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October 9, 1958


Appeal, No. 195, Jan. T., 1958, from order of Court of Common Pleas of Cumberland County, March T., 1957, No. 2, in case of Commonwealth of Pennsylvania Water and Power Resources Board v. Green Spring Company, Inc. Order reversed; reargument refused November 5, 1958.


Thomas D. McBride, Attorney General, with him Wanda P. Chocallo, Assistant Attorney General, for appellant.

William W. Caldwell, with him Mark E. Garber, Sr., Thomas D. Caldwell, Sr., and Garber & Garber, and Caldwell, Fox & Stoner, for appellee.

Before Jones, C.j., Bell, Musmanno, Arnold, Jones and Cohen, JJ.

Author: Jones

[ 394 Pa. Page 2]


The Water and Power Resources Board of the Commonwealth of Pennsylvania (herein termed the Board)*fn1 instituted an equity action in the Court of Common

[ 394 Pa. Page 3]

Pleas in Cumberland County wherein it was alleged that the Green Spring Company, Inc. - 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",*fn2 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 Section

[ 394 Pa. Page 42]

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

[ 394 Pa. Page 5]

& 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."*fn3

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

[ 394 Pa. Page 6]

    or limitations, the statute constituted an unconstitutional delegation of ...

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