#### Pennsylvania Power Company, Appellant, *v.*Public Service Commission.

*Corporations*— Water *companies*— Application *for charter*— Req*uisites of*— Act *of June 7, 1907, P. L. 1¡55*— Public *Service Commission*— Jurisdiction.

1. Under tbe Act of -Tune 7,1907, P. L. 455, which requires that •an application for a charter for a water company shall state the name “of the river, stream, or other body of water from which it is *212propo_sed to take or use water, or water power, and as near as may be tbe points on said river, stream or other body of water between which said water, or water power is proposed to be taken,” the precise location of a dam or dams proposed to be built need not be set forth. ,

2. If an application for a charter for a water company sets forth the name of a stream, and states that it is proposed to construct a dam or dams across the stream located between two points designated, and such application has been approved by the water supply commission after the consideration of plans showing a certain number of dams at designated points, the Public Service Commission may subsequently, in passing upon the incorporation of the company, approve of the application although an amended plan is produced to them showing a smaller number of dams, and that one of the proposed dams would be constructed at a less height than that shown on the original plan.

3. The Public Service Commission is not invested with authority to regulate the erection of dams or the development of the water power resources'of the State; that is a subject over which the Water Supply Commission has jurisdiction, and such commission may pass upon the. final plans after the incorporation of the company, and when its work is undertaken.

4. An appellate court will not reverse an order approving the incorporation of a water company where it appears that the application had been approved by the water supply commission, that the Public Service Commission had heard evidence relating to the question in controversy, that elaborate arguments were presented, and that the action of the Water Supply Commission was considered, and such presentation of the facts made as enabled the Public Service Commission to act intelligently on the subject.

5. An order of the Public Service Commission approving an 'application for a charter of a water company will not be reversed at the instance of an older company supplying power merely because the new company would be a competitor in a field theretofore exclusively occupied by the older company. It is not a matter of public policy to prohibit competition.

6. The question of intrusion is a subject for consideration by the Public Service Commission when the new company shall in the development of its business propose to 'supply power.

*T.*An order of the Public Service Commission approving the incorporation of a water company will not be reversed at the instance of intervening landowners on the allegation that* the commission did not open the hearing for the purpose of taking testimony in support of the averments in the petition of the intervenors,. where it appears that notice of the hearing had been given, that the *213interveuors did not appear until the testimony bad been concluded, and that the matters alleged had been brought to the attention of the. commission, and considered by it.

8. The fact that notice of an application of a water company for a charter does not conform to the rule prescribed by the Public Service Commission, is not a ground for reversing an order approving the application, where it appears that the commission held that the notice was sufficient, and that the parties in interest had been heard, and all the questions raised had been considered.

9. The notice prescribed by the commission was adopted to secure uniformity in the procedure for a charter merely, and has not the effect of positive law.

Argued March 6, 1918.

Appeals, Nos. 6 and 7, May T., 1918, by Pennsylvania Power Company, protestant, from order of Superior Court, March T., 1917, No. 9, affirming order of the Public Service Commission, approving application of charter in case of Pennsylvania Power Company v. The Public Service Commission of the Commonwealth of Pennsylvania.

Before Brown, C. J., Potter, Moschzisker, Frazer and Walling, JJ.

Appeal from Superior Court.

Application for approval of charter.

From the record it appeared that the material portions of the application were as follows:

“1st. The name of the proposed corporation is Connoquenessing Power Company.

“2d. Said corporation is formed for the purpose of the supply, storage or transportation of water and water power for commercial and manufacturing purposes in the Township of Wayne, County of Lawrence and State of Pennsylvania.

“3d. The name of the river, stream, or other body of water, from which it is proposed to take or use water and water power, and, as near as may be, the points on said river, stream or other body of water between which said water and water power is proposed to be taken, or used, is as follows, viz: It is proposed to take and store the waters of the Connqquenessing creek and its tributaries by means *214of a dam or dams across said stream located between the mouth of said Connoquenessing creek at its junction with the Beaver river and a point at or near the mouth of Slippery Rock creek, a tributary of said Connoquenessing creek in Wayne Township, Lawrence County, Pennsylvania, in a reservoir, extending up and along said Connoquenessing creek to Walker’s Mill, North Sewickley Towhship, Beaver County.

