Water and Power Resources Bd., Dept. of Forests and Waters v. Green Springs Co.

• Decision Date: 09 October 1958
• Citation: 145 A.2d 178,394 Pa. 1
• Parties: WATER & POWER RESOURCES BOARD, DEPARTMENT OF FORESTS AND WATERS, Commonwealth of Pennsylvania, Appellant, v. GREEM SPRINGS COMPANY, Inc. Appeal of COMMONWEALTH of Pennsylvania.
• Court: Pennsylvania Supreme Court

Page 178

145 A.2d 178

394 Pa. 1

WATER & POWER RESOURCES BOARD, DEPARTMENT OF FORESTS AND WATERS, Commonwealth of Pennsylvania, Appellant, v. GREEM SPRINGS COMPANY, Inc. Appeal of COMMONWEALTH of Pennsylvania.

Supreme Court of Pennsylvania.

Oct. 9, 1958.

Rehearing Denied Nov. 5, 1958.

Thomas D. McBride, Atty. Gen., Wanda Chocallo, Deputy Atty. Gen., for appellant.

William W. Caldwell, Caldwell, Fox & Stoner, Garber & Garber, Mark E. Garber, Sr., Carlisle, Thomas D. Caldwell, Sr., Harrisburg, for appellee.

Before CHARLES ALVIN JONES, C. J., and BELL, MUSMANNO, ARNOLD, BENJAMIN R. JONES and COHEN, JJ.

BENJAMIN R. JONES, Justice.

The Water and Power Resources Board of the Commonwealth of Pennsylvania (herein termed the Board)

¹ instituted an equity action in the Court of Common Pleas in Cumberland County wherein it was alleged that the Green Springs Company, Inc.--a fish hatchery in Cumberland County--without the Board's consent or permit had increased by seventeen (17) inches the height of a pre-existing water obstruction or dam across a non-navigable stream flowing through its land. The Board sought two-fold injunctive relief: that the Green Springs Company, Inc., be directed to remove so much of the dam as had been added to the pre-existing dam and be enjoined from interfering with the natural flow of the stream as it existed prior to the date when the dam height was increased. Green Springs Company, Inc. filed preliminary objections raising, inter alia, the question of the constitutionality of the 'Water Obstructions Act', ² the basic authority for the Board's action. The Court below sustained the preliminary objections and held that the Act violated the Constitution of Pennsylvania in that it constituted an unlawful delegation of legislative authority. The Commonwealth then took this appeal.

The sole issue herein presented is whether the 'Water Obstructions Act' which confers upon the Board the power and authority to grant, or withhold consent for, a permit to construct a dam or water obstruction is in violation of Article II, § 1, of the Constitution of Pennsylvania, P.S., as an unlawful delegation of legislative power.

Article II, § 1, of the Constitution of Pennsylvania provides: 'The Legislative power of this Commonwealth shall be vested in a General Assembly which shall consist of a Senate and a House of Representatives'. The Court below summarized the 'Water Obstructions Act': 'The Act of June 25, 1913, P.L. 555 (32 P.S. § 682), known as the Water Obstructions Act, in Section 2 thereof, provides that it shall be unlawful for any person, etc., to construct any dam or other water obstruction, or to make or construct any change therein or addition thereto, or to make any change in or addition to any existing water obstruction, etc., without the consent or permit of the Water and Power Resources Board, in writing, previously obtained, upon written application to said Board therefor. Section 3 provides that each application for the consent or permit required by Section 2 shall be accompanied by complete maps, plans, profiles and specifications of such water obstruction and such other data and information as the Board may require. Section 4 gives the Board the power to grant or withhold such consent or permit, or to incorporate in such consent or permit such conditions, regulations and restrictions as may be deemed by it advisable, and makes it unlawful to construct any water obstruction or to make any change or additional thereto except in accordance with the conditions or restrictions of such consent or permit, and such rules and regulations as may be prescribed by the Commission. Section 7 makes it a misdemeanor to do any act or thing contrary to the provisions of the Act or to violate or fail to comply with any order of the Board, and Section 8 provides for the issuance of injunctions to enforce compliance with, or to restrain violations of, any order or notice of the commission made pursuant to the Act, or to restrain the violation of any of the provisions of the Act.'

