Kittanning Borough v. Western Union Telegraph Co.

26 Pa. Super. 346, 1904 Pa. Super. LEXIS 319

Opinion

Opinion by

Rice, P. J.,

The fourth section of the ordinance of 1899 is a copy, verbatim et literatim, of the ordinance of 1895. The later ordinance contains no repealing clause; if it is to be construed as operating to destroy rights and relieve from liabilities that had accrued under the earlier ordinance, it is not because the council so intended, but because some inflexible rule of law requires us to give it that effect irrespective of their intention. But there is no such general rule. On the contrary, the general rule is, that the re-enactment of a previous statute is con-, strued not to be an implied repeal of the enactment, but a continuation thereof, so that all interests under the original statute remain unimpaired: 26 Am. & Eng. Ency. of Law (2d ed.), 758; Endlich on Interpretation of Statutes, sec. 490. The principle is applicable to the construction of an ordinance; therefore, the court was right in holding that the adoption of the ordinande of 1899 did not take away nor impair the right of the plaintiff to recover the license fees which had accrued under the ordinance of 1895.

It is objected that the ordinance is void because it is not restricted in express terms to poles and wires maintained upon highways and public property. As well might it be claimed that it is void because it does not say, in so many words, that it shall apply only to poles and wires maintained within the borough. Both of these limitations are to be implied in the construction of the ordinance, because the lawful, authority of the borough to impose such charges does not extend beyond them, and it is to be presumed, in the absence of affirmative language showing the contrary, that the borough council did not intend to impose them upon poles and wires outside their jurisdiction. And even if there were doubt as to the intention, it was the duty of the court not to declare the ordinance void on that account, but to restrict the right of recovery under it to poles and wires maintained upon the highways in the borough. See Lansdowne Boro. v. Springfield Water Co., 16 Pa. Superior Ct. 490. This the court did. The learned judge submitted to the jury the question as to the number of such poles and miles of wire, with positive instruction that the charge ($1.00 per pole and $2.50 per mile of wire) was reasonable and lawful. Having regard to the manner in which the case was submitted to them, the difference between the amount of their verdict and the amount of the plaintiff’s claim must be deemed to raise the implication that they found the number less than was claimed by the plaintiff, not that they found the charge per pole and mile of wire excessive and unreasonable. There is, therefore, no ground for supposing that the jury, in violation of law and the instructions of the judge, made themselves a taxing body, and based their verdict on what they conceived would be a reasonable charge, as the jury did in Postal Telegraph, etc., Co., v. New Hope, 192 U. S. 55 (24 Sup. Ct. Repr. 204).

