29 Pa. Super. 7 | Pa. Super. Ct. | 1905
Opinion by
This action of assumpsit was brought in June, 1903, to recover a license fee of fifty cents per pole which under the -ordinance was due in the preceding January.
Either the. borough is entitled to recover the whole fee or it cannot recover at all. Under no circumstances is it permissible to submit the question of the reasonableness of the fee to
We have had occasion in several recent cases to consider the question of the power of boroughs to impose such charges', of the reasonableness of the amount of the charge, and of the province of the court and jury : Lower Merion Twp. v. Postal Telegraph-Cable Co., 25 Pa. Superior Ct. 306; Norwood Boro. v. Western Union Telegraph Co. 25 Pa. Superior Ct. 406; Schellsburg v. Western Union Telegraph Co., 26 Pa. Superior Ct. 343; Kittanning Boro. v. Western Union Telegraph Co., 26 Pa. Superior Ct. 343 ; Kittanning Boro. v. Kittanning Consolidated Natural Gas Co., 26 Pa. Superior Ct. 355. Our conclusion as to the last question, namely, the province of the court and jury, was thus stated in the last cited cáse: “ If the decision of the state courts that an ordinance is not unreasonable, involves a federal question, as, for example, whether or not, by reason of the amount of charge the ordinance imposes an unlawful burden upon interstate commerce, the decision is undoubtedly reviewable by the supreme court of the United States, and its decision of that question is binding upon us in all cases similarly situated as to their facts even though it may be in conflict with previous decisions of our own or of our Supreme Court: Com. ex rel. v. Butler, 19 Pa. Superior Ct. 626; Harrisburg v. McPherran, 14 Pa. Superior Ct. 473, 491. But upon all questions of purely state law, it is our duty under the act creating this court, and would be so even though there was no express statutory provision to that effect, to receive and follow the decisions of the Supreme Court of the state ‘ as of binding authority.’ By the law of this commonwealth, as declared by that court, -the tribunal having jurisdiction to decide whether or not, under an agreed or duly ascertained state of facts — there being no conflict of - evidence as to essential facts —an ordinance is unreasonable, is the court: Kneedler v. Boro, of Norristown, 100 Pa. 368; New Hope v. Postal Tel. Cable Co., 16 Pa. Superior Ct. 310; s. c., 202 Pa. 532; Com. v. Phila., Harrisburg, etc., R. R. Co., 23 Pa. Superior Ct. 205. And we'are not convinced that as to cases tried in the state
The first fact distinctly alleged in the affidavit of' defense is that since the adoption of the ordinance the borough through its officers has not exercised any supervision over the poles and wires of the defendant company, and has not expended any money for that purpose, and has not incurred any liability or expense in any manner incident to maintenance of said poles save the cost of printing the' original ordinance. This might be a good defense if this were an action to recover for services rendered or expenses incurred in the past; but it is not that kind of action. It is not based on contract, express or implied, but upon a liability imposed by virtue of the police power. The license fee was for a particular year, and it was made due and collectible at the beginning of the year, so that the borough might be enabled to perform its duty of supervision in that year. It was expressly decided in Mooney v. Luzerne Boro., 186 Pa. 161, that it “is the duty of the municipality to exercise a careful .supervision over the adjustment and regulation of the electric wires suspended over its streets, ” and in the same connection Chief Justice Sterrktt said : “ In view of the multiplicity of overhead wires carrying deadly currents, and the increasing frequency of accidents from defects in such wires, or in the manner of their adjustment, it behooves municipalities to
The concluding averment of the affidavit of defense as to the disproportion between the amount of the fee and the value of the defendant’s property is clearly irrelevant: Schellsburg v. Western Union Telegraph Co., 26 Pa. Superior Ct. 343; Kittanning Boro. v. Western Union Telegraph Co., 26 Pa. Superior Ct. 346.
The affidavit contains the averment, several times repeated, that the amount of the license fee “ is not based upon the cost of supervision or expenses incurred thereby.” We infer that in this averment the defendant means that the amount of money that would be realized by the borough from the im
Judgment affirmed.