Setzer v. City of Pottsville , 73 Pa. Super. 573 ( 1920 )

Opinion by

Porter, J.,

The Public Service Commission, on September 21, 1916, issued to the plaintiff a certificate of public convenience authorizing him to operate, as a common carrier of passengers, a line of motor busses between the Borough of Minersville and the City of Pottsville, including a certain designated route in said city. He continued to operate said vehicles from the date of the certificate until June 3, 1919, when the city duly passed an ordinance designating certain streets on which interurban busses should be operated and forbidding such operation upon the other streets of the city. The enforcement of this ordinance would render it necessary to change a part of the route over which the plaintiff operated his line of vehicles within the limits of the city; in other words, the route designated by the' ordinance was, in some respects, different from that specified by the certificate of public convenience under which the vehicles had been operated. The plaintiff filed this bill to restrain the city front enforcing the ordinance. The court below, upon the filing of the bill, issued a preliminary injunction and fixed a day for a hearing upon a motion to dissolve the same and after a hearing upon said day entered an order dissolving the preliminary injunction. The plaintiff appeals from that order.

The plaintiff contends that it was not within the power of the city to enact an ordinance which would require him to operate his motor vehicles upon a ronte, within the city, different from that designated by the certificate of public convenience, issued by the Public Service Commission. He relies upon the Public Service Company Law, Act of July 26, 1913, P. L. 1374, and in his argument thus states his position: “The contention of the appellant is that the authority of the Public Service Commission is superior and its orders and regulations, conferring the privileges stated on the appellant, are binding alike upon him and the city.” This argument completely ignores the authority conferred upon the city by the Act of June 1, 1915, P. L. 685, the material part of which is as follows: “That each city may regulate the transportation by motor vehicles (not operated on tracks) of passengers or property, for pay, within the limits of the city, or from points in the city to points beyond the limits of the city. In such regulation the city may impose reasonable license fees, make regulations for the operation of vehicles, the rates to be charged for transportation, and may designate certain streets upon which such vehicles, if operated, must be operated.” This statute was enacted subsequently to the approval of the Public Service Company Law and if there is any conflict between them the later statute must, of course, prevail. We have, however, held that there is no conflict between the statutes, that they must be construed together: Scranton Railway Co. v. Fiorucci, 66 Pa. Superior Ct. 475. No individual or company has the right to operate, as a common carrier, a motor vehicle for the transportation of persons or property, without first obtaining from the Public Service Commission a certificate of public convenience, but the authority to designate the routes over which such motor vehicles shall operate is by the Act of 1915 vested in the city. The Public Service Company Law did not make the municipalities public service companies, 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: City of Easton v. Miller, 69 Pa. Superior Ct. 554; 265 Pa. 25. It cannot, therefore, be said that the city did not have power to enact a general ordinance regulating the subject-matter with which we are now dealing. The Act of 1915 conferred upon cities power to pass ordinances of a specific and defined character, to “designate certain streets upon which such vehicles, if operated, must be operated.” When the legislative grant is of this specific character an ordinance passed pursuant thereto cannot be impeached as invalid because it would have been regarded as unreasonable if passed under the incidental power of the municipality, or under a grant of power general in its nature. “In other words, what the legislature distinctly says may be done, cannot be set aside by the courts because they deem it to be unreasonable or against sound policy”: Ligonier Valley R. R. Co. v. Latrobe Boro., 216 Pa. 221; Mahanoy City Boro. v. Hersker, 40 Pa. Superior Ct. 50. The court below very properly, in view of the condition in which the record then stood, refused to continue the preliminary injunction.

The order of the court below dissolving the preliminary injunction is affirmed and the appeal dismissed at cost of the appellant.