Kittanning Electric Light, Heat & Power Co. v. Kittanning Borough

Opinion by William W. Porter, J., Had the case of Borough of Ridley Park v. Electric Co., 9 Pa. Superior Ct. 615, been reported before the preparation of the arguments in this case much of the discussion would possibly have been omitted. As was there said and repeated in the opinion filed this day in the case of Borough of North Braddock v. Telegraph Co., boroughs may impose a license fee upon poles and wires of electric light companies in the exercise [34] of the police power. The license fee is not levied as a tax, and is payable, although the company may be charged by legislative enactment with the payment of a tax upon its capital stock. The reasonableness of the license fee as to amount is first to be determined by the borough authorities. Their act is reversible by the court only on conviction of a clear abuse of discretion: Borough of North Braddock v. Traction Co., 8 Pa. Superior Ct. 233. There is neither evidence nor offer of evidence in this case to prove such unreasonableness of amount as would warrant the court in favorably considering the complaint that there was a violation of official duty. It is claimed however that the consent of the borough to the erection of the plaintiff’s poles was obtained on stipulated terms; that these terms have been complied with by the plaintiff company; that the imposition of this license fee is in effect a violation of the borough’s contract, and should for this reason render the fee uncollectible. This is not tenable ground. There was no attempt made by the parties to contract against the subsequent imposition of a license fee, and had there been, it would have availed nothing. A municipality cannot waive or bargain away the right to exercise of police powers delegated by the state : McKeesport City v. Pass. Ry. Co., 2 Pa. Superior Ct. 242, 249. The appellant further contends that the passage of two later ordinances consenting to the entrance of a telephone company and a railway company upon its streets and imposing as a condition of such consent the payment of a fee of $1.00 per pole (and no fee based on mileage of wire) in the case of the telephone company and $1.00 per car in the case of the railway company, works a discrimination which invalidates or repeals the ordinance imposing the license fee (here in controversy) on all telegraph, telephone, railway, etc., companies. We cannot assent to this. There is no reference to the license fee imposed by virtue of the police power in the two ordinances referred to and the payments imposed by them are conditions tacked to the consent to occupy the highways. The two ordinances do not in our opinion necessarily conflict with the license ordinance. We have been unable to find any sufficient reason presented by the appellant for the reversal of the court below. The judgment is therefore affirmed.