Appeal of the City of Pittsburgh , 115 Pa. 4 ( 1887 )

Mr. Justice Stertiett

delivered the opinion of the court January 3d. 1887.

In June 1885, The People’s Natural Gas Company was duly incorporated and organized under “ an Act to provide for the Incorporation and Regulation of Natural Gas Companies,” approved May 29th, 1885, and thus acquired all the rights, powers and privileges specified in the Act. Some of these, as expressed in the first section, are, “to-produce, .mine, own, deal in, transport, store and supply natural gas for either light, heat or both, or other purposes, and have all the rights and privileges necessary or convenient therefor.”

The 2d section contains a proviso, “ that neither this Act nor any other shall bé so construed as to confer, authorize dr give color to any claim of exclusive right in any corporation however formed, dealing in any way or for any purpose in natural gas.”

After declaring that “ the transportation and supply of natural gas for the public consumption ” is “ a public use,” and requiring corporations, organized or provided for- under the Act, “to furnish to consumers, along their lines and within their respective districts, natural gas for heat or light or other purposes as the corporation may determine,” the 10th section provides as follows; “ Any and all corporations, that is or are now, or shall hereafter be engaged in such business, shall have the right of eminent domain for the laying of pipe lines for the transportation and distribution of natural gas,” including “the right to appropriate land upon or under which to lay said lines, and locate pipes upon and over, under and across any land, rivers, streams, bridges, roads, streets, lanes, alleys or other public highways, or other pipe, lines, or to cross railroads or canals: Provided, in case the pipe lines cross any railroad operated by steam, or canal, the same shall be located under or above such railroad and canal, and in such manner as the railroad or canal company may reasonably direct; and provided further, that any company laying a pipe line under the provisions hereof shall be liable for all damages occasioned by reason of the negligence of such gas company,” etc.

It must be obvious, from a consideration of the foregoing and other provsions of the Act, that companies organized under it are invested, in the most ample manner, with the rights •of eminent domain and all other powers and privileges necessary to the convenient and successful prosecution of the business for which they are incorporated. Indeed, they would be absolutely independent of the action of councils if it were not for the provision contained in the llth section making “ the right to enter upon any public lane, street, alley, or highway for the purpose of laying down pipes, altering, inspecting or repairing the same,.....subject to such regulations as the Councils of an.y city may by ordinance adopt,” and that of the 18th section, declaring that companies, of the class to which appellee belongs, “ shall not enter upon or lay down their pipes or conduits on any street or highway of any borough or city .....without the assent of the councils of such borough or city by ordinance duly passed and approved.” So far as the limited authority to legislate on these peculiar subjects has been delegated to Councils, and to that extent only, can the corporate powers, rights and privileges of natural gas companies be qualified or limited. Councils are authorized to give or withhold their assent, without more. They have no right to couple* their assent with any condition or restriction not imposed by the Act, unless the company agrees to accept the same and be bound thereby; and even then, the conditions or restrictions, so accepted by the company, must harmonize and in nowise conflict with the provisions of the Act. The assent of Councils being given, the regulations they are authorized to adopt are such only as relate to the manner of laying pipes, altering, inspecting and repairing the same, and the character thereof with respect to safety and public convenience. These regulations must also be reasonable and not in conflict with any .of the provisions of the Act. In 'all other respects, the powers of such companies are clearly defined and their duties and liabilities prescribed by the Act under which they are incorporated. In view of the limited authority delegated to councils, it is a grave mistake to assume, as they appear to have done in this case, that they have the power to legislate on any and everything dix-eetlyor indirectly connected with the general subject.

• The legislature, foreseeing that disputes would probably arise between municipal authorities and natural gas companies, and that it would be impracticable as well as unsafe to subject the latter to the absolute control of the former, even in regard to the regulations councils are authorized to adopt, wisely provided, in the 12th section, that “ in all cases where any dispute shall arise between such corporations and the authorities of any city.....through or over whose highways pipes are to be laid, as to the manner of laying the pipes and the character thereof, with respect to safety and jxublic convenience, it shall be the duty of the Court of Common Pleas of the proper county upon petition of either party to the dispute, upon a hearing to be had, to define by its decree what precautions, if any, shall be taken in the laying of pipes, and by injunction to restrain their being laid in*any other way than as decreed. It shall be the duty of the court to have the hearing and make its decree with all convenient speed and promptness. Either party shall have a right to appeal therefrom, as in cases of equitju to the Supreme Court, but the appeal shall not be a supersedeas of the decree; and proceedings shall be had in like manner, upon like petition, when and as often as any dispute arises, as to pipes already laid, to define the duty of such corporation as to their re-laying, repair, amendment or improvement.”

By virtue of the authority vested in it by this section, the court below, under the bill as amended, px-oceeded to hear and determine disputes which arose between appellant and appellee ; first, as to whether the assent of the formex-, as contemplated by the 13th section, had been given, and secondly, •as to the reasonableness or legality of certain provisions contained in the ordinance of August 10th, 1885, entitled “An ordinance, Regulating the manner of laying pipes through, over or under the streets, lanes and alleys of the city of Pittsbux-gh, to be used in carrying, transporting, and supplying natux-al gas,” etc, and the Ordinance of December 29th, 1885, entitled “ An Ordinance, Granting to corporations, whose purpose it shall be to furnish .natural gas for heat and light to the public of the city of Pittsburgh, the right to lay pipes through the streets, lanes, roads and alleys of said city for the conveyance and distribution of gas.”

