8 Pa. Super. 233 | Pa. Super. Ct. | 1898
Opinion by
The borough of North Braddock brings suit against the defendant company to recover a license tax' on street ears,.
The affidavit of defense filed, avers that, 1. The ordinance is unjust and the tax imposed is excessive and unreasonable. 2. The ordinance is vague, indefinite and no means is provided in it for reasonably assessing the ears operated on the railway.
The court made absolute a rule for judgment for want of a sufficient affidavit of defense, and on argument of this appeal it is frankly admitted that the borough unquestionably has the right to impose a reasonable license tax as an exercise of the police power, but it is urged that whether or not the fee imposed is reasonable in amount is a question of fact purely, and can be determined only after proofs for and against its reasonableness have been adduced.
In the City of Allentown v. W. U. Tel. Co., 148 Pa. 117, it was held that the ordinance was in the exercise of the police power of the city, and that the only question was whether it was a reasonable exercise of such power. The amount of the license fee in such cases rests in the first instance with the city council. It is only where such discretion has been abused that we are justified in interfering. We cannot say that this discretion has been abused in this instance or that the license fee is unreasonable.
The second point submitted on that trial that “ the license fee of one dollar per pole per annum is excessive, unreasonable and therefore unlawful,” was negatived by the trial judge, and
The conclusion as urged depends upon many facts not stated in the affidavit, among which are the mileage, number, and size of cars; extent of their use by the public; liability to keep tracks in repair; and others which are necessary to determine whether the tax claimed is reasoirable or not. The facts stated in the affidavit are to be taken as true, viz: Church v. Jones, 132 Pa. 462: Bryson v. Trustees, 168 Pa. 352; but what is called a fact in the affidavit is only such after affirmatively ascertaining a number of other facts necessary to support it, and these should have been specifically stated': Sigua Iron Co. v. Vandervort, 164 Pa. 572. In Chester City v. W. U. Tel. Co., supra, the Supreme Court says in affirming the reasonableness of a license fee of one dollar upon each new pole to
The defendant, by its secretary, swears to his 'own conclusions of law and fact without stating’ the facts upon which that conclusion is founded. It is a reasonable and salutary rule which requires that the facts relied on as a defense should be plainly stated in the affidavit so that the court may judge of their legal effect as an answer to the claim: Class v. Kingsley, 142 Pa. 636.
The second objection to the ordinance that it is vague, indefinite, and that no means is provided in it for reasonably assessing the cars operated upon defendant’s railway, is fully answered by the provision enabling the company to obtain a general annual license for all cars owned or operated by it by the annual payment of a fixed sum.
The assignments of error are overruled and the judgment is affirmed.