Commonwealth of Pennsylvania Water & Power Resources Board v. Green Spring Co.

Opinion by

Mr. Justice Benjamin R. Jones,

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 Spring Company, Ine. — a fish hatchery in Cumberland County — without the Board’s consent or permit had increased by seventeen 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 Spring 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 Spring Company, Inc. filed preliminary objections raising, inter alia, the question of the constitutionality of the “Water Obstruction 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 Obstruction 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 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 Obstruction Act”: “The Act of June 25, 1913, P. L. 555, (32 PS §682) known as the Water Obstruction Act, in Seetion 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 addition 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, 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’s Constitutional Limitations, p. 224 (8th ed.); United States v. Shreveport Grain & Elevator Co., 287 U. S. 77, 53 S. Ct. 42; Baldwin Township Annexation Case, 305 Pa. 490, 158 A. 272; American Baseball Club v. Phila., 312 Pa. 311, 167 A. 891; Holgate Bros. Co. v. Bashore, 331 Pa. 255, 200 A. 672; Bell Telephone Co. of Penna. v. Driscoll, 343 Pa. 109, 21 A. 2d 912; Kellerman v. Philadelphia, 139 Pa. Superior Ct. 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. 277. 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: U. S. v. Chicago, Milwaukee, St. Paul & Pacific Railroad, 282 U. S. 311, 51 S. Ct. 159; Panama Refining Co. v. Ryan, 293 U. S. 388, 55 S. Ct. 241; Taylor v. Moore, supra; Holgate Bros. v. Bashore, supra; Devereux Foundation, Inc. Zoning Case, supra; Root v. Erie Zoning Board, 180 Pa. Superior Ct. 38, 42, 118 A. 297.”3

The Court below was of the opinion that the Water Obstruction 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; (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; Flynn et al. v. Horst et al., 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: U. S. ex rel. Attorney General v. Delaware and Hudson Company, 213 U. S. 366, 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 Obstruction 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 boundary 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 obstruction” 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 stream”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 any way 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 and property 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 other purpose? Even a mere statement of the object sought to be obtained by the statute would give the Board some basis for its determination, but in this statute there is no guide whatever”. With these conclusions of the learned Court below we cannot agree.

The statute’s title, as amended, is declarative of its object: the regulation of dams and other obstructions and of any changes that in any manner diminish the course, current or cross-section of the streams and rivers of the Commonwealth. Why was such regulation necessary? The answer is to be found not in any single section of the statute, but from an examination of the statute in its entirety. Sections 5 and 6 of the original statute emphasize the safety of the stream or river obstruction from the standpoint of danger to the lives or property of the public as the criterion by which the obstruction shall be evaluated, while the 1937 amendment emphasizes the additional factor of a change in the- natural course of the stream which change might cause loss or damage to riparian owners. ■ Particularly significant and important is the fact that, while the statute purports to regulate all the Commonwealth’s streams and rivers (including private streams), yet certain small and “purely private” streams are excepted from such regulations only if the obstruction therein “cannot in any way imperil life or property above or below” such obstruction. The legislative purpose is thus made clear; the test as to inclusion of a particular obstruction within the regulatory power of the Board is whether it presents a potentiality of danger to life or property, or both, even though the stream be small and “purely private”.

The unsupervised and unregulated placement of obstructions, such as dams, in streams and rivers carries with it extremely great potentialities of danger to the lives of persons and properties within the area: even greater is the. potentiality of danger, in unsupervised and unregulated maintenance of such dams and obstructions. Prior to the passage of.this legislation floods had given grim evidence of such potentialities.5 Both the statutory language and the circumstances surrounding its passage indicate the- legislative purpose and tvhy the regulation of water obstructions was necessary.

With thousands of streams and rivers within the Commonwealth, each presenting its particular problem, it would have been impossible for .the legislature to provide a hard and fast rule- to govern each situation. Particularly apposite is- the language of the Superior Court in Weinstein Liquor License Case, 159 Pa. Superior Ct. 437, 441, 48 A. 2d 1: “It was not only impractical but almost impossible for the legislature to anticipate all the various situations that might arise in citation cases and provide therefor by specific standards or to classify. them”. The only practical approach was that which the legislature herein adopted : in the exercise of its police power, to provide for the regulation of all water obstructions, existing and in futuro, in the Commonwealth’s streams and rivers, setting up a general standard or criterion both for the placement and maintenance of such obstruction and to vest in an administrative agency the power to effect such regulation by the determination of the facts in each particular case and the promulgation of rules, all in accordance with the underlying purpose of the statute and the general standard or regulation as promulgated therein. The Board is not granted the power to determine what the law should be, but simply to apply the latv as enunciated by the legislative body to particular circumstances. The Board’s authority to act is not subject to its whim or caprice;- it is circumscribed by a definite standard. Under this statute the Board must consider the construction of a new obstruction, the addition to or alteration of an existing obstruction and the maintenance of an existing obstruction from two points of vieAv: (1) does the proposed construction, the alteration of or addition to an existing obstruction or the maintenance of an existing obstruction create a situation involving a potentiality of danger either to life or property and (2) does the existing obstruction or will the neAV obstruction change or divert the natural course of the stream or river? Such standards are neither vague nor indefinite; they are definite yardsticks which the Board must utilize in evaluating each particular existing or proposed water obstruction. The existence of such standards precludes arbitrary action on the part of the Board and any refusal to issue a permit for the construction of a neAV, or the addition to or alteration of an existing, obstruction must bear a reasonable relation to the object of the legislative mandate. Legislative standards such as herein presented have been sustained as valid by this and other Courts: Commonwealth v. Emmers, 221 Pa. 298, 305, 70 A. 762 ;6 Weaverland Independent School District Case, 378 Pa. 449, 106 A. 2d 812; Weinstein Liquor License Case, 159 Pa. Superior Ct. 437, 48 A. 2d 1; U. S. v. Grimaud, 220 U. S. 506, 55 L. Ed. 563; Louisville Bridge Co. v. U. S., 242 U. S. 409, 61 L. Ed. 395; Conway v. New Hampshire Water Resources Board, 89 N. H. 346, 199 A. 83; Jersey City v. State Water Policy Commission, 118 N.J.L. 72, 191 A. 456.

