Metzger v. Borough of Beaver Falls

Opinion by Mr. Justice Dean, This appeal was argued first, June 4, 1895, in the Middle District; before the decision was handed down, we had notice by application to take original jurisdiction of the case of White v. City of Meadville, 177 Pa. 643, argued at Pittsburg, October 7,1895, involving some of same questions; decision was therefore withheld until after the argument of that case; then followed an application for reargument of both cases ; this was granted, and reargument had May 6, 1896. We have handed down this day the opinion in White et al. v. City of Meadville, and on the main question it rules this case against defendants. The learned judge of the court below cited and relied on Howard’s Appeal, 162 Pa. 374, as ruling the question before him. In White v. Meadville, we, after a full consideration, have concluded the decision in that case should not be followed. The question at issue, on the answer to which the case turns, appears from the following passage in the opinion of the court below: “Nothing need be said here on the controverted questions as to the wisdom of constructing waterworks; the sufficiency and character of the present water supply, the effect of the proposed new works on the business of the Union Water Company, and whether tire company has failed in the performance of its duty. With these and like matters the court has nothing to do in the present proceeding. I cannot control or strike down the power and discretion vested in municipal authorities. The right of the borough of Beaver Falls to construct, own and operate waterworks is undoubted. Whether or not this right shall be exercised is a matter to be determined by the corporate authorities; and unless they have clearly violated the laws prescribing the manner in which their power shall be [5] exerted, I cannot interfere : Howard’s Appeal, 162 Pa. 374.” To this, defendant excepts, and alleges: “ The borough has no power in this behalf beyond what is delegated to it by the commonwealth. Its sole power is, in the language of the statute, ‘to provide a supply of water for the use of the inhabitants.’ This has been done. The inhabitants are supplied by the authority executed by other means. The duty of the borough has been thus executed. Its power has been supplanted and suspended. It has no authority to erect waterworks at the expense of taxpayers while such other means are operative.” We have decided in White v. City of Meadville, on a construction of the acts of assembly, the legislature never did intend to commit the duty of supplying water to a municipality to two different agencies, both in operation at the same time. The borough had authority “ to provide a supply of water for the use of the inhabitants.” This supply was provided by the Union Water Company, subject to such regulations in regard to streets, roads and grades as the borough imposed. The borough did not attempt to construct works until yeans after the water company had laid its mains, and the public had been served. The rights of the water company vested by consent of the municipality and its contract to supply water for public purposes. The rights of the company are fixed by the act of April 29,1874, under which it came into existence, and so are its obligations. If, as alleged, it fails to furnish a sufficient supply of pure water, the courts are open to any complainant: Brymer v. Butler county, 172 Pa. 489. After twenty years the borough has power to purchase the works at a price not exorbitant. We concur with the court below in its finding of facts, but not in its conclusions of law, as already noticed. Therefore, the decree is reversed, and it is directed that an injunction issue restraining the borough of Beaver Falls and its officers from creating the proposed indebtedness of $123,000 for the construction of waterworks or any part thereof, and from issuing bonds to secure the same, or any part thereof. Further, that said defendants be enjoined from executing any contract for the construction of the proposed waterworks. Further, that the said borough and its officers be restrained from pass [6] ing any ordinance, or doing any other act, matter or thing, in furtherance of its purpose to increase its indebtedness, or erect said waterworks as aforesaid. It is further directed that defendants pay the costs of these proceedings.