“It is also proposed to take and store the waters of Brush creek, a tributary of the said Connoquenessing creek by the construction of a dam across said Brush creek, at a point two and one-half *(2y2)*miles from its mouth in the Township of Marion, Beaver County, in a reservoir extending up and along said Brush creek for a distance of eleven (11) miles.

“It is also proposed to take and store the waters of the Little Connoquenessing creek, a tributary of the said Connoquenessing creek by the construction of a dam across said Little Connoquenessing creek at a point two (2) miles from its mouth in Jackson Township, Butler County, in a reservoir, extending up and along said Little Connoquenessing creek, for a distance of nine (9) miles.

“4th. The business of said corporation is to be transacted in Pittsburgh, Pennsylvania.”

The original protest of the Pennsylvania Power Company set forth that it was a hydroelectric company existing under and by virtue of the laws of Pennsylvania, and that it had a hydroelectric plant at Ellwood City, Lawrence County, Pennsylvania, where it generated electrical current for sale in the borough, cities and townships of the State. That the service rendered by it was reasonable and adequate, and that the rates were just and reasonable. That the incorporation of the applicant would seriously interfere with the water rights, dams, power houses and facilities of the protestant; and further that the incorporation of the applicant is neither necessary or proper, because the protestant is already *215' willing to offer all tbe prospective customers in this district a reasonable and adequate service at reasonable rates, and tbe incorporation of tbe applicant would only lead to ruinous competition.

Tbe protest ended with a prayer that tbe protestant be allowed to submit evidence of its contention and that no final action be taken until it bad an opportunity to be beard.

Tbe petitioner amended its application, and to tbe amended application tbe protestant filed another protest, wherein all tbe original reasons were reaffirmed. In addition, it was pointed out that tbe rules of practice bad not been complied with, that tbe statement of tbe purpose of tbe company was not in accordance with tbe articles of association as certified by tbe secretary of tbe Commonwealth, and in general that tbe application was so indefinite that tbe commission could not entertain tbe application.

After several bearings tbe commission banded down a pro forma report and order, in which it was stated that tbe Pennsylvania Power Company bad appeared as a protestant and after a bearing tbe commission found and determined that tbe granting of tbe application is proper for tbe service, accommodation, convenience and safety of the public and a certificate of public convenience should issue evidencing tbe approval of tbe incorporation. A certificate of public convenience was issued.

From this report and order and certificate of public convenience tbe Pennsylvania Power Company as a protestant appealed.

Further facts appear in Penna. Power Co. v. Public Service Commission, 66 Pa. Superior Ct. 448, and from tbe following opinion of tbe Superior Court, by Henderson, J.:

