West Conshohocken Borough v. Conshohocken Electric Light & Power Co.

Opinion by Rice, P. J., 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 [10] the jury with instructions that if they find it to be unreason* able they can render a verdict for such smaller fee as the evidence shows would be reasonable : Postal Telegraph-Cable Co. v. New Hope, 192 U. S. 55 (24 Superior Ct. Repr. 204). 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 [11] courts, this rule has been abrogated or changed, or was intended to be, by the decision of the supreme court of the United States in Atlantic & Pacific Tel. Co. v. Philadelphia, 190 U. S. 160 (23 Superior Ct. Repr. 817). It certainly has not been changed in cases arising under our state laws in which no federal question is involved.” The case in hand is of the látter character. Therefore the question is whether, assuming the ability of the defendant to prove the facts properly alleged in the affidavit of defense, the court would be warranted in declaring the ordinance unreasonable. It is to be borne in mind that this is not an action on a quantum meruit, and that where an ordinance is not unreasonable on its face — as this is not — it is incumbent on one who alleges its invalidity upon the ground of unreasonableness to aver and prove the facts that make it so. lie must allege facts; an averment of a mere opinion, or an inference of fact or a conclusion of law, based on facts not stated is not sufficient to prevent summary judgment. 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 [12] recognize and perform their duties in the premises in more than a perfunctory manner, if they would escape the consequences of negligence.” The ordinance in question expressly provided for the performance of this duty, at least so far as the poles were concerned, by the supervisor of streets. TJpon no sound principle can it be held that the neglect of this duty by the officer in previous years, or the neglect of the borough to compel its performance, discharged the defendant from liability to pay the license fee for the particular year in question, or prevented that liability from attaching. The fact that the borough neglected its supervisory duty and incurred no expense for police supervision is held to be a relevant and highly significant fact in an action brought to recover the license fee, and a fact that will constitute a defense when coupled with the fact that the fee is grossly disproportioned to the amount of any expense that might have been reasonably and fairly incurred for the most careful, thorough and efficient inspection and supervision possible, and for all measures and precautions that could be required to be taken by the municipality for the safety of its citizens and the public : Postal Telegraph-Cable Co. v. Taylor, 192 U. S. 64. (24 Superior Ct. Repr. 208.) But a careful study of that case will show that it does not decide that the first fact, standing alone, is a complete defense to an action brought to recover a reasonable license fee for a particular year which was due and collectible at the beginning of the year ; and the Pennsylvania decisions hold distinctly that it does not: New Hope Boro. v. Postal Telegraph-Cable Co., 16 Pa. Superior Ct. 310; 202 Pa. 532. 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 [13] position and collection of a license fee of fifty cents per pole would be in excess of the cost of proper supervision and inspection. But the affidavit states no facts upon which this conclusion is based. It does not state what would be the approximate cost of such police supervision, nor whether the disproportion between it and the fee is great or small. But in the United States cases upon which the defendant relies it is distinctly held that, as in the nature of things it is ordinarily impossible to determine in advance the exact cost, the municipality is at liberty to make the charge large enough to cover any reasonably anticipated expense and the payment of the fee cannot be avoided because it may subsequently appear that it was somewhat in excess of the actual expense of the supervision. We cannot agree with the appellant’s counsel that the affidavit in question brings the case within our decision in the Lower Merion case. The affidavits are materially and substantially different. In the case cited, as well as in the Taylor case, there was the positive averment that the charge was “ more than twenty times the amount that might have been or could possibly be incident to such inspection, supervision and regulation, together with all reasonable means and precautions that might have been, or possibly could be required to be taken by the township.” The difference between that averment and the one under consideration is so apparent as to render further discussion unnecessary. We think the learned court below was clearly right in holding the affidavit to be insufficient. Judgment affirmed.