Borough of North Braddock v. Central District & Printing Telegraph Co.

Opinion by William W. Porter, J., “ Boroughs have equal power with cities to impose a license tax for the poles of an electric light company erected in the borough streets: ” Ridley Park v. Light and Power Co., 9 Pa. Superior Ct. 615. The determination of the reasonableness of the amount of the license fee to be charged lies in the discretion of the borough authorities in the first instance. It is not for the courts to determine whether a license fee is reasonable, but whether it is so unreasonable as to demonstrate an abuse of discretion on the part of the authorities fixing the fee: Allentown v. W. U. T. Co., 148 Pa. 117; North Braddock Borough v. Traction Co., 8 Pa. Superior Ct. 233. The affidavit of defense in this case has been drawn with professional skill in the light of the reported decisions. We are not convinced, however, that the defendant company has presented a state of facts* which takes the cause out of the adjudicated cases. The allegation that the imposition of the license tax is a regulation of interstate commerce in violation of the provisions of the federal constitution is not a defense: Allentown v. W. U. T. Co., supra. The fifth paragraph of the affidavit alleges that the license fees of $1.00 for each pole, and $2.50 for each mile of wire are unreasonable. To support this allegation several statements of fact are made. It is said (1) that the license fees are not based upon the cost of inspection but are “ thirteen times more than a sum sufficient to defray all expenses and charges that may have been or might be incurred by said borough by the most careful, thorough, and efficient inspection and supervision that might be made of the subject.” In the light of the decision in Phila. v. A. U. T. Co., 167 Pa. 406, we are of opinion that this is not sufficient to prevent judgment. In that case the allegation was that the charges imposed were more than ten times the cost of the regulation of the poles and wires, and of all extraordinary expenses including liability for damages, loss and expenses of every nature. [30] The last clause makes the affidavit stronger than that in the present ease in view of the opinion in the case of Chester City v. W. U. T. Co., 154 Pa. 464. (2) The further fact is alleged that the borough “ has not and does not maintain any inspection . . . . and has not incurred any expenses.” Such an allegation was not deemed sufficient by the Supreme Court to prevent the entry of judgment in the case of Chester City v. P. R. and P. T. Co., 148 Pa. 120. (3) We are unable to say whether the facts that the defendant’s poles are located upon a little used highway running along land not adapted for building purposes, and upon a highway lying between the properties of a steel company make the cost of inspection and regulation greater or less than the performance of similar police duty in a large city. The conditions could scarcely be set out in sufficient detail to enable a court to pass upon the relative cost of proper municipal inspection and protection in the two cases. (4) The assertion that the .amount of the fee is arbitrarily fixed and that the amount of the annual charge largely exceeds the cost of the defendant’s maintenance of its own line, does not convict the borough of abuse of discretion in fixing the license fee. Such a comparison of cost involves too many elements of uncertainty to furnish a rule by'which to measure the fidelity of the borough authorities. (5) The allegation that the license fee is so excessive as to destroy the defendant’s business, is not sufficient to lead us to reverse the court below. The character, quantity and management of the defendant’s business are involved in this allegation as well as the amount of the fee. In many, if not in all of the cases cited herein, the amounts of the fees imposed have been the same as those in the present case. These have been held either to be reasonable, or not so unreasonable as to warrant the interference of the court. This does not mean that such a charge is under all circumstances reasonable. It may be that a case will arise in which the facts will demonstrate an abuse of discretion in the imposition of fees of similar or less amounts. The present case is, however, controlled as we believe by the judicial precedents found in the authorities cited. The judgment is affirmed.