Shryock v. North Braddock Borough

Opinion by Rice, P. J., This is an appeal by the borough of North Braddock from the judgment of the court of common pleas reversing, upon certiorari, the judgment of the burgess of the borough in a summary proceeding instituted against the appellees for a violation of a borough ordinance relating to the opening of streets. The appellees were employees-of the ■ Pennsylvania Water Company and were acting under its direction in the opening of the street complained of. The Pennsylvania Water Company is a company chartered under the geiieral laws of the commonwealth relating to water companies, with power to enter upon and occupy the streets of the borough for the purposes of its charter, subject to such regulations adopted by the borough as are referred to or comprehended in the statutes relating to water companies. See the Mountain Water Company v. Borough of Emaus, ante, p. 179. While many of the technical formalities of summary convictions have long since been dispensed with, there are some essentials which still exist and must appear upon the record. It is still necessary that a summary conviction shall contain a finding that a specific act has been' performed by the defendant, and that it shall describe or define it in such a way as to individuate it and show [515] that it falls within an unlawful class of acts: Com. v. Nesbit, 34 Pa. 398; Reid v. Wood, 102 Pa. 312; Com. v. Davison, 11 Pa. Superior Ct. 130; Com. v. Cannon, 32 Pa. Superior Ct. 78. Whether the act complained of was an unlawful act depends upon the validity of certain provisions of the ordinance referred to. Section 1 provides that it shall be unlawful for any person other than those acting by authority of the borough to open, dig or in any manner disturb any highway, street or alley of the borough without making application to the borough secretary or to council. Section 2 designates three instances where application shall be made to the borough secretary and permits shall be issued by him. They are when the highway is to be opened or dug up, (1) for the purpose of making connection with a sewer; (2) to lay or connect a water or gas pipe with the main; (3) to make repairs to such pipe or connection. Section 5 is .as follows: “No highway, street or alley of the borough shall be opened, at any time, for any purpose other than the purposes stated in section 2 of this ordinance, nor shall any of said highways, streets or alleys be opened, for any purpose, between the 15th day of November and the 1st day of April, without the permission of council.” It is not, and could not be successfully contended that the ordinance is invalid so far as relates to the three purposes mentioned in sec. 2. The permit issues of course, and the regulations relative to obtaining the same and the course to be. pursued under it are reasonable. If, therefore, the record and the findings of the magistrate showed that the defendants opened the street for either one of these three purposes, without first obtaining a permit, the conviction could be sustained. In that case it would be no answer to say that the secretary refused to give the permit. The remedy of the water company for the refusal was not by taking the law into its own hands, but by appropriate proceeding to compel the secretary to perform his duty. But the record of the magistrate does not show that the street was opened for either of these three purposes. It [516] may have been for some other necessary purpose, as, for example, to disconnect a service pipe at the ferrule. If this was an unlawful act it was because, and only because, it was prohibited by the fifth section of the ordinance, either absolutely, as the words of the ordinance might be construed, or unless the permission of council were obtained, which seems to be the more reasonable construction. If the former construction be adopted the ordinance would be prohibitory of the corporation’s use of the streets for many necessary purposes, and it could scarcely be contended that in that view it could be sustained. But if we adopt the latter construction, the question arises whether a provision that' the streets shall not be disturbed for any but the three purposes mentioned, Avithout the permission of council, is a reasonable and valid borough regulation as applied to water companies having the powers of the company in question. Does not such an ordinance assume the right of council to grant or refuse permission in its discretion? And, if it does, is it not a usurpation of power not possessed by borough councils as against such a company? Both of the latter questions must be answered in the affirmative. It is quite apparent that in adopting the ordinance the borough did not intend to vest a merely ministerial power in the council, but did intend that the question, whether any proposed opening of the streets for any purpose except those specified in sec. 2, should be decided by the council in its legislative capacity and according to its discretion and judgment. It is freely conceded by counsel for the appellees that the borough has full power to make all reasonable regulations for the opening of streets, such as, where the.pipes may be laid, the length of ditch to be opened at any one time, the guarding of trenches, the replacing of the earth, and repairing of the street; and it is not denied that it may even prohibit the opening of streets during certain periods of the year, when such opening would endanger the public health or welfare. Counsel say it has full poAver to make proper and reasonable regulations as to all matters relat [517] ing to the protection and convenience of public travel and the protection of the life, health and property of its citizens; but they contend such regulations must be set forth in the ordinance, they must be general and uniform in character, and they must be reasonable. This view we think is the correct one. A water company chartered under the general laws of the commonwealth is not compelled to obtain the consent of the borough council before it may lay its pipes in the streets or open the streets in order to obtain access to them for a necessary purpose, and the borough exceeded its powers when, as to such company, it undertook to make the exercise of the chartered rights of the company dependent upon the consent of its council. In the case of Lansdowne Borough v. Springfield Water Co., 16 Pa. Superior Ct. 490, we said: “If the borough were asserting the right to grant or refuse permission to the defendant to make excavations for the purpose of repairing its mains or making connections therewith, this would be destructive of the franchises conferred by the state by virtue of its paramount authority over the highways, and could not be sustained.” The same is equally true of the assertion of a right to grant or refuse permission to make the necessary excavations in order to carry out the purposes for which the corporation was created. We hold that the record of the conviction cannot be sustained, because it fails to show that the act complained of was contrary to the general law of the commonwealth or to a valid provision of the ordinance in question. The judgment is affirmed.