The Scranton tribune. [volume] (Scranton, Pa.) 1891-1910, 1899-12-08

When the Melvin ordinance regulat-
Ing the charges for water in this city
was presented to the councils several
weeks ago City Solicitor A. A. Vosburg
was asked to give an opinion as to
the right Of council to pass such a
measure and also the validity of the
ordinance in question.
Mr.. Vosburg opinion was read at
last nights meeting OF the seiect coun-
cll and is as follows:
Scranton, Pa, Dec. 6, 1899.
TO the Honorable, the Members or the
select and Common Council, and the
Llght and Water Committee of the
Select Council.
Gentlemen: Your inquiry as to the
validity of the ordinance proposing a
Limitation of the charges for water
within the city of Scranton, raises an
important question, and | therefore
answer 1t somewhat at length.
1t is an important question, because
neither the state nor municipal gov
ernmeut should be allowed to interfere
Improperly with the management Of
private enterprises: but, on the other
hand there must be some supervisory
power to prevent monopoly and oppres-
sion in the conduct of business enter
prises which deal with the public at
large. 1t is part of the natural and
civil liberty TO form business relations,
free from the dlctation of the state. and
the like freedom should be secured and
entoved in determining the conditions
and terms of the contract which con-
stitutes the basis of the business re-
lations or transaction.
1t is, therefore. the general rule that
a man is free to ask for his wares or
his services, whatever price he Is able
to get, and others are willing to pay;
but there are exceptions to this rule
which can be justified on constitutional
grounds.
BUSINESS MUST BE PRIVATE.
This general freedom from the state
regulation of prices and charges must
only be claimed as a natural right, 80
far as the business Is itself of a pri-
Vate character and Is not connected
with or ndered more valuable by the
enjoyment of some special privilege or
franchise Whenever the business Is
itself privilege or franchise. not en-
1oVed by all alike, or the business Is
materially benefited by the gift by the
state of some special privileges to be
enjoyed in connection with 1t, the busi-
ness ceases to be strictly private, and
becomes a quasi public business, and
to that extent may be subject to police
regulations.
The general privilege or franchise is
granted to individuals because of some
supposed benefit to the public, and In
order that the benefit may be as
sured to the public. the state
may justly institute regulations to
that end. The regulation Of prices
in such cases will. therefore, be
legitimate and constitutional In sup
mort of this view Of the matter, I cite
Railroad Co VS.. Iowa. % ". s. 155;
Pick vs.. Railroad Co., 81 U. S. 1854:
SlauchterhoUse Cases. 1S Wall, IS:
Waterworks VS. Schotler 10 u. 3. 347.
There does not appear TO be any pro-
vision in the charter from the state,
under which the Scranton Gas and
water company Is authorized to 90
business, which grants It Immunity
from the general rule stated above:
thareeore this subject can ho decided
unon general principles. As has beeu
said, this principle is not new, but was
known to the common law.
II was said Nv T,O~d F'lnnhorouph IN
Aldrnutt VS. Ir~lis - East 597: "There
is no Doubt the general principle "a
favored both in law a~d tustion. that
every man NAV fix what nricn ha
nrnases uron his own prnna~tv for tho
use Of It; hut n for particular nur-
nose the nrhlic have right 10 rasnrt
to his pnrnieas and make usa of thom
and ho have rnnnnnolv In them n h"
viii take the here6t Of that monopoly
no must. rs an equivalent perform tho
duty attached to 1t on reasonable
terms"
POWER EARLY RECOGNIZED.
1t is thus apparent that at that early
day the power of the state to enforce
the charging of reasonable rates was
recognized. and both the United States
Supreme court and the state Supreme
courts, have gone even further In enrn-
ciating the same doctrine. In addition
TO the decisions of the United States
Supreme court to which have already
called your attention, l cite: Mobile
VS.. Guile. 2 Ala. N. s., 10 Mum VS..
People, 90 III. so s. G. "a U. S. 1l3,
Chief Justice Waite in the case last
cited saws: Looking, then, to the
common law, from whence came the
right which the constitution protects,
we find that when private property is
affected with a public interest,it ceases
to be juris Drivati only Property does
| become clothed with a public Interest
! when used IN n manner to make H. OF
! public consequence, and affect the com
munity at large. When, therefore, one
| devotes his property to n use in which
| the public has an interest. he in effect,
! grants 70 the uuhlic an interest in that
use. and must submit TO he rtrolled
! by the common good, to the extent of
! the interest ne has thus created. He
! may withdraw his grant by discOn-
| tinuine the use; but 50 long as he main
| tains the use. he must submit to the
| control"
| II Is evident that the interest of the
| public in the business, and the neces-
! sity for preventing mCnOuolies in ar
! ticles of public necessity, are the con-
, sidera tions which move the court to
| Unhold proper restriction and linita-
| tiOns upOn the price Of articles dealt
| in. II seems manifest from the decis-
| IONS cited that the state or Nation has
! the rieht to regulate prices In a proper
/ manner for the prevention Of eXtor-
/ tion and uonopoly and 7 am Of the
! orinion that the same authority IL vest
ad in the municipality by delegation
from n state.
CITIES HAVE THE POWER.
The Act Of May 13, 1889, Article G
! Section 6. provides that cities of the
! third lass have the mower ITO make
! all such ordinances, bylaws, rules and
| regulations, not Inconsistent with the
! Constitution and laws of this common
: wealth as may be eXpedlent or neces-
sary, in addition TO the special powers
I'm this section granted, for the prc.sr
maragement. care and control OF the
city and its finances, and the main
tenance of the peace, good government
and welfare OF the city, and it's trade
| commerce and manufactures, and the
same to alter, modify and repeal al
| pleasure"
Under these provisions. the powers
| of the state are delegated TO the city
of Scranton, and therefore. whatever
! power the state might exercise I'm the