The question of assent arises upon the construction of the latter ordinance. The other question arises under both ordinances in connection with the facts found by the learned Master and approved by the court.

The first section of the Ordinance of December 29th, 1885, declares, “ That all corporations supplying natural gas within the limits of the city, now or hereafter duly organized under the provisions of an Act.....approved May 29th, 1885, and also all corporations whose purpose it shall be to supply-natural gas to the public in the city of Pittsburgh, for illuminating purposes, (either in its natural condition or after treatment in order to better fit it for use as an illuminant) shall have the privilege of opening any street, lane, road or alley, within the limits of said city, and of laying down pipes for tLe purpose of conveying and distributing gas, with necessary street boxes and valves, and with the further privilege of making necessary connections for consumers, subject however to all the provisions of an ordinance of said city approved August 10th, 1885.”

This ordinance is general, applicable to appellee as well $s other companies, and the court below rightly construed it to he an unqualified grant of assent such as is required by the 13th section of the Act, subject only to such reasonable regulations as Councils are authorized by the lltli section to adopt.

The grant of assent, it is true, is expressly subject to all the provisions of the ordinance of August 10th, 1885; but, this means nothing more than that the provisions of the ordinance, so far as they are reasonable and proper regulations, shall be binding on the companies in the exercise of their corporate rights within the city. The second section of the ordinance of December 29th, declaring that “the privileges granted shall be enjoyed.....only upon the following conditions,” means substantially the same thing. While the word, “assent,” is not use'd in the first section of the ordinance, the language employed necessarily implies the assent required by the 13th section of the Act, and hence the phrase “privileges granted” can refer to nothing else than the assent of councils given by necessary implication in the first section of the Ordinance. The word “ conditions ” in the second section is used in the sense of regulations and not conditions precedent. This is further shown by the language employed in paragraphs A, B, C, and D, of same section which is pi'edicated of assent previously granted in the first section. But, if this is not .so, and the provisions contained in these paragraphs and. other sections of the ordinance are to be regarded as conditions precedent, they are inoperative and void, except in so far as they are reasonable and proper regulations, such as Councils, under the limited authority delegated to them, are authorized to adopt.

The City Councils have no power to legislate upon condition. If authority to deal with the entire subject of natural gas and its introduction into the city for heating and illuminaing purposes had been delegated to them by the legislature, there might be some room for the contention that Councils might couple their grant of assent with conditions.- But no such authority was given. As we have seen, it -is obvious on reading the Act in question that two things only were delegated to Councils: first, the power to give or withhold assent to enter upon the city streets; and second, the right to adopt regulations, the reasonableness of which is virtually declared to be a judicial question. Any attempted legislation on the subject, outside of these matters, is ultra vires, a mere usurpation of authority never delegated to them. We conclude therefore that the grant of assent is valid, but. the so called conditions precedent, if they be so regarded, are null and void.

Councils having given the required assent, the next question is, whether in view of the facts found by the learned master, the court erred in deciding that some of the provisions of each ordinance are ultra vires, and others are unreasonable and improper. On that branch of the subject the report of the Master and opinion of the learned judge of the Common Pleas are so satisfactory and conclusive that the decree complained of needs no further vindiction. .

In the latter portion of the opinion the obnoxious portions of each ordinance are referred to in detail, and the reasons for holding some of them illegal and void are so fully given by the learned judge that further elaboration is unnecessary. He is' clearly right as to all of them, except perhaps one or two of minor importance, and as to these we are by no means convinced that there is any error.

In view of the limited authority delegated to councils by. the Act of May 29th, 1885, some of the so called regulations which the court pronounced illegal and void-are extraordinary-specimens of municipal legislation. It is difficult to account for them on any theory that is not incompatible with the public welfare and the duty which councils owe to their constituents. One. of them is the provision evidently designed to deprive natural gas companies of the right of appeal to the Court of Common Pleas, expressly given, by the Act of Assembly. This is attempted by making. Councils themselves a court of final resort, and exacting from the companies a bond,iu; $100,000, binding them to submit to the judgment of that self-constituted tribunal. It requires .no argument to. show that snob a provision as this is a palpable usurpation of authority. But, it is not our purpose' to notice, in detail, those provisions of the ordinances, which have been adjudged illegal and void. On that subject the opinion of the court below is sufficiently full and specfic.

It has been urged that if some of the so called conditions and regulations are pronounced illegal and void, the granting .clause of the Ordinance of December 29th, 1885, cannot stand. This position is untenable, especially in view of the revisory jurisdiction given to the Court of Common Pleas by the Act of May 29th, 1885. As we have already seen, there is no such necessary connection between the title and granting section of the ordinance, and the provisions that are declared illegal and void, that the former must fall with the latter. One section of an ordinance may be declared reasonable and valid, while another-section of the same ordinance may be pronounced unreasonable and void: Commissioners v. Gas Company; 12 Pa. St., 318.

Decree affirmed and appeal dismissed, and it is ordered that the costs of this appeal be paid by the appellant.