Gettysburg Borough v. Gettysburg Transit Co.

Opinion by Rice, P. J., Section 2 of the Act of April 22, 1874, P. L. 109, provides that “the decision of the court shall be in writing, stating separately and distinctly the facts found, the answers to any points submitted in writing by counsel and the conclusions of law.” Failure to conform substantially to these requirements, if assigned for error, is ground for reversal. But we are unable to agree with appellant’s counsel that they were not observed by the learned trial judge in the present case. It is not clear that the points were not virtually answered in the court’s general findings and conclusions. See Commonwealth v. Monongahela Bridge Company, 216 Pa. 108. But be that as it may, the court cured the irregularity, if any, by answering then specifically when the objection was raised by the exceptions first filed, and giving opportunity to file exceptions to its answers. The findings of fact, while not numbered, are stated in separate paragraphs, and with sufficient regard to formality. Then, after discussion of legal principles applicable to the case, and citation of pertinent authorities, the court set forth in a distinct paragraph, and in such form that it could not be misunderstood, a conclusion of law, which, if correct, would sustain a judgment in the plaintiff’s favor for the amount therein directed. The fact that a judge’s discussion of the pertinent' legal'principles and authorities does not follow, but precedes, his statement of the final conclusion or conclusions of law is not ground for valid objection to the form of the decision. It is argued that the ordinance is invalid because there is no [608] allusion therein to police inspection or regulation. But the learned judge properly held that this is not ground for holding that it was adopted for revenue purposes and not as a police measure. The regulation of matters affecting the public through the medium of a license fee, or, as sometimes called, a license tax, is a recognized exercise of the police power, and it is settled by decisions relating directly to such ordinances as that now under consideration that if a municipal regulation is adopted, which would be lawful if intended for one purpose and unlawful if intended for another, the presumption is that the purpose was lawful, unless the contrary clearly appears: Johnson v. Philadelphia, 60 Pa. 445; Oil City v. Oil City Trust Co., 151 Pa. 454; Lansdowne Borough v. Springfield Water Co., 16 Pa. Superior Ct. 490. It is contended further that the burden of proving the reasonableness of the ordinance, and particularly the reasonableness of the license fee, was on the plaintiff. But the exact contrary has been held in numerous cases. The rule that should govern the exercise of the power to revise the action of municipal authorities, conferred upon the courts by the Act of April 17, 1905, P. L. 183, need not be considered in this case. But in an action, such as this is, to recover a license fee, the rule is definitely settled by the decisions that the courts will not declare the ordinance void because of the alleged unreasonableness of the fee charged, unless the unreasonableness be so clearly apparent as to demonstrate an abuse of discretion on the part of the municipal authorities. Considerable stress is laid by defendant’s counsel on the fact that the borough through its officers and agents did not inspect the cars of the defendant company. But it is to be borne in mind that the annual license fee for which the action was brought is not a property tax, and that the police purpose for which it was imposed, presumably, included more than a mere periodic inspection of the cars. Such' fee has been spoken of as a specific charge to meet the entire expense of the duty of regulation, inspection and supervision cast upon the municipality with respect to the manner in which the company is exercising its privilege: Kittanning Borough v. Consolidated [609] Natural Gas Co., 219 Pa. 250; Pottsville Borough v. Pottsville Gas Co., 33 Pa. Superior Ct. 480. It is to be borne in mind, further, that while evidence as to the action of the borough during the year for which the license fee in suit was demanded was admissible for some purposes, yet the fact that the borough neglected some part of its supervisory duty during the year is not, standing alone, a bar to an action to recover a reasonable license fee for a particular year which was due and collectible at the beginning of the year: West Conshohocken Borough v. Conshohocken Electric Light & Power Co., 29 Pa. Superior Ct. 7. The defendant offered to show that throughout the year for which the license fee of $50.00 a year for each of three cars, and $1.00 a day for each additional car, was demanded in this action, there was another ordinance in force whereby electric railway companies, and other companies having poles carrying overhead wires, were required to pay to the borough “as a license fee for the inspection of the same and for the ground occupied by the poles an annual sum of fifty cents for each pole.” We are not satisfied with the reason assigned by counsel for objecting to this offer. They say that it was irrelevant