Borough of Ridley Park v. Citizen's Electric Light & Power Co.

9 Pa. Super. 615 | Pa. Super. Ct. | 1899

Opinion by

Smith, J.,

This action was brought to recover the amount due from the defendant under an ordinance requiring a license fee to be paid for the maintenance and use of poles in the highways of the borough. Payment is resisted on the grounds : (a) That no valid ordinance has been shown to warrant the imposition of such license fee ; (/;) that the borough has no power to impose such fee. The borough was incorporated under the general borough law of 1851. The ordinance in question is admittedly sufficient in terms to embrace the license fee imposed; it was passed by the council, signed by the president, and approved by the chief burgess, May 18, 1896. On the margin of the ordinance book these words are entered: “ Published May 20th and posted according to law. F. D. Kane.” It was shown that F. D. Kane was the clerk of council at the time this ordinance was adopted. But it is contended that in order to have the ordinance admitted in evidence as the foundation of the action, the plaintiff must show, affirmatively, that all the preliminary steps towards its final adoption were duly taken. We have already held the contrary. In Grier v. Homestead Borough, 6 Pa. Superior Ct. 542, we said: “ It was not necessary to prove the preliminary steps taken in passing and publishing the ordinance, as it is well held that the ordinance book is prima facie evidence of the validity of the ordinance, and if anything essential to its validity has been omitted in passing or publishing it, it devolves upon the party resisting it to show such invalidity: Prell v. McDonald, 7 Kan. 266; s. c. 12 Am. Rep. 423 ; City of Atchison v. King, 9 Kan. 375. To hold otherwise, would make it necessary to prove that the advertisements were of the statutory number, or that the posting places were the most public in the borough; but while admissible as an ordinance, it is subject to attack, and proof may be adduced to show that it was not legally published and posted, and hence was inoperative.” It was unnecessary, therefore, for the plaintiff to offer further proof, in the first instance, of the formal adoption of the ordinance. No evidence whatever was given by the defendant on this point, and the only basis for the argument that the ordinance was not properly advertised was elicited on cross-examination of the plaintiff’s witness. This was wholly insufficient and did not amount to a scintilla of proof. So far as it applied its tendency was in support of the presumption that publication had been made as required by law. The entry in the ordinance book, where the ordinance is recorded and its passage noted, that the ordinance was published and posted according to law, is a sufficient record of that fact. The ordinance book shows, pruna facie, the existence of a valid ordinance and, as such, it was properly admitted in evidence. The first 'specification is overruled.

The remaining specifications relate to the power of the borough to exact license fees for poles erected in the streets of the borough. A borough is a public municipal corporation and has, within its sphere, all the powers necessary for ■ its corporate existence. Its corporate officers have the power to enact such ordinances “ as they shall deem necessary for the good order and government of the borough,” not inconsistent with the laws of this commonwealth. It is urged that the section of the act of 1851 from which this general power is quoted must be confined to the twenty-five subsequent sections wherein this authority is specifically set forth, and Millers town v. Bell, 123 Pa. 151, a case involving the validity of a borough ordinance, is cited in support of this prop'osition. But it is to be observed that in the same paragraph suggesting this restriction, the Supreme Court distinguish the ordinance under consideration in that case from “ An ordinance requiring a telegraph company to pay a fixed sum for each of its poles, for this comes within the police power over the streets given by the same act.” Thus the power contended for here is expressly recognized by that tribunal. It is argued that the powers of a city to supervise and regulate the erection of poles in the streets do not extend to boroughs incorporated under the act of 1851. Whatever ground may have existed in the past for this distinction has been practically removed by legislation within the last decade. Cities and boroughs are created for the public welfare with powers to be exercised solely for that purpose. The functions of each with regard to the public streets are practically identical and recent legislation on this subject regulates both by the same enactments. It necessarily follows that powers and duties thus united extend alike to both municipalities. The police power of the state when exercised by either has been applied uniformly to both when dealing with the same subject: Borough v. Phillips, 148 Pa. 482. When thus exercised in common for a like purpose, it should have the same scope, force and effect. The argument here that this power may be exercised by cities in imposing a license tax on street railway poles, bm cannot be exercised by boroughs under like conditions, is illogical and opposed to the trend of judicial decision.

On principle and authority and the qualitative relation between cities and boroughs on the point at issue, we hold that boroughs have equal power with cities to impose a license tax for the poles of electric light companies erected in the borough streets. We cannot say that the license fee imposed was unreasonable.

The specifications of error are all overruled and the judgment is affirmed.