#### Penn Public Service Corporation, Appellant, *v.*Public Service Commission.

*Public Service Convpamy Law-rPublic. Service Commission*— Elec*tric light companies*— Acquisition *by borough.*

In an application before The Public Service Commission for a certificate of public convenience, evidencing the approval of the purchase of one electric light company "by another larger electric companyj it appeared that, prior to the application, the Borough in which the vendor company operated had declared its intention to acquire the company, and had made an application for a certificate of public convenience approving the acquisition. The Public Service Commission refused the certificate of public convenience for the purchase of the plant by the larger company and granted a certificate of public convenience approving the acquisition by the Borough.

Where there is ample evidence to support the conclusions of The Public Service Commission its order will be sustained.

As the presumptions are in favor of the action of the Commission and the burden of proof is on the appellant to show clearly the unlawfulness or unreasonableness of the order, it was incumbent on the appellant to repel the commission’s findings by sufficient evidence. It is not sufficient to urge that it would be greatly to the advantage of the borough to have a supply of electricity from an organization ás large as the appellant. The Borough is preferred under the statutes relating to the subject in the matter of the supply of electricity, and it is under ordinary circumstances reasonable therefore that the wish of the citizens with respect thereto should be regarded.

Where the evidence established that the capital expenditure in connection with the acquisition of the plant by the larger electric plant would be considerable, and that the cost of the purchase would probably be reflected in the rates, there is ample justification for the decision of the commission approving the acquisition of the plant by the borough.

Argued April 16, 1926.

Appeal No. 218, April T., 1926, by Penn Public Service Corporation from oTder of tbe Public Service ’Commission of the Commonwealth of Pennsylvania, Application Pocket 11,886, refusing to grant the application of Penn Public Service Corporation for a certificate of public convenience evidencing the purchase of the Solar Electric Company.

Before Porter, P. J., Henderson, Trexeer, Linn, Gawthrop and Cunningham, JJ.

Affirmed.

*370Application for certificate of public convenience evidencing the approval of the purchase by Penn Service Corporation of the capital stock of the Solar Electric Company.

The facts are stated in the opinion of the Superior Court.

The Public Service Commission refused to grant the certificate. Applicant appealed.

*Error assigned,*among others, was the order of the Commission.

*David I. McCahill,*of *McCahill, McCahill & Tabor,*for appellant.

' *Frank M. Hunter,*Special Counsel, *John Fox Weiss,*Assistant Counsel, and *W. T. Manning,*Legal Assistant, for the Public Service Commission.

*W. N. Conrad,*for intervening appellee.

July 8, 1926:

Opinion by

Henderson, J.,

This is an appeal of the Penn Public Service Corporation from the order of the Public Service Commission refusing to grant a certificate of public convenience to the appellant evidencing its approval of the purchase by that corporation of all the capital stock of the Solar Electric Company, a public service company, engaged in the production and supply of electric energy in the Borough of Brookville and vicinity. Prior to this application the Borough of Brookville had declared its intention to acquire the plant and works of the Solar Electric Company, and an application was presented to the Public Service Commission by the Borough for ia certificate of public convenience approving the acquisition of the plant and works of the said electric company. The Public Service Commis*371sion refused a certificate of public convenience on tbe application of the Penn Public Service Corporation and granted a certificate of public convenience to tbe Borough of Brookville. Appeals were taken by tbe Penn Public Service Corporation and by tbe Solar Electric Company. These cases were argued together and in an opinion this day filed in tbe appeal of tbe Solar Electric Company, No. 121, April Term, 1926, all material questions presented in the present appeal were considered.. As tbe proceeding instituted by tbe Penn Public Service Corporation was necessarily antagonistic to that brought forward by tbe Borough of Brook-ville, the order of tbe Public Service Commission in favor of tbe Borough was conclusive against the appellant unless tbe order was contrary to law or unreasonable. Under tbe evidence we think it cannot be seriously contended that tbe appellant bad a legal right to a certificate of public convenience. The findings of tbe Public Service Commission make it clear that tbe project of tbe. appellant to buy tbe electric company and merge it with tbe Penn Public Service Corporation is not advantageous to tbe Borough. The agreement between tbe electric company and tbe Penn Public Service Corporation calledfor tbe payment by tbe latter of $150,000 for tbe property and franchises of tbe electric company. This tbe commission found was greatly in excess of the value of tbe electric *company;*moreover tbe plan made necessary tbe erection of a power line about 22 miles long from tbe nearest point in tbe P'enn Public Service Corporation’s system. This it was estimated would cost $88,000 and there were estimated additional costs amounting to about $6,000. Assuming that the work could be done at this cost, tbe investment of the Penn Public Service Corporation would amount to nearly $250,000, a sum greatly exceeding tbe value of tbe present plant. As tbe presumptions are in favor of tbe action of the commission and tbe burden of proof *372is on the appellant to show clearly the unlawfulness or unreasonableness of the order, it was incumbent on the appellant to repel the commission’s findings by sufficient evidence, iand this has not been accomplished. It is not sufficient to urge that it would be greatly to the advantage of the Borough to have a supply of electricity from an organization as large as the appellant. It is not a benevolent institution iand is operated for the advantage of its stockholders, and evidently anticipates a profit from the proposed enlargement of its business. We regard it as a not unreasonable conclusion of the commission that the investment of $250,000 of new capital would call for a return of corresponding dividends, and it may be reasonably assumed that the cost of such dividends would fall finally on the inhabitants of the Borough and the immediate vicinity; at least there is no evidence that they would be favored in that respect. The Borough is preferred under the statutes relating to the subject in the matter of the supply of electricity, and it is under ordinary circumstances reasonable therefore that the wish of the citizens with respect thereto should be regarded. Much of the discussion in the appellant’s argument is beyond the issue as disclosed in the pleadings. The subject of the capacity of the commission to dispose of the case has been considered in the appeal of the Solar Electric Company above referred to. No other question is presented which needs consideration.

The order of the Public Service Commission is therefore sustained.