Dissenting Opinion by
Mr. Justice Schaffer:Superior to the constitutional provision giving a municipality the right to consent or not to consent to the occupation of its streets by a street railway company, stands the constitutional guarantee of the completeness of the State’s police power. This is what the Scranton Case (268 Pa. 192) determines, as I read it. It is there said that, while the provision requiring the consent of a mtmieipality is clear, it must be read in connection with *490the equally clear third section of article XVI, which declares “the exercise of the police power of the State shall never be abridged or so construed as to permit corporations to conduct their business in such manner as to infringe the equal rights of individuals or the general well-being of the State.” In calling into play its police power, the State exercises one of the highest attributes of sovereignty. , “The very existence of government depends on it......It has been described as the most essential, at times the most insistent, and always one of the least' Imitable of the powers of government”: 6 Ruling Case Law, section 182; District of Columbia v. Brooke, 214 U. S. 138; Noble State Bank v. Haskell, 219 U. S. 104; Eubank v. Richmond, 226 U. S. 137. “The police power is an attribute of sovereignty and exists without any reservation in the Constitution, being founded on the duty of the State to protect its citizens and provide for the safety and good order of society. It corresponds to the right of self-preservation in the individual, and is an essential element in all orderly governments, because necessary to the proper maintenance of the government and the general welfare of the community. On it depends the security of social order, the life and health of the citizen, the comfort of an existence in a thickly populated community, the enjoyment of private and social life, and the beneficial use of property. And it has been said to be the very foundation on which our social system rest's. It has for its object the improvement of social and economic conditions affecting the community at large and collectively with a view of bringing about The greatest good of the greatest number’ ”: 12 Corpus Juris 907, section 415.
In the Scranton Case, we further said: “When the City of Scranton gave its consent to the construction of what is now the Scranton railway, it exercised a constitutional power conferred upon it, but it is conclusively presumed to have known at the time the consenting ordinance was passed that the sovereign police power of the *491State to modify its terms would be supreme whenever the general well-being of the public so required. In exercising the power given it by section 9 of article XVII of the Constitution, the city did so with section 3 of article XVI before it, giving it distinct notice that the police power of the commonwealth was, and would be, controlling. With this knowledge on the part of the municipality at the time it passed the ordinance, it is not now to be heard to complain that the State has struck down its contract or agreement with the street passenger railway company. The State has done nothing of the sort, but has merely enforced a condition written by the law into the ordinance at the time of its passage, that it would at all times be subject to the police power of the Commonwealth.”
If one of the constitutional provisions must yield, that conferring power on the municipality must give way to that fixing sovereignty in the State. It never could have been intended, when the Constitution was framed and adopted, that the municipalities, creatures of the State, should have powers hamstringing it when it set out to exercise sovereignty. It was pointed out in the Scranton Case, that, in the prior case of Allegheny v. Millville, etc., St. Ry. Co., 159 Pa. 411, which held a street railway company cannot avail itself of consent given to it by a municipality to construct its railway, if it fails to perform the condition upon which the consent was given, that the question there “was solely between the City of Allegheny and the railway company; the Commonwealth was not a party to it.” In the case now before us, as in the Scranton Case, the Commonwealth acting through the agency created by it to speak in the public interest, the Public Service Commission, is the moving party in the litigation. Fares, facilities and service of public utilities are so intertwined that that which acts as a clog on one of them must affect the others. If a municipality cannot, in a consent-ordinance, fix the rate of fare, so as in the opinion of the State to interfere with *492the “well-being of the State,” as we said it could not, and if the State, armed with the police power, can strike down a fare-fixing consent-ordinance, I fail to see why, in the exercise of the same power, the State may not strike down other conditions in such an ordinance, — the paving requirement in the one under consideration, — the effect of which is, to devote revenues of the company which should go to the reduction of fares, or the betterment of facilities or service, not to the advantage of the travel-ling public, but of those property owners who front the highway.
The fact, stressed in the majority opinion, that the Public Service Company Act grants no special authority to the commission to make an order varying the terms of a consent-ordinance such as the one in question, makes no difference, as I view the situation, if the exactions, loaded by the municipality, the State’s agent, on the company, are bound to be reflected in higher fares or lowered service, as the testimony establishes and the commission finds they will be.
If the State’s police power is palsied by the municipal ordinance in the case in hand, it would be equally so, where such an ordinance, because of changed conditions and additional cost of paving, should deny the right of the utility to operate at all, because it could not meet the exaction and live. If the police power cannot relieve against such a situation for “the general well-being of the State” as determined by the agency created to guard and protect that general well-being and to declare the State’s public policy (Fogelsville etc. Co. v. Penna. etc. Co., 271 Pa. 237), then the State’s police power is not supreme and one of its creations outmasters it in potency. In the Scranton Case, we expressly said “a municipality may not annex such terms to its consent as will deprive the Commonwealth of its inherent police power to see that a street passenger railway company is not prevented from serving the public by the municipality’s enforcement of conditions in a consenting ordinance that have *493become impossible of performance......When such situation arises, as it has arisen and will arise again, there must be relief somewhere to the public, and it lies in the police power of the State, which is never to be abridged nor bartered away.” This forceful statement of principle by former Chief Justice Brown should in my opinion rule the case now before us. We are not dealing with a contract between the traction company and a private individual, such as for the purchase of cars or the like, which could not be abrogated because of the inhibition of the federal Constitution, but a contract made with an agent of the State, which certainly is within the State’s control when it exercises its sovereign police power. So viewing the important question submitted to us for decision, I would hold that the Public Service Commission has power to relieve the street railway company from the paving burdens placed upon it by the ordinance, and therefore, feel compelled to express my dissent from the conclusion of the majority of the court.