This case comes up by appeal of the Pennsylvania Power Company from an order of tbe Public Service Commission approving tbe incorporation of tbe Connoquenessing Power Company, the object of which is *216the supply, storage or transportation of water and water power for commercial and manufacturing purposes in the Township of Wayne in the County of Lawrence. The plan involves the construction of a dam or dams on Connoquenessing creek and the development of electrical power by means of water power as authorized by the Act of July 2, 1895, P. L. 425. The appellant is a power company owning a dam in Connoquenessing creek at Ellwood City, at which it has a power plant for the generation of electricity which it supplies to Ellwood City and other places in the vicinity. E. C. Coleman and six other persons, owners of farms in New Sewickley Township, Beaver County, through whose lands Brush creek, a tributary of Slippery Eock creek, runs were on their petition permitted to intervene as appellant's after the appeal taken by the Pennsylvania Power Company. The complaint of the appellant is that the findings and determinations of the commission are not in conformity to law and are unreasonable and based on incompetent testimony materially affecting the findings and determinations. The lack of conformity to law relied on, it is urged by the appellant, is found in the discrepancy between the project in the articles of association approved by the Water Supply Commission and the plan presented to the Public Service Commission. The promoters of the new company presented their plan to the Water Supply Commission as required by the Act of June 7, 1907, P. L. 455, which body approved of the project after a protracted examination and consideration of the scheme in the course of which there was submitted a plan for the development of the water power of Connoquenessing creek and some of its tributaries according to which it was proposed to work in the practical operation of the company when incorporated. After the approval of the plan by the Water Supply Commission and a more definite consideration of the subject it was deemed advisable to change tbe plan so that a smaller number of dams would be erected and a dam on the creek near its confluence *217with the Beaver -river would be constructed of a less height than was first proposed. This amended plan the appellant contends was a different one in essential respects from that placed before the Water Supply Commission and their application to the Public Service Commission was for the approval of “a more facially valid record of incorporation so they might use it as a cloak to their unlawful actions.” The argument is based in part on the assumption that the application for such a charter should specify the exact rivers, etc., and the “precise points” thereon where the water or water power is to be taken. The first section of the Act of 1907 provides that “no application for a charter for a corporation for a supply of water for the public or for the supply, storage and transportation of water or water power for commercial and manufacturing purposes or for any other water or water power company shall be approved by the governor nor shall letters patent be issued thereon unless said application is first submitted to and has received the approval of a majority of the members of the water supply commission, nor unless such application shall contain in addition to the statements now required to be made the name of the river, stream or other body of water from which it is proposed to take or use water or water power and as near as may be the points on said river, stream or other body of water between which said water or water power is proposed to be taken.” It was manifestly not the intention of the legislature to require that the precise location of a dam should be fixed by law before the incorporation of the company. The location < was only to be stated “as near -as may be.” It is easily seen that it might be ascertained from a test that the particular site selected was not suitable for the support of a dam wall and that a change of place would be necessary. Some leeway was therefore allowed to meet such or perhaps other contingencies. Moreover, the Act of June 25, 1913, P. L. 555, regulates the construction of dams and provides that none shall be erected without the *218consent or permit of the Water Supply Commission in writing- previously obtained. It is further provided that the commission shall have power not only to grant or withhold consent, but may incorporate and make a part of said consent or permit such conditions, regulations and restrictions as may be deemed by it advisable; and no construction of such works shall be undertaken or prosecuted except in accordance with the terms, conditions, regulations and restrictions of such consent or permit and such rules and regulations with regard thereto as may be prescribed by the commission. It will be seen, therefore, that the matter of definite plans for the development of the work of a water power company is subject to the control of the Water Supply Commission which control is to operate after the incorporation of the company and when its work is undertaken. The Public Service Commission in approving the charter did not include the approval of a plan for the development of the company’s business. It is not invested with authority to regulate the erection of dams or the development of the water power resources of the State. That is a subject over which the Water Supply Commission has jurisdiction. The suggested change in the plan as to the number of dams or the height of the dams as made to the Public Service Commission was not a matter of consequence, therefore, nor in any sense illegal. The authoifity of the Water Supply Commission to impose regulations and conditions to be observed by a corporation proposing to develop the water power of a stream is broad as shown by the language of the statute. It is unnecessary to here consider its extent. It has undoubted authority to attach any of the conditions necessary to carry out the purposes of the legislation on the subject with a view to the protection of the rights of the public and of individuals or companies having vested interests.

It is further objected that the order was made without evidence or against the weight of the evidence. An examination of the voluminous record does not lead us *219to that conclusion. The applicants for the charter had the deliberate approval of their plan by the Water Supply Commission. Evidence was taken on the questions involved and the commission ivas aided by the discussion of able counsel on the respective sides. The statute does not declare what evidence shall be sufficient to induce the commission to act; nor does it require that evidence be taken under all circumstances. Some applications may be of such character as to render that course entirely unnecessary. The geographical and topographical conditions involved in such a case may .be within the knowledge of members of the commission and it would be manifestly impracticable to' declare by legislative enactment or judicial decree just how the Public Service Commission should acquire the information which would lead -it to a determination of a particular case. Section 18 of Article V of the statute provides that “when applications shall be made to the commission by any public service company for any approval under any of the provisions of this act......such approval in each and every such case or kind of application shall be given only if and when the said commission shall find or determine that the granting or approval' of such application is necessary or proper for the service, accommodation, convenience or safety of the public.” The nineteenth section of the same article authorizes the commission to hold such hearings and to examine such witnesses and make such inquiries, physical examinations, valuations and investigations as it may deem necessary or proper in enabling it to’ reach a determination. It is sufficient to say with respect to the pending controversy that there was evidence before the commission which was heard, that elaborate arguments were presented; that the action of the Water Supply Commission was considered and such a presentation of the facts made as enabled the Public Service Commission to act intelligently on the subject. It is not the function-of this court on such an *220appeal to reverse the action, taken because a different result might have been reached with, greater propriety.