That the borough had power to enact the ordinance, provided the fee was reasonable in amount, and that the defendant cannot claim exemption from liability under it by reason of the facts that it is engaged in interstate commerce, and has accepted the act of congress relative to the construction of telegraph lines over the post roads of the United States, and has paid all taxes imposed upon it by the general laws of the commonwealth, are propositions too well settled in Pennsylvania to require further discussion than we have given them in the cases decided in July last. We may- appropriately remark, however, that they were expressly conceded by the Supreme Court of the Dnited States in the recent case upon which the defendant relies for a reversal of the judgment. We come then to the question of the reasonableness of the amount of the charge. “Prima facie it was reasonable: Western Union Telegraph Co. v. New Hope, 187 U. S. 419 (28 Sup. Ct. Repr. 204). It devolved upon the company to show the contrary : ” Atlantic & Pacific Telegraph Co. v. Philadelphia, 190 U. S. 160 (23 Sup. Ct. Repr. 817). Therefore, when the plaintiff had proved the ordinance, the number of poles and miles of wire maintained by the company in the streets of the borough during each year of the period covered by the action, and its failure to pay, it had made out a prima facie case, upon which it would have been entitled to binding instructions in its favor, if no other testimony had been introduced. But the plaintiff went further and introduced evidence as to the location of the poles and wires with reference to public travel, the maintenance of poles and electric wires upon the same streets by other concerns, their proximity to the poles and wires of the defendant, the crossing of the wires of these several concerns, and the danger of their breaking and falling on other wires, as shown by the instances when this had occurred. At least once a year the chief of police, together with the street commissioner, made an inspection tour in which he counted the poles and calculated the miles of wires, and inspected both to see that they were in good condition. If this were all that was actually done by way of supervision and inspection, and all that was contemplated when the ordinance was passed, it might well be claimed that the amount of the charge was so grossly excessive as to compel the conclusion that it was imposed for general revenue purposes. But it was shown that in addition to this regular inspection, the officers of the police department, in connection with their other duties, kept a constant lookout for poles that might be in a dangerous condition and for wires that might be down, and when they found them in that condition reported it to the proper company. It is thus seen that this is not a case where it can be said that, judging the intention of the borough by its action, the ordinance was adopted to raise revenue and not to repay the expenses or provide for the liabilities incurred in the way of inspection or for proper supervision. True, the borough introduced no evidence as to cost of the supervision and inspection it gave; nor was it required to in the presentation of its case in chief. In answer to this prima facie case the defendant showed by the deposition of its vice president, that the total length of pole lines owned, leased and controlled by the com pany in Pennsylvania was 9,649 miles, and the total length of wire 70,359 miles; that in the entire system the total pole mileage was 196,115, and the total number of poles about 6,800,000; that the amount of the capital stock and bonded indebtedness of the company was $118,874,000; that for the fiscal year ending June 30, 1902, the company’s net receipts from the operation of its lines were $6,626,679.97. In deciding as to the pertinency of this testimony, and the weight to which it was entitled in the trial of this issue, it is to be borne in mind, that the license fee or charge sought to be collected was not a tax upon the property or franchises of the company, or on its transmission of messages, or on its receipts from such transmission, nor in the nature of rental for occupying certain portions of the streets, nor a charge for the privilege of engaging in business, either local or interstate, “ but was a charge in the enforcement of local governmental supervision, such as was presented in Western Union Telegraph Co. v. New Hope, 187 U. S. 419 (23 Sup. Ct. Repr. 204):” Atlantic & Pacific Telegraph Co. v. Philadelphia, 190 U. S., 160 (23 Sup. Ct. Repr. 817). If the ordinances had discriminated between telegraph companies (for example the Western Union and the Postal-Cable) using the same kind of instrumentalities and occupying the borough streets in the same way, charging one a greater fee than the other, by reason of the differences between them as to any or all the facts above recited, it might well be argued that it was in contravention of the general rule, 'that the powers vested in municipal corporations should, as far as practicable, be exercised by ordinances general in their nature and impartial in their operation: 1 Dillon’s Municipal Corporations (4th ed.)sec. 325. Having regard to the nature of the license fee, and to the purpose for which alone such a charge may lawfully be exacted, we fail to see the relevancy and materiality of the testimony above referred to, in the trial of an issue where the only question was, whether the charge was disproportioned to the reasonably to be anticipated expenses of the borough supervision and inspection. It would aid neither court nor jury in determining that question, but would tend rather to confuse and mislead.

The witness testified further as follows : “ It is difficult to give accurate figures for repairs and reconstruction, but a care ful examination of the reports from Pennsylvania shows that the company spent in that state for the year 1901, $17.50 per mile of poles for reconstruction, and $18.00 per mile for repairs ; or per mile of wire $2.00 for reconstruction, and $2.20 for repairs.” We do not say that this testimony was irrelevant. Under the decisions in the Atlantic and Pacific Telegraph case, and the later decision of the same court in Postal Telegraph, etc., Co. v. Taylor, 192 U. S. 64 (24 Sup. Ct. Repr. 208), the testimony would seem to have been relevant, as furnishing a standard with which to compare the sum demanded by the ordinance, if it had covered the entire period for winch the license fees were claimed, and had been accompanied by evidence as to the nature, extent and cost of the inspection and supervision of its lines which the company gave. But, standing by itself, proof that the company spent an average of so much per mile in a particular year for repairs and reconstruction does not furnish a standard by which to measure the reasonableness of the charge fixed by the ordinance to reimburse the borough for the anticipated expenses incident to proper supervision and inspection by its officers and agents, and the issuing and making a record of the license. In the Atlantic and Pacific Telegraph case the defendant gave evidence of the extent of its own supervision and the cost of “ repair, maintenance and supervision ” for the whole period covered by the action; but the evidence of the defendant’s vice president above quoted, and it is all there is bearing upon that subject, does not come up to that standard nor anything like it. Under all the relevant testimony in the case, the learned trial judge was right in instructing the jury that the prima facie presumption in favor of the reasonableness of the ordinance was not rebutted, and that the only question for their determination was the number of poles and miles of wire maintained by the defendant in the highways of the borough. This instruction was clearly warranted by the adjudicated cases up to that time, and, as applied to the evidence adduced on the trial, was not in conflict with the later decisions upon the subject.

Judgment affirmed.