to the question before the court, which was the reasonableness of the “license tax for the cars of the company.” But the proper determination of that question depended upon the question whether the charge was imposed for mere inspection of the cars, or was intended to meet the entire expense of the duty of regulation, inspection and supervision cast upon the borough with respect to the manner in which the company is exercising its privileges. It was upon the latter theory that the learned court proceeded in arriving at the conclusion that the amount of the charge “might reasonably and fairly be expended, in such a careful and thorough inspection and supervision of this railway as it is the duty of the borough of Gettysburg to exercise for the safety of its citizens and the public.” From this and.other portions of the learned judge’s findings and conclusions it is fairly to be inferred, that in determining the reasonableness of the fee he took into consideration theexpense to the borough incident to proper inspection and super [610] vision of the poles as well as of the other parts of the railway. But a license fee which might be reasonable, if intended to cover the probable expense incident to proper police supervision and inspection of the railway and its operation as a whole, might be excessive and unreasonable when considered in connection with the fact that under another ordinance an additional license fee is exacted for the inspection and supervision of a part of the railway, as, for example, the poles and wires. We are of opinion that the evidence should be admitted, and, unless its bearing on the case is explained away in some manner not now appearing, that it should be considered in determining the reasonableness of the license fee in suit. The remaining inquiry that we deem necessary to notice particularly is as to the admissibility of evidence to the effect, that in consequence of the occupation of the streets by the railway tracks, and of the kind of rails used, the great burden of travel is cast upon the sides of the streets, and this increases the cost to the borough of repairing and maintaining them. The question stated broadly is, whether the probable additional cost to the borough of maintaining and keeping in repair the portions, outside the tracks, of the streets on which an electric railway is lawfully operated, under municipal consent, may be included in the license fee imposed by the municipality in the exercise of its police power. In the numerous cases in which the limits of the power of municipalities in this regard have been considered, it has been generally held that the elements which enter into the charge are the necessary or probable expense of such inspection, regulation and police surveillance as municipalities may lawfully give to the erection and maintenance of the appliances which individuals and corporations may acquire the right to introduce and maintain, upon and under the surface of the public highways: Pottsville Borough v. Pottsville Gas Co., 33 Pa. Superior Ct. 480 and cases there cited. It appears in the present case that municipal consent was given to the defendant company upon certain conditions, — inter alia, to keep in repair the portion of the street between the rails and a certain space on either side. The court properly held that for failure to comply with these conditions the remedy of the bor [611] ough was upon its contract. It seems equally clear that a direct attempt to impose on the defendant the duty of repairing the street outside the limits covered by those conditions could not succeed, and if the municipality could not do that directly, except by making it a condition upon which its consent was given, it is impossible to see how it could do it indirectly by making the annual license fee sufficiently large to cover the probable cost of such repair. This would introduce an element into such charge which has not heretofore been recognized as entering into it — an element, too, which it is not necessary to introduce in order to indemnify the borough against loss by reason of its expenditure in the exercise of the police power, upon which, alone, ordinances imposing such charges are sustained. The learned judge admitted the kind of evidence we are now considering with evident hesitation, and at the same time said that he would pass later upon the question whether it should be considered by the court on the question of the reasonableness or unreasonableness of the ordinance. It does not clearly appear in his findings and conclusions that he did consider it; indeed, there is some ground for inferring that he did not. But, on the other hand, he does not expressly say that he wholly excluded it from consideration. To say the least, there is not absolute certainty with regard to the matter. The uncertainty is to some extent increased by the fact that the admission of the testimony was the subject of two of the exceptions to the decision of the court and that in entering final judgment no allusion was made to them. Under the circumstances we feel constrained to sustain the fourth, fifth, sixth and seventh assignments of error. The judgment is reversed and a new trial awarded.