Opinion
March, 1915.
Davison Underhill (Alfred T. Davison, of counsel), for relator.
Frank L. Polk, Corporation Counsel (Edward S. Malone, of counsel), for respondents.
All franchises of public service corporations are subject to regulation in the interests of the public. The right to lay gas mains in the streets is a franchise granted for the service of the public. Many other franchises to use the public streets exist, and, in addition, the subsurface is used for other municipal purposes. Under these circumstances we should expect that the Legislature would delegate to some municipal agency the power to so control the exercise of the franchise that the mains and pipes may be laid in this mesh of agencies, using the subsurface of the streets with due regard to the safety of the public. We find that it has given this power to the department of water supply, gas and electricity, hereinafter called the department, using the words "cognizance and control of the use and transmission of gas," words which have long been used and have been interpreted by the courts as conferring full power of regulation and control. The grant of this power imposes the duty of performance and carries with it, by necessary implication, the right to select effective means therefor. The department is not granted the power to issue permits to open the public streets to lay gas mains and pipes. This power rests with the borough president. The department has requested the borough president not to issue the permit until the relator has agreed to submit to its control, pay for the necessary inspectors, file maps and plans with the department, indemnify the city against loss through its negligence, and agree to change and relocate its mains if required. The relator refuses to submit to these conditions imposed by the department, the borough president refuses to issue the permit, and the relator asks for a mandamus compelling him so to do.
The borough president cannot nullify the franchise by refusing his permit to open the streets. He can impose reasonable conditions to granting it, and I see no reason why he may not require submission to the control of the department in which the power of cognizance and control is vested by law. The department in terms requires the relator to accept the conditions of a "permit to open the streets." It is not really a "permit," for it permits nothing, and much of the argument at the bar is wasted on the false issue whether the department could issue a "permit." The department cannot authorize the relator to open the streets: this can be done only by the borough president. But I think that the borough president is justified in withholding his permit until the relator accepts the terms and conditions prescribed by the department, not under which it is to open the street, but under which it is to lay the pipes when the street is opened under the permit of the borough president.
Motion denied.