In Archbishop O'Hara's Appeal, 389 Pa. 35, 47, 48, 131 A.2d 587, 593, we have recently said: 'A fundamental principle of our constitutional law is that the power conferred upon a legislature to make laws cannot be delegated by that branch of government to any other body or authority. Cooley, Constitutional Limitations, p. 224 (8th ed.); United States v. Shreveport Grain & Elevator Co., 287 U.S. 77, 53 S.Ct. 42, 77 L.Ed. 175; In re Baldwin Township's Annexation, 305 Pa. 490, 158 A. 272; American Baseball Club of Philadelphia v. Philadelphia, 312 Pa. 311, 167 A. 891, 92 A.L.R. 386; Holgate Bros. Co. v. Bashore, 331 Pa. 255, 200 A. 672, 117 A.L.R. 639; Bell Telephone Co. of Pennsylvania v. Driscoll, 343 Pa. 109, 21 A.2d 912; Kellerman v. Philadelphia, 139 Pa.Super. 569, 13 A.2d 84. While the legislature cannot delegate the power to make a law, it may, where necessary, confer authority and discretion in an administrative tribunal in connection with the execution of the law, Belovsky v. Redevelopment Authority, 357 Pa. 329, 342, 343, 54 A.2d 277, 172 A.L.R. 953. However, such authority and discretion may not be conferred by the legislature except under the limitations of a prescribed standard or standards under which the authority and discretion are to be exercised. United States v. Chicago, Milwaukee, St. Paul & Pacific Railroad, 282 U.S. 311, 51 S.Ct. 159, 75 L.Ed. 359; Panama Refining Co. v. Ryan, 293 U.S. 388, 55 S.Ct. 241, 79 L.Ed. 446; Taylor v. Moore, supra [303 Pa. 469, 154 A. 799]; Holgate Bros. Co. v. Bashore, supra [331 Pa. 255, 200 A. 672, 117 A.L.R. 639]; Devereux Foundation, Inc. Zoning Case, supra [351 Pa. 478, 41 A.2d 744]; Root v. Erie Zoning Board, 180 Pa.Super. 38, 42, 118 A. 297.' ³ The Court below was of the opinion that the Water Obstructions Act lacked definite standards, policies and limitations by which the action of the Board could be governed and, in the absence of such standards, policies or limitations, the statute constituted an unconstitutional delegation of legislative power to the Board.

In passing upon the validity of this statute, certain well-established principles are pertinent: (1) 'Nothing but a clear violation of the Constitution will justify the judiciary in nullifying a legislative enactment. Every presumption must be indulged in its favor, and one who claims an Act is unconstitutional has a very heavy burden of proof [citing cases]'. Loomis v. Philadelphia School District Board, 376 Pa. 428, 431, 103 A.2d 769, 770; (2) the fact that this statute has remained on the statute books unassailed for many years does not in itself justify a Court in reaching an interpretation favorable to its validity for 'old age cannot give it life'. Kucker v. Sunlight Oil & Gas Company, 230 Pa. 528, 533, 79 A. 747, 749; Flynn v. Horst, 356 Pa. 20, 30, 51 A.2d 54; (3) if the statutory language be of doubtful import the statute in its entirety and all its provisions must be considered. United States ex rel. Attorney General v. Delaware & Hudson Company, 213 U.S. 366, 29 S.Ct. 527, 53 L.Ed. 836; Archbishop O'Hara's Appeal, supra; (4) in determining a statute's validity we must look to its purpose, its nature and its reasonable effect; we are not limited to the mere letter of the law but must look beyond the letter to determine its true purpose and effect.

The expressed purpose of the 'Water Obstructions Act' set forth in its title, is 'the regulation of dams, or other structures or obstructions * * * in, along, across, or projecting into all streams and bodies of water wholly or partly within, or forming part of the boundaries of, this Commonwealth'. Section 2 prohibits the construction of a dam or the addition to or alteration of an existing dam without the Board's consent, the Board consisting of the Secretary of the Department of Forests and Waters, the Secretary of the Department of Health, the Executive Director of the Fish Commission, a member of the Public Utility Commission, and an engineer. For the guidance of this Board Section 3 provides that 'maps, plans, profiles, and specifications of such water obstructions' and 'such other data and information as the [Board] may require' must be given to the Board by the petitioner for the permit. Section 4 authorizes the Board to make regulations in regard to the construction of, additions to or alterations of any water obstruction while Section 5 authorizes the Board to examine water obstructions and provides that if it 'shall determine that such dam or water obstruction is unsafe or needs repair * * * or for any reason is derogatory to the regimen of the streams' ⁴ the Board can force the unsafe conditions to be remedied. (Emphasis supplied.) Section 6 provides 'If the condition of any dam or other water obstruction be so dangerous to the public safety as not to permit of the giving of the notice * * * to remove such dangerous condition' the Board is empowered to remedy the situation itself and place the costs on the owners of the water obstruction. (Emphasis supplied.) Section 7 provides penalties for violations of the statute; Section 8 gives the Board recourse to the courts for the enforcement of its decisions; Section 9 excepts from the statute's operation a dam or obstruction on a purely private stream having a drainage area of less than one-half square mile that 'cannot in anyway imperil life or property located below or above such dam or obstruction'. (Emphasis supplied.)

In concluding that the statute was invalid, the Court below stated: 'There is nothing in the Act to guide the Board in its determination of whether consent should be given, or what conditions, regulations or restrictions should be imposed in granting consent. Not even the purpose of the Act is indicated. Was it intended to protect the lives of upper and lower riparian owners, or to protect the fish life in the stream, or to conserve the water of the stream or was there some...