City of Philadelphia v. Western Union Tel. Co.

Butler, J.

On the trial defendant presented the following point: “Under the evidence in this case the licеnse fee sought to be recovered by the plaintiff is much more than the cost of the regulаtion, and excessive — it is therefore unreasonable in law and void — and if you believe the evidence in the case, your verdict must be for the defendant.” The point was reserved, and the court submitted the case to the jury under the following instructions: “The city of Philadelphia sues to rеcover license fees underthe ordinance before you. Whether the ordinance is valid or not depends upon the question whether it is reasonable, as respects the amount required to be paid, by the defendant and other similar companies using lines of wire within the сity. The city cannot tax these companies, and does not, as declared by counsеl, seek to do so. Nor can it prohibit them from establishing and maintaining their lines but it can subject them tо proper regulations and supervision, with a view to the protection of persons аnd property. ‍​‌‌​​‌​​‌‌‌‌‌​‌​‌​​​​‌‌‌‌​​‌​‌​‌‌​‌​‌​​​​​​​​‌‌‌‍It is the dirty of the city to prescribe such regulations and conditions, and to exеrcise such supervision. If it failed in this it would be responsible to citizens who might be injured .either in person or property. It is readily seen that tbe construction and maintenance of thes.e linеs subjects the city to serious responsibility, and considerable expenditure, and for this the city may demand indemnity and reimbursement. Thus you observe the question is, as before stated, is the ordinancе reasonable? The city has power to enact such an ordinance if its exactions are not excessive. In passing upon the question of excessiveness, the city should not be subjected to a contracted or narrow view, but be treated with fair and reasonable liberality. Turning now to the evidence you must determine whether the ordinance is reasonable.” The jury have found for the plaintiff, the point must now be disposed of. It embraces , the entire сase. The validity of the ordinance, judged by the testimony. The facts were submitted to the jury, for reаsons stated at the time — which need not be repeated hero. Ñor need we enlargе on the charge respecting the parties’ rights. There is no controversy on the subject; nоr is there room lor controversy. The plaintiff cannot tax the defendant, — not only because it is not authorized to do so, but because the stale is without power to confer such authority. The imposition of a' tax would be an interference with interstate commerce аnd thus be an infra ciion of the federal constitution. The plaintiff may and is in duty bound, to subject the defendant, and other similar companies to suck proper conditions, restrictions, and supеrvision, respecting lines within its limits, as are necessary to the public safety, and consequently to such charges as wall enable it to perform its duty, without loss to itself. If the ordinance does nо more than this it is reasonable, and therefore valid; otherwise it is not. Does it do more? The quеstion in view if the evidence, (about which there is no disagreement,) is too narrow to admit of discussion. A statement of the facts disposes of it. The experience of several yeаrs shows that $8,000 or at the most $3,500 per year is sufficient to cover every expenditure the city is required to make on this account . The ordinance imposes ‍​‌‌​​‌​​‌‌‌‌‌​‌​‌​​​​‌‌‌‌​​‌​‌​‌‌​‌​‌​​​​​​​​‌‌‌‍the payment (in round numbers) of $16,000 аim ■■■!ly. This is five limes the amount required. It seems to follow as a necessary consequence, that the ordinance is unreasonable. It compels a payment annually of about $14,000 in excess of the amount necessary. This is a tax' pure and simple. The city cannot collect and lay by a sum to insure itself against imaginary future demands, which may possibly arise. If it properly discharges its duty of control and supervision no such demands can arise. It is responsible alone for vigilance and care in these respects. It may, possibly, at some time, be subjected to expenditure in resisting unjust claims. This judged by the past, however, is not probable. A very trilling annual surplus would provide for it. But as the contingency is remote such provision may well be left until it occurs. The only embarrassment we have felt in reaching this conclusion arises from the fact that the statе courts — the common jdeas of this city and the supreme court — adopted a different оne in previous suits under this ordinance. Our very great respect for these courts would impel us tо give their judgments controlling weight, if we could find anything to support them in the testimony before ns. Judgment must be entered for the defendant notwithstanding the verdict.

Case Details

Case Name: City of Philadelphia v. Western Union Tel. Co.

Court Name: U.S. Circuit Court for the District of Eastern Pennsylvania

Date Published: Oct 28, 1889

Citation: 1889 U.S. App. LEXIS 2559