39 Pa. Super. 1 | Pa. Super. Ct. | 1909
Opinion by
The only question involved in this case is the validity of an ordinance of the borough of Pottsville imposing a charge for a permit to make openings or excavations in public streets, and directing the method of taking out such permits. The ordinance prohibited the making of excavations or openings in streets by any person, firm, association or corporation, without having first obtained a written or printed permit from the commissioner of highways, authorizing such opening or excavation, and fixed a charge or license fee for the same. The portion of the ordinance fixing the fee, so far as material to this case, is as follows: “For any opening or excavation not exceeding three feet wide and
That the legality of the acts of legislative or corporate bodies cannot be tested by the motives of individual members, or the adventitious circumstances they may lay hold of to carry their measures, seems to be a matter free from doubt; Borough of Freeport v. Marks, 59 Pa. 253; Sunbury & Erie Railroad Company v. Cooper, 33 Pa. 278; Commonwealth v. Moir, 199 Pa. 534. The defendant company had made Mr. Pugh, the borough engineer, its own witness, and proposed to show by him that he had furnished to the borough councils estimates upon the basis of which this ordinance was passed, and that he had included in said estimates the cost for repairs of the highways after they had been opened; this was permitted, under exception by the plaintiff. The evidence certainly ought not to have been admitted and if it had been submitted to the jury and the question were one upon which the jury ought to have passed, the first, second and third specifications of error would have to be sustained. This error of the court was, however, a temporary one. The evidence was withdrawn from the jury and the court in its charge said: “ Right here we want to say that what moved the members of councils to pass the ordinance is not the subject of inquiry before the jury.”
The paper admitted in evidence, subject to the exception which is the foundation of the fourth specification of error, is not printed in the paper-book of the appellant and this specification must for that reason be disregarded. The appellant does not print in connection with the fifth specification of error the testimony which was admitted under the exception upon which that specification is founded, and the specification is for that reason dismissed.
The tribunal having jurisdiction to decide whether or not, under an agreed or duly ascertained state of facts, there being
The defendant company produced clear and satisfactory evidence as to the manner in which it made excavations in the public streets, guarded the same while open and caused the same to be refilled; that the refilling was done in a very careful manner and under the constant supervision of an expert; that-the trenches after being refilled were very frequently inspected by its expert employees for a year or, in case of necessity, for a longer period, and in case any defects developed they were promptly repaired. It also produced evidence showing the actual cost of making, refilling and repairing of the street openings made by defendant company, during the entire years 1903 and 1904, to have been $1,707.85, and the permit charges for the same openings, under the terms of this ordinance, amounted to $2,278.15. This evidence covered the entire period involved by the license fees in this proceeding. The defendant also produced evidence as to the expense of proper supervision and inspection of the trenches while open and so long afterwards as reasonably necessary. These several facts, standing alone, might not have been sufficient to warrant the court in holding the ordinance unreasonable, but taken together and in connection with the fact that the borough spent nothing for supervision until more than three years after the making of these excavations had elapsed, they furnished a standard by which to measure the reasonableness of the charge fixed by the ordinance to reimburse the borough for the anticipated expense incident to proper supervision and inspection by its officers and agents, and the issuing and making a record of the license: Schellsburg v. Western Union Telegraph Company, 26 Pa. Superior Ct. 343; Kittanning Borough v. Western Union Telegraph Company, 26 Pa. Superior Ct. 346. The entire testimony in the case was such as to rebut the presumption in favor of the reasonableness of the ordinance. The court would have been