, a corporation shares with another like corporation the exclusive privilege of occupying a street for railway purposes, I think the joint use of the street should be regarded for purposes of regulation as though it were by a single company; and if, in the course of time, the privilege, as employed, proves unsafe in the opinion of the muñidpality, the latter, through the appropriate governmental agency, may require such rerouting of cars as will facilitate the general movement and proper public control of traffic on the highway, thus adding to the safety and adequacy of the service rendered: see section 17 of article V of the Act of 1913, P. L. 1414, and section 1 of article V of the same act, as amended by the Act of March 23,1921, P. L. 43.

Paragraph S of article II, section 1 (page 1384), as amended by the Act of March 23, 1921, P. L. 43, to the effect that “no......street railway corporation shall be required to give the use of its tracks......to any other common carrier,” does not control here, because that particular paragraph has to do with the subject of through routes, and these words, when taken with their context, really mean that the use of the tracks of one company cannot be given to another company for the purpose of forming a through route except, perhaps, as specially provided in the act: I think the words above quoted do not contemplate, or comprehend, a situation such as the one presented at bar, where an operating company is already making some use of the tracks of another railway company, and the question is as to the regulation of that use in the public interest.

My thought is: The Public Service Commission having jurisdiction, we should not at this time decide as to the validity of the ordinance involved, but should stand by what is stated in St. Clair Boro. v. Tamaqua, etc., 259 Pa. 462, 468, where we said: “Since the Public Service Company Law has been on our books we have consistently adhered to the rule that matters within the jurisdiction of the commission must first be determined by it in every instance before the courts will adjudge any phase of the controversy: Bethlehem City Water Co. v. Bethlehem Boro. (No. 2), 253 Pa. 333, 337-8; New Brighton Boro. v. New Brighton Water Co. et al., 247 Pa. 232, 240, 241, 242.” Also see Pittsburgh Rys. Co. v. Pittsburgh, 260 Pa. 424, 427, where, speaking of the Public Service Company Act, we said: “Since the act......has become part of our statute law......tbe courts have no jurisdiction to consider or adjudge tbe issues involved until they come to them on appeal”; and where, in an equity case, we further said that, after deciding the Public Service Commission had jurisdiction, the proper practice was “to grant such an injunction as would maintain the status quo and afford defendant municipality an opportunity of petitioning for due authority to proceed with its contemplated [plan].” Fogelsville, etc., Co. v. Penna., etc., Co., 271 Pa. 237, 245, is a case where an order to maintain the status quo was entered.

The reasonableness of the ordinance in controversy necessarily depends on the facts to which it is to be applied, and these may be fixed by a proper order obtained under the system of regulation we now enjoy. Should the Public Service Commission make an order enabling the Valley Railways Company to maintain its service on Second Street, under conditions consistent with both the company’s franchise rights and the terms of the ordinance, the application of the latter to such circumstances might, and probably would, be adjudged entirely reasonable. On the other hand, should no such relief be granted by the commission, or otherwise obtained, the reasonableness of the ordinance would then be open to question. Whatever the outcome, all points of law may be raised and determined on appeal after the commission has considered the matter. In the meantime, according to my idea, an order should be made reversing the court below, reinstating the bill, and directing it to grant a preliminary injunction to maintain the status quo, so that the municipality, or any of the corporations concerned, may file an application with the Public Service Commission, along the lines above indicated; but I would not at this time decide, or express any view on, many of the points of substantive law determined in the majority opinion.

Mr. Justice Simpson concurs in this opinion.