172 Pa. 632 | Pa. | 1896
Opinion by
Conceding that no authority has been shown in the city of Allegheny to impose a tax eo nomine on the pipes of appellant company laid in its streets, the question would still be open of the reasonableness of the ordinance in question as an exercise of the police power in the imposition of a license fee for supervision, and liabilities and inconveniences arising therefrom, on the principles of our recent decisions in regard to telegraph
But this question was not argued and need no.t be considered now, as the court below rightly held that this case was to be determined on the agreement of the parties. The act of May 29, 1885, sects. 11 and 13, P. L. 34, 35, required the consent of councils, and the ordinance made an acceptance of its provisions by the company a condition precedent to the opening of its streets. The company cannot get consent by an apparent acceptance, and then repudiate part of the terms, under cover of a reservation. The acceptance which was required as a condition to the consent was an unqualified acceptance of “ all the terms, conditions, and provisions ” of the ordinance, and nothing less than that would satisfy the condition. The company filed a nominal and apparent acceptance with the comptroller, and having obtained and enjoyed the privileges cannot now escape the obligations. It did not obtain the consent of councils to its qualified acceptance, or get anything from them which can now be set up as a compromise, or waiver of the city’s claim under the ordinance. If the terms prescribed were not acceptable to the company, or not such as it conceived itself bound in law to submit to, it had its remedy in the courts by the assertion of its rights under the statute, but having got its privilege by apparently agreeing to the terms it cannot now refuse to perform them. On this point the decision of this court in Federal St. R. W. Co. v. Allegheny, 31 Pitts. Leg. J. 259, is closely analogous and authoritative.
Judgment affirmed.