Pittsburg & Allegheny Telephone Co. v. Braddock Borough, 43 Pa. Super. 456

43 Pa. Super. 456 | Pa. Super. Ct. | 1910

Opinion by

Head, J.,

The proceeding resulting in the decree appealed from was begun under the Act of April 17, 1905, P. L. 183. The borough of Braddock takes this appeal and complains in the first place that the said act of assembly is unconstitutional. The act has been twice before this court for construction: Delaware & Atlantic Telegraph & Telephone Company’s License, 37 Pa. Superior Ct. 151; West Chester Borough v. Postal Telegraph Cable Co., 38 Pa. Superior Ct. 603. In the last-mentioned case the constitutionality of the act was directly assailed, but this court held it to be a valid exercise of - legislative power. In the present case it is argued that the title of the act is defective in that it fails to give notice of the legislation to be found in the body of the act and thus offends against the constitutional provision on that subject. This is not the ground on which the legislation was attacked in the case already decided.

The act is entitled, “An Act providing for the determination by the Court of Common Pleas of the proper county of all disputes as to the reasonableness of the amount of license fees between municipal corporations and telegraph, telephone or light or power companies.” To determine a dispute is to end it. When a court ends a dispute between parties it does so by the entry of an appropriate order, judgment or decree. The act of the court in such case, being an exercise of judicial power, the idea of a previous hearing of the parties and ascertainment of the facts, and of all the ordinary incidents of a legal trial, are sufficiently indicated in the language of the title of the act providing for the entry of such judgment or decree. We cannot think that anyone interested in the subject expressed in the title could be fairly surprised at any provision contained in the body of the act. It designates the court that is to enter the decree. It provides for appropriate pleadings to raise the necessary issue and mark the boundaries of the disphte, the existence of which caused the filing of the petition. The act describes, by apt and familiar expressions, the character of the procedure to be taken under it, and declares the force, effect and limitations of the judgment or decree to be entered. All of these matters are so strictly germane to the determination of the dispute mentioned in the title that no good purpose could be subserved by loading the title with specific references to all of them.

The decisions construing and applying the constitutional provision referred to have been so numerous and so recent that it would be but a useless parade of learning to cite or refer to them here. We deem it sufficient to say that we regard the title to the act as a sufficient compliance with the constitutional requirement on that subject.

Nor is it necessary to more than mention the argument advanced to prove that by the operation of this act the borough of Braddock has been denied the benefit of art. I, sec. 6, of the constitution which provides “trial by jury shall be ,as heretofore and the right thereto remain inviolate.” In the Borough of Dunmore’s Appeal, 52 Pa. 374, it was determined that a municipality does not belong to the class whose rights are guaranteed by the section quoted. It was there clearly pointed out by Mr. Justice Woodward that as municipalities are but the creatures of legislative power, they must bow to the legislative will and be subject to its mandates, even in cases where natural persons, citizens of the commonwealth, might lawfully and constitutionally disregard such legislation.

It is further alleged that by this act the legislature has attempted to delegate legislative power to the courts. A study of the act clearly enough shows, we think, that the court, in entering the decree contemplated by the act, in no sense exercises legislative power. It merely ascertains and defines the boundary line which separates the reasonable from the unreasonable. The legislature, whose creature the appellant is, has declared that in the exercise of the police powers delegated to it, it must keep within that boundary line. With that’ limitation defined, the municipality, keeping within it, has the exclusive right as before to determine the exact amount of license fees which the corporations mentioned in the act must pay. The municipality -is but an agency created by the legislature to do its part in maintaining the public policy of the state and accomplishing the ends for which the state itself exists. Public service corporations are like agencies. They spring from the same creator and are brought into existence for the same purposes as the municipality itself. The act under consideration is but the expression of the legislative will that these two agencies must live in harmony and but provides the methods by which that harmony, if threatened or disrupted, may be maintained or restored. On no one of the grounds urged can we declare the act of assembly invalid, and the assignments of error on this subject must be overruled.

A number of assignments attack the findings of fact of the court below. It must be apparent that in making up such findings in cases like the present,, local conditions as described by the witnesses, as well as the opinions of qualified persons, would be factors of considerable importance. The presiding judge of the county wherein such a proceeding is instituted has much important knowledge concerning men and conditions that appellate courts cannot and do not possess. Hence the wisdom of that policy which requires us to accept these findings as having the same conclusive force and effect as would the verdict of a jury, save only in cases of manifest and flagrant error on the part of the trial court. A careful examination of the findings in the present case and the testimony from which they are drawn reveals no such error on the part of the learned court below, and as a consequence the several assignments on this subject cannot be sustained.

Finally, it is argued that the decree should be set aside because the reasonableness of the ordinance of the appellant borough, out of which this litigation arises, is res adjudicata. This contention is based on the fact that after this ordinance had been passed; but prior to the act of 1905, the appellant borough brought an action against the predecessor of the appellee company to recover license fees for certain years which had become due under the provisions of that ordinance. The company filed an affidavit of defense setting up that the ordinance was unreasonable and oppressive, and therefore invalid. Judgment was entered against the company for want of a sufficient affidavit of defense, and on appeal that judgment was affirmed by this court: Braddock Borough v. Allegheny County Telephone Co., 25 Pa. Superior Ct. 544. It ought to be apparent that the reasonableness of an ordinance must depend upon many conditions which, in their nature, are shifting and subject to change. From this it would seem to follow that an ordinance might well be deemed to be reasonable, in the light of the conditions existing at the time of its adoption, and yet might become unreasonable and oppressive when those conditions had changed or disappeared. It would be illogical, therefore, to hold that because license fees had been collected during certain years past, that no citizen could thereafter be heard to complain that the provisions of the ordinance had become unreasonable.

It may be proper here to quote from the opinion of this court in the Delaware & Atlantic Telegraph & Telephone Company’s case, 37 Pa. Superior Ct. 151: “The learned court below was not called upon, in this proceeding, to exercise the power possessed by the courts long before the passage of the act nowunder consideration, viz., to set aside an ordinance because it was unreasonable, oppressive and arbitrary, resulting from an abuse of the powers of the municipality. The object of this proceeding was simply to determine, from the evidence produced, 'the amount of annual license fees which should be paid to the said municipal corporation,’ ” etc. And the legislature in its wisdom has recognized the fact that in the very nature of things these determinations, whether made by the municipality in the first instance or by the court after a dispute has arisen, ought to be subject to change with changing conditions, because in sec. 5 it provides, “The amount of such annual license fees, as determined by the final order of the court, shall continue until altered by the court itself; but no application shall be made for that purpose oftener than once in every two years.”

After an attentive consideration of all the arguments urged upon us in the careful brief of the learned counsel for the appellant we are all of the opinion that the record discloses no reversible error.

Decree affirmed.