We said in Sharpless v. Mayor of Philadelphia, 21 Pa. 147, 164, and have consistently so held: “We can declare an Act of Assembly void only when it violates the constitution clearly, palpably, plainly; and in such manner as to leave no doubt or hesitation in our minds”.7 Not only does the instant statute not present a clear, palpable and plain violation of the Constitution, but on the contrary a reading of the statute in its entirety is convincing of its validity. That the regulation of the stream and river obstructions, existing and in futuro, is within the police power of the Commonwealth is conceded. That the legislature has not delegated to this Board law-making power is clear. That the Board, in the exercise of the regulatory power, is circumscribed by definite standards is evident from the language of the statute in its entirety. The probability of loss of life or property which inheres in the danger of an improperly constructed or maintained obstruction and the probability of damage arising from the change or diversion of a water course by an improper construction or an obstruction are definite standards by which the legislature has circumscribed the orbit of the Board’s authority.

Order reversed and the matter remanded to the Court of Common Pleas of Cumberland County for further proceedings not inconsistent with this opinion. Costs to abide the event.8

1 An administrative Board of tlie Department of Forests and Waters, an administrative department of tlie Commonwealth.

2 Act of June 25, 1912, P. L. 555, as amended by the Act of May 6, 1927, P. L. 559, 22 PS §681 et seq.

3 The following standards have been held adequate: “just and reasonable” (Tagg Bros. & Moorhead v. United States, 280 U. S. 420, 50 S. Ct. 220); “public interest” (New York Central Securities Corp. v. U. S., 287 U. S. 12, 53 S. Ct. 45); “public convenience”, “interest” or “necessity” (Federal Radio Commission v. Nelson Bros. Bond & Mortgage Co., 289 U. S. 266, 53 S. Ct. 627). See also: Breinig v. Allegheny County, 332 Pa. 474, 2 A. 2d 842; Annenberg v. Roberts et al., 333 Pa. 203, 2 A. 2d 612; Bell Telephone Co. of Penna. v. Driscoll, supra; Marshall Impeachment Case, 363 Pa. 326, 69 A. 2d 619; Kellerman v. City of Philadelphia, supra; Commonwealth. v. Franklin, 172 Pa. Superior Ct. 152, 92 A. 2d 272.

4 “Regimen” is the “regular course of any continuous natural process; as, the regimen of a river”: Merriam-Webster New International Dictionary (2nd ed.) p. 2097.

5 Mindful of both the Johnstown and Austin floods, the then Governor urged both the Senate and the House of Representatives in a message in 1913 to adopt the regulatory legislation embodied in the Act of 1913, supra: Pennsylvania Senate Journal, Part I, 1913, pp. 26, 27.

6 The Court below pointed out that the statute in the Emmers case, unlike the present statute, provided for an appeal from the' action of the health commissioner to the courts. Even without such ■provision, as in the present statute, judicial review of (he administrative agency’s or official’s action is open to an aggrieved party: Dauphin Deposit Trust Co. v. Myers, 38S Pa. 444, 460, 130 A. 2d 686, and cases therein cited.

7 Tranter v. Allegheny Co. Authority, 316 Pa. 65, 75, 173 A. 289; Kelly v. Baldwin, 319 Pa. 53, 54, 179 A. 736.

8 Tlie record indicates that, in addition to this equity action, the Commonwealth instituted a criminal action against the defendant and its president for violation Of Section 7 of the Act, that both defendants were indicted and motions to quash the indictments were filed on the ground that the statute was unconstitutional. While the Court below in its opinion stated that its action would determine not only the preliminary objections filed in the equity action but also the motions to quash the indictments in the criminal action, yet in its order the Court simply sustained the preliminary objections in the equity action. The motions to quash the indictments are not before this Court.