25 Pa. Super. 544 | Pa. Super. Ct. | 1904
Opinion by
The nature of the charge imposed by a municipal ordinance on telegraph and telephone poles and wires does not depend on the descriptive term that may be applied to it. The charge
Section 4 of the ordinance of 1896, granting the defendant authority to erect its lines, provides for maximum rates for telephone service to the public, a limited free service for borough purposes, with a reduced rate for service beyond this, and certain privileges in the use of the telephone lines; and these are declared to be “ in consideration of this grant, and in lieu of all taxation and special assessments in the nature of taxation upon said company by said borough.” The defendant alleges its acceptance of the grant on these terms, and its compliance with the requirements of - the ordinance, as exempting it from the charges fixed by the ordinance of 1894, on which the action is brought.
If there is any municipal tax, or assessment in the nature of a tax, which it is the purpose of the ordinance of 1896 to remit, in consideration of the stipulated service, no question respecting it is presented here. In a legal sense, the payment required by the ordinance of 1894 is neither taxation nor a special assessment in the nature of taxation. As already said, it is a charge to meet the cost of' supervision by the municipality in the exercise of the police power. The municipal authorities have no power to grant exemption from this supervision, or by ordinance or contract provide for such exemption. Article
The defense set up in the affidavit is clearly insufficient. If the exemption stipulated by the ordinance of 1896 relates merely to municipal taxation, the plaintiff’s claim is not based on such taxation, and the matter of defense has no application to it. If it relates to charges arising from the exercise of the police power, the exemption is in plain violation of the constitution, and void.
Judgment affirmed.