38 Pa. Super. 311 | Pa. Super. Ct. | 1909
Opinion by
The borough brought this action of assumpsit to recover of
The right and duty of the borough, in the exercise of the police power, to regulate, inspect and supervise the introduction and maintenance under its street of the pipe lines of a duly incorporated gas company and to impose a reasonable charge to reimburse it for the probable expense of such inspection and super
The appellant contends that the court below should have held the charges unreasonable and the ordinance invalid because of what was disclosed by the evidence to have been actually done by the borough in the way of inspection and supervision. The evidence disclosed that the borough had adopted a system for the issuance of the permit, under which although the permit was granted by the chairman of the street committee the permit was actually issued by the city clerk. The city clerk was paid a salary of $15.00 per month for all services rendered in connection with his office, and received in addition a commission of three per centum on all collections made by him, the charges for these permits to open streets being included in said collections. No particular part of the salary of the clerk was designated as compensation for his services in issuing these permits. The police force of the borough consisted of a chief and four patrolmen and the testimony clearly established that it was a part of the duty of all these officers to inspect the streets and alleys of the borough, and that they were required to go over their beats twice a day and report all obstructions and defects in the public highways. It was shown that in some instances the police officers had found the ditches of the defendant company in a dangerous condition and had themselves placed lights at the work, to guard against accidents. The salaries of these
The defendant company called certain of its own employees who testified as to the manner in which their ditches were filled and the pre-existing conditions restored. These witnesses were of opinion that they did their work so well that no inspection or supervision whatever upon the part of the borough authorities was necessary. Some of these witnesses testified that they themselves continued to inspect the trenches for about a year after they were filled. Some of them testified that it was only necessary to inspect these trenches after each heavy rain, perhaps ten or fifteen times, and that the work could be done upon
The offer of the defendant to prove that there were other ordinances of the borough of Chambersburg which imposed an annual license fee upon the poles and wires of telegraph and telephone companies and electric railways within the borough was properly rejected. The borough was not seeking to charge the defendant under such an ordinance. The ordinance which the borough was seeking to enforce did not attempt to impose an annual charge on the pipes of the defendant in the street, but imposed a charge once for all time for openings actually made in the highways. The offer to prove “the number of public service corporations to which the ordinance of June 24th,
The evidence disclosed that in making excavations in the streets of Chambersburg it was necessary to do much blasting and that it was difficult to so fill the ditches that they would not subsequently require refilling. This rendered municipal supervision and inspection more necessary and difficult, and what was said in Kittanning Borough v. Natural Gas Company, 26 Pa. Superior Ct. 355, has peculiar application: “The learned judge below upon a view of all the facts in evidence and with better knowledge of the surrounding local conditions than we have, has determined that there was not sufficient evidence to warrant a finding that the ordinance is unreasonable. We have carefully re-examined the evidence in the light of the foregoing principles, and are not convinced that he ought to have held otherwise, or ought to have submitted the question to the jury.” The assignments of error are all overruled.
The judgment is affirmed.