Cochranton Borough v. Cochranton Telephone Co.

Opinion by Rice, P. J., The facts of this case as developed by the statement of claim and the affidavit of defense are very clearly and satisfactorily summarized in the opinion of the learned judge specially presiding in the common pleas and need not be recited by us. The first ground of defense set up is, that the agreement of David Berringer was personal to him and not binding upon his successors or assigns and therefore not binding upon the defendant company. This averment introduced into the case no fact which did not appear in the plaintiff’s statement of claim. It did not put in issue the averment of the statement that the defendant company took over the line constructed by Berringer, “and assumed the rights, duties, obligations and privileges of the said David Berringer with reference thereto.” In effect, the defendant’s averment is but the statement of a legal conclusion the correctness or incorrectness of which must be determined upon a consideration of the uncontradicted facts alleged in the plaintiff’s statement. That this conclusion is erroneous we think is free from doubt. The company does not deny that the rights it is exercising in the streets are those which it acquired as the successor of David Berringer, and by its action it asserts that its acquisition of them was valid as against the borough. But Berringer took and held these rights subject to certain obligations and duties of a continuing nature, and when the company took over these rights it admittedly assumed the duties and obligations as well. The true principle governing the case may be stated in the words of our Brother Porter in School District of Freeport Borough v. Enterprise Natural Gas Co., 18 Pa. Superior Ct. 73, substituting the name Berringer for Poterie. The right of Berringer being subject to the discharge of the duty, it passed to the defendant subject to the same burden, and so long as the defendant company continues to exercise the rights and enjoy the privileges conferred by the ordinance, it must perform the conditions to which the grant was made subject. It is true the grant in that case was to Poterie, his successors and assigns, but in view of the uncontroverted averment of the statement of claim above quoted the omission of those words in the grant [153] to Berringer cannot prevent the application of the principle. The second ground of defense is, in substance, that the license tax or fee imposed by sec. 2 of ordinance 42 is unreasonable in amount. The learned judge below properly held that this question was not open to investigation in the present case, because by the express acceptance of the provisions of the ordinance, which the borough required as a condition to the granting of its consent, a contract was created between the parties by which the right to occupy the streets was regulated. The principle has been recognized in numerous cases, and as applied to a variety of conditions imposed by municipalities. Of these cases the one most nearly like the present in its facts is Allegheny City v. People’s Natural Gas and Pipeage Co., 172 Pa. 632. There a general ordinance provided that any corporation availing itself of rights under it should pay to the city annually three cents for each foot of pipe laid by such corporation. The company by resolution accepted-the terms, conditions and provisions of the ordinance and agreed to comply therewith, “excepting so far as any of the terms of said ordinance may be held and adjudged illegal or unreasonable by the courts.” The company laid its pipes in the streets, but refused- to pay the annual charge, alleging that such a tax was illegal under the decision in Pittsburg’s Appeals, 115 Pa. 4, and 123 Pa. 374. An examination of the opinion of the Supreme Court shows that the court did not base its decision upon the power of the city to impose a tax eo nomine on the pipes of the company or upon the reasonableness of the ordinance as an exercise of the police power, but upon the agreement of the parties. After pointing out that the act of 1885 required the consent of councils, and that the ordinance made an acceptance of its provisions by the company a condition precedent to the opening of the streets, Justice Mitchell said: “The company cannot get consent by an apparent acceptance, and then repudiate part of the terms, under cover of a reservation. The acceptance which was required as a condition to the consent was an unqualified acceptance of 'all the terms, conditions, and provisions’ of the ordinance, [154] and nothing less than that would satisfy the condition. The company filed a nominal and apparent acceptance with the comptroller, and having obtained and enjoyed the privileges cannot now escape the obligations. It did not obtain the consent of councils to its qualified acceptance, or get anything from them which can now be set up as a compromise, or waiver of the city’s claim under the ordinance. If the terms prescribed were not acceptable to the company, or not such as it conceived itself bound in law to submit to, it had its remedy in the courts by the assertion of its rights under the statute, but having got its privilege by apparently agreeing to the terms it cannot now refuse to perform them.” The facts of that case were more favorable to the company’s contention than the present, for there the company attempted to reserve the question of the reasonableness of the ordinance, whereas in this case no such attempt was made. Complaint is made that the court did not give the defendant a hearing as required by the Act of April 17, 1905, P. L. 183,- or at least apply the principles of that legislation in the determination of the present controversy. The answer to this is twofold: first, this is not a proceeding under that act to determine the amount of annual license fee which should be paid to the municipality; secondly, the plaintiff’s right of recovery does not depend upon the reasonableness of the license fee but upon the agreement of the parties. We conclude that the learned judge was clearly right in holding the affidavit of defense to be insufficient, and for the reasons suggested by him in connection with the foregoing the judgment must be affirmed. Judgment affirmed.