33 Pa. Super. 480 | Pa. Super. Ct. | 1907
Opinion by
This is an action to recover the penalties imposed by a borough ordinance for digging four trenches in macadamized streets of the borough of Potts ville, by the defendant company, for the purpose of laying gas pipes, without having obtained permits so to do as by the ordinance required. The ordinance requires that any person or corporation shall before making any excavation in any macadamized public street make written application to the commissioner of highways, setting forth the place where and the object for which the excavation is to be made, and pay a fee of $3.00 to the officer, who is thereupon required to issue a permit to make the excavation. There was at the trial in the court below no dispute as to the fact that the defendant had made the excavations without taking out the permits, as charged, and the only ground of defense alleged was that the ordinance was invalid.
The right and duty of a municipality, in the exercise of the police power, to regulate, inspect and supervise the various appliances which individuals and corporations may acquire the right to introduce and maintain, upon and under the surface of the public highways, and to impose a reasonable charge to reimburse it for the probable expense of such inspection and supervision, must be accepted as settled. The only question for the court to determine is whether a particular ordinance is a reasonable exercise of such power: New Hope Borough v. Western Union Telegraph Co., 16 Pa. Superior Ct. 306; New Hope Borough v. Postal Telegraph Co., 16 Pa. Superior Ct. 310; s. c., 202 Pa. 532; Taylor Borough v. Postal Telegraph Co., 16 Pa. Superior Ct. 344; s. c., 202 Pa. 583; Lower Merion Township v. Postal'Telegraph Cable Co., 25 Pa. Superior Ct.‘
The ordinance with which we are now dealing was not an annual charge for the inspection of the lines of the defendant, but a specific one to meet the entire expense of the duty of regulation, inspection and supervision cast upon the municipality by the making of the excavation in the macadamized street. The duty of the municipality with regard to such an excavation does not end with the issuing of the permit, nor with the filling of the excavation until it is level with the street, but continues so long as the settling of the material used
The plaintiff borough, at the trial in the court below, upon its case in chief offered evidence as to what was done by the municipal authorities with regard to the ditches dug in the streets by this company and other parties. This evidence established that the borough discharged the duty of inspection and supervision of the streets in question. The borough went further, however, and produced evidence which would have justified a finding that when ditches were dug in the macadamized street, particularly by this company, the filling always sank and it was necessary for the borough authorities to fill up the trenches and repair the macadamizing, using a heavy roller for that purpose, and that this involved an expenditure for that purpose alone of more than twice the amount of the fee charged by this ordinance for the permit to make the excavation. This evidence may have been admissible under the issue for the purpose of showing the necessity for the inspection and supervision of such excavations, but whether the expenses in
The charter of the defendant company, Act of February 25, 1850, printed in the pamphlet laws of 1851, page 774, provides, “ That said company shall be required without unnecessary delay to refill, repair and place in safe condition all openings made in the streets, lanes and highways of said borough.” The charter thus expressly imposed the duty to repair the streets, and it is not necessary t;o inquire whether in the absence of such a provision there would be a legal obligation on the defendant company to repair the pavements which it destroyed. The law to which this company owed its existence required it to repair the streets, and the duty thus imposed involved the obligation not merely to refill and resurface the trenches, but to repair such defects as subsequently developed because of the manner in which the trenches were refilled and resurfaced. That the borough might have enacted an ordinance requiring the company to repair the defects in the pavement resulting from the making of the excavations, and within a reasonable period thereafter, cannot be questioned: Springfield Water Company v. Boro of Darby, 199 Pa. 400; Edgewood Borough v. Scott, 29 Pa. Superior Ct. 156. The laying of a pavement may require skill and experience and it is within the police power of a municipality to ordain a regulation that the paving made over excavations in the public streets shall, in order to preserve uniformity, be done by the municipal authorities, and that the party who makes the excavation shall be required in ad
The fourth specification is without merit, and the refusal of the point upon which it was based was proper. The point limited the elements of the duty of the borough which the jury were to consider to the mere issuing of the permit and refilling of the excavations. This entirely overlooked the fact that it was reasonable and proper for the borough to provide for a record of all these permits and that the duty of inspection and
We have already said that ordinances of a character like to that with which we are now dealing and imposing similar or higher charges have been held to be valid, and the learned judge of the court below would not have been warranted, in the absence of evidence, in declaring this ordinance unreasonable. The evidence submitted by the borough in this case was such that a jury might fairly have been permitted to infer that the borough had provided an organization for the issuing of the permits to open streets and the preservation of a record thereof, and that it maintained officers whose duty it was to inspect the streets, as affected by the excavations made therein, and that those officers discharged their duty. The court below would, therefore, not have been justified in giving binding instructions in favor of the defendant. The fifth assignment of error is dismissed.
The evidence produced by the defendant as to what it actually cost the company to have the ditches refilled and the streets repaired, was wholly insufficient, standing alone, to furnish any basis for estimating the reasonableness of the charge of the borough for the proper, skillful and continuous inspection and supervision which it was the municipal duty to maintain. The less the company spent in refilling its ditches and repaving the street over them, the greater was the necessity for municipal supervision, which the ditches opened by this company never obtained, for it refused to take out the permits. The defendant company offered no evidence whatever as to any inspection of a ditch made by the defendant or its employees, after that ditch had once been filled up. The defendant called but one witness, and his testimony clearly sho¡wed that the company did not inspect their ditches after they were once covered and that, on the contrary, they waited until some person came to them with a complaint. This witness distinctly admitted that he knew that the borough authorities were compelled time and time again to go back and refill the ditches which had been left by this defendant company in an improper condition. That the cost of a proper inspection and supervision cannot be measured by the expenditure of this company, which failed to provide for any inspection or supervision, is
The judgment is reversed and a venire facias de novo awarded.