It is further urged that the granting of the application ought not to be approved because it does not appear in the case that it was proper for the accommodation, convenience or safety of the public, the substance of the appellant’s argument being that there is evidence of adequate service of electrical power in the district proposed to be served by the Connoquenessing Power Company; that the new company will be a competitor in a field theretofore exclusively occupied by the appellant and that such competition is contrary to the policy of the law. With respect to this objection it may be said that it is not a matter of public policy to prohibit competition. It has not been declared by the legislature nor decided by the courts that a public service company entering into business in a particular locality necessarily acquires an exclusive and permanent right tO' prosecution of a business of that kind over an area which it might consider its exclusive territory. Moreover, the matter of intrusion into the appellant’s locality is a subject for consideration by the Public Service Commission when the company shall have reached a stage in the develop-, ment of its business where it proposes to supply power. It was probably apparent to that body there was a large field in that section of the State for the use of electricity and that the increase of the supply would stimulate the development of manufactories. It was not shown in the case and the fact probably does not exist in the Commonwealth, that there is an excess of power for industrial activity. It may be as contended that the cost of the proposed enterprise will be such that the returns from the investment will be unprofitable. That is a matter for future determination, of course, but we think the commission cannot be expected to have a demonstration of the financial possibilities of an enterprise before it gives its approval thereto'. It does not warrant the success of such a project.

*221The complaint.of the intervening appellants is that the Public Service Commission did not open the hearing for the purpose of taking testimony in support of the allegations set forth in their petition to the Public Service Commission and that the commission erred in entering the order of May 10, 1916, approving the incorporation of the water power company. The answer of the Public Service Commission to the petition of the landowners to intervene sets forth that the order of the commission was made “after public hearing held upon due notice and after careful consideration of all evidence which could in any wise affect the decision of the commission” and in reply to the complaint of the refusal of the commission to open the hearing the answer avers “that notice of the hearing on the application before it, was given as required by law; that the petitioners did not avail themselves of the opportunity presented to appear before the commission until the testimony had been concluded and that proof of the matter raised by the petitioners here could not have altered the decision of the commission for the reason that the facts stated had been brought to the attention of the commission and considered by it and were not material or relevant to the issue raised by the petition for a certificate of public convenience.” It thus appears that the subject in which the intervenors were interested was brought to the attention of the commission, was discussed before the commission and that the order was made in the light of the conditions existing’ on the ground. It is further to be noted that the work contemplated by this power company does not include the erection of dams on Brush creek and that any dams to be hereafter erected are to be subject to the approval of the Water Supply Commission. The rights of the intervenors as landowners are protected! by the statutes authorizing the creation of the company: Brumbaugh v. Raystown Water Power Co., 254 Pa. 215. There is no ground for a supposition that the action of the Public Service Commission would have been affected *222by additional evidence as to the relation of the water power project to the property of the landowners on Brush creek. The notice of the application of the water power company for a charter did not conform to the rule prescribed by the Public Service Commission but that rule was adopted to secure uniformity in the procedure for a charter merely and has not the effect of positive law. The commission has held the notice to be sufficient, the parties in interest have been heard, all the questions raised have been considered and on the facts presented the action of the Public Service Commission cannot be held to be illegal. That it is unreasonable has not been made clear. After a review of the whole case we are of the opinion that the order of the Public Service Commission should be approved and the appeal dismissed at the cost of the appellant. It is so ordered.

The Superior Court affirmed the order of the Public Service Commission. Pennsylvania Power Company appealed.

*Error assigned,*among others, was the judgment of the Superior Court.

*Ralph J. Baker,*with Mm *Douglass D. Storey,*for appellant.

*J. E. B. Cunningham,*with him *Berne E. Evcms, Frank M. Eastman, Joseph E. Thompson*and *W. N. Trinkle,*for Connoquenessing Power Company, intervening appellee.

April 22, 1918:

Per Curiam,

These two appeals were heard together. Each is dismissed, at appellant’s costs, on the opinion of the Superior Court sustaining the action of the Public Service Commission.