Pittsburgh Railways Co. v. P. S. C.

Citation115 Pa.Super. 58,174 A. 670
Decision Date03 October 1934
Docket Number164-1934
PartiesPittsburgh Railways Co. et al. v. P. S. C. et al
CourtSuperior Court of Pennsylvania

Argued May 4, 1934

Appeal by protestants from order of Public Service Commission of the Commonwealth of Pennsylvania, Application No. 27735-1933, in the case of Pittsburgh Railways Company and Pittsburgh Motor Coach Company v. Public Service Commission of the Commonwealth of Pennsylvania and County of Allegheny.

Application for certificate of public convenience approving the operation of motor buses. Before Public Service Commission.

The facts are stated in the opinion of the Superior Court.

The Commission granted the application. Protestants appealed.

Error assigned, among others was the order of the Commission.

Reversed.

P. A Fleger, and with him V. W. Thomas and E. P. Griffiths, for Pittsburgh Railways Company and Pittsburgh Motor Coach Company, appellants. -- The Commission should have determined whether the applicant had the power to render the service Wilson v. The Public Service Commission, 89 Pa.Super. 352; Pennsylvania Utilities Company v. The Public Service Commission, 69 Pa.Super. 612; Fogelsville and Trexlertown Electric Company v. Pennsylvania Power and Light Company, 271 Pa. 237.

Samuel Graff Miller, and with him Paul H. Rhoads, Legal Assistants, and E. Everett Mather, Jr., Assistant Counsel and John Fox Weiss, Counsel, for The Public Service Commission of the Commonwealth of Pennsylvania, appellee, cited: Schuylkill Railway Co. v. Public Service Commission, 268 Pa. 430; Westside Electric Street Ry. Co. v. Public Service Commission, 91 Pa.Super. 162; Passyunk Avenue Business Men's Assn. v. Public Service Commission, 73 Pa.Super. 242.

Mortimer B. Lesher, and with him J. P. Fife, Solicitors for County of Allegheny, intervening appellee, cited: Wentz v. Philadelphia et al., 301 Pa. 261.

Before Trexler, P. J., Keller, Cunningham, Baldrige, Stadtfeld, Parker and James, JJ.

OPINION

Trexler, P. J.

This is an appeal from the order of the Public Service Commission granting a certificate of public convenience to the County of Allegheny to operate motor buses between the court house situate at Grant Street and Fifth Avenue in the City of Pittsburgh to a park known as North Park located in McCandless and Pine Townships and between the court house and South Park located in Bethel and Snowden Townships.

The report of the commission states that: "The county has acquired these parks under authority of law; it has spent some three million dollars in their acquisition and equipment, not to mention the cost of annual maintenance, operation and rehabilitation. It owns and operates them for the health, comfort, convenience and welfare of its citizens. If given the right to operate, the county will purchase or lease such equipment in type and number as, after investigation, is determined to be most advantageous and economical.

"The application is protested by the Pittsburgh Railways Company, a street railway operating in the territory; by its affiliate, The Pittsburgh Motor Coach Company, which operates buses in connection with the street railway system; and by the Brentwood Motor Coach Company, also a motor bus utility operating in the county. All three of these protestants are vitally interested in the application, as they would be competitively affected by the county's engagement in the desired service."

The petition is based under Article 3, Section 3 (d) of the Public Service Act of 1913, July 26, P. L. 1374, 66 PS Sec. 182, p. 556, which requires a municipality to secure the commission's approval before it can enter into competition with a utility then rendering service within the municipality.

In the present discussion we will not consider the question whether the commission was right or wrong in finding that the facts submitted justified the conclusion that the proposed bus line was "necessary or proper for the service, accommodation, convenience or safety of the public." That drops out of the case by reason of the fact that we have all come to the conclusion that the County of Allegheny has no power to run a bus line. The commission took the position that the question of the power of the county was not before it; citing Westside Elec. St. Rwy. Co. v. P. S. C., 91 Pa.Super. 162, and counsel argues that the members of the board are not called upon to pass upon the powers of the applicant; that they are not a body of men learned in the law and have no judicial functions (admitting, however, that "at times the corporate power of the parties before it must be considered,") and that the granting of a certificate of public convenience cannot be made the foundation for judicial determination of what franchises do or do not belong to any corporation interested, and that the law on this phase of the appeal is settled.

There is no doubt that where the question of eminent domain arises it has been held that the right to condemn should not be passed upon by the Public Service Commission but what distinguishes these cases from others to which we will refer later is that the order of the Public Service Commission is merely preliminary to the appointment of viewers and the question of applicant's right to take the property can be raised when the proceedings to ascertain the damages are in progress. The approval of the exercise of power is only one step in the course to be followed by the appointment of viewers. See Reiber et al. v. P. S. C., 83 Pa.Super. 507; Kerry v. W. Penn Power Co., 86 Pa.Super. 522; Dickel v. Bucks-Falls Elec. Co., 306 Pa. 504, 160 A. 115 and Westside Elec. St. Rwy. Co. v. P. S. C., supra. On the contrary in cases, other than those involving the right of eminent domain, we find abundant authority for the Public Service Commission to pass upon the power of the public company to exercise certain rights. In Wilson v. P. S. C., 89 Pa.Super. 352, this court took occasion to say: "Obviously in some complaints and applications, for instance, against rates or service, or for the approval of incorporation, it is sometimes necessary for the commission to consider and pass upon the rights and franchises possessed by the respective corporation involved, but in an application such as we are now considering (an eminent domain case) such questions are not involved." There is no question in the present case that the protestants are in competition with the proposed right which the county...

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