American Baseball Club of Philadelphia v. Philadelphia

• Citation: 312 Pa. 311,167 A. 891
• Decision Date: 30 June 1933
• Docket Number: 159
• Parties: American Baseball Club of Philadelphia et al. v. Philadelphia, Moore, Mayor et al., Appellants
• Court: Pennsylvania Supreme Court

167 A. 891

312 Pa. 311

American Baseball Club of Philadelphia et al. v. Philadelphia, Moore, Mayor et al., Appellants

No. 159

Supreme Court of Pennsylvania

June 30, 1933

Argued April 10, 1933

Appeal, No. 159, Jan. T., 1933, by defendants from decree of C.P. No. 4, Phila. Co., March T., 1932, No. 8884, in equity in case of American Baseball Club of Philadelphia et al. v Philadelphia, J. Hampton Moore, Mayor, Kern Dodge, Director of Public Safety, and William B. Mills, Superintendent of Police. Reversed and bill dismissed.

Bill to have ordinance declared invalid and to restrain its enforcement. Before BROWN and HEILIGMAN, JJ.

The opinion of the Supreme Court states the facts.

Decree declaring ordinance invalid and restraining its enforcement. Defendants appealed.

Error assigned, inter alia, was decree, quoting record.

The decree is reversed and bill dismissed; costs to be paid by appellees.

James Hall Prothero, with him Thomas B. K. Ringe, Ernest Lowengrund, Assistant City Solicitors, and David J. Smyth, City Solicitor, for appellant.

Robert F. Irwin, Jr., of Donahue, Irwin, Merritt & Gest, with him George M. Kevlin and Charles G. Gartling, for appellees.

Before FRAZER, C.J., SIMPSON, KEPHART, SCHAFFER, MAXEY, LINN, and DREW, JJ.

OPINION

MR. JUSTICE KEPHART:

Appellee, the owner of Shibe Park in Philadelphia, a stadium accommodating 30,000 persons, had scheduled some 77 baseball games for the season of 1932. An ordinance of the city enacted December 15, 1931, required those giving athletic contests or exhibitions at which an admission was charged to pay a license fee based upon a reasonable estimate of the number of policemen or firemen which, in the opinion of the director of public safety, would be necessary to protect the public safety at and on the premises at such contests or exhibitions, at the rate per man of $5.50 per day. Appellee and the Philadelphia National League Club were notified by the director of public safety that neither would be permitted to play its first scheduled game unless it applied for a license, and paid as the license fee for that particular game $66.00, and thereafter it would be required to pay a license fee for each of its scheduled games or exhibitions for the year 1932. The applications for licenses and payment of the fees were made under protest. Appellee and the Philadelphia National League Club filed a bill in equity against the city, its mayor, director of public safety and superintendent of police, to have the ordinance declared invalid and to restrain its enforcement. The court below decreed the ordinance invalid, restrained its enforcement, and directed the repayment of the fees already paid. The city appeals from this decree.

At the outset it must be noted that the ordinance deals with private enterprises engaged in a continuous seasonal business for profit, which make extraordinary use of municipal facilities in order to conduct their private business successfully. The profitable operation of these businesses involves the attraction of a large number of persons to a central place. They require a large number of police officers for the maintenance of public order, especially at the ticket windows and entrances, the speedy conduct of traffic on the highway, and the protection of appellees' property and business in supervising the attendance by preventing from attending those who fail to pay an admission fee. Without the presence of this unusual number of policemen, the proper ordering, protection and safety of the public would be impossible, where, as is usual at public athletic contests, large groups of persons gather together.

It has been recognized consistently by judicial authority that where it is necessary in the proper conduct of business that unusual demands be made on the city facilities, a reasonable charge may be made by the municipality to cover its actual expense in providing such special services: Point Bridge Co. v. Pittsburgh Rys. Co., 240 Pa. 105; Mahanoy City v. Hersker, 40 Pa.Super. 50; Gettysburg Boro. v. Gettysburg Transit Co., 36 Pa.Super. 598; Kittanning Boro. v. Nat. Gas Co., 26 Pa.Super. 355. It was said in the last case cited, page 361: "if a corporation 'so carries on its business as to justify, at the hands of any municipality, a police supervision of the property and instrumentalities used therein, the municipality is not bound to furnish such supervision for nothing, and may, in addition to ordinary property taxation, subject the corporation to a charge for the expense of the supervision.'" The conditions requiring these special services were created by appellees, and the municipality was required to render them. Manifestly the conduct of appellees' business imposes on the municipality a special burden, of which the municipality has a right to be relieved.

It is objected that the ordinance imposes a tax under the guise of a license fee and was enacted purely as a revenue producing measure. The history of the ordinance is set forth by appellees to substantiate this theory. In the broad sense every ordinance which requires the payment of money is a revenue producing measure, but the primary purpose of ordinances such as this under consideration is the reimbursement of the city for providing special services to the licensees. The preamble of the ordinance in part reads: "Whereas, it is necessary for the City of Philadelphia, acting through its department of public safety, to furnish the services of firemen and policemen to protect the public safety at athletic contests and exhibitions, by assigning police and firemen to regulate traffic created thereby and to guard against fire within the premises used for such contests and exhibitions." Though we may suppose the ordinance was imposed to increase the revenue, this does not invalidate it as a licensing ordinance if it clearly appears the city is seeking to compel the persons who cause expense to pay for it.

With this fact established, we must consider the means by which a municipality may reimburse itself for the expense to which it is put in performing such services. A license fee is a customary incident of municipal authority. A license fee is valid if the amount thereof is reasonably commensurate with the actual cost to the municipality for special services rendered: Western Union v. Phila., 22 W.N.C. 39; Allentown v. Western Union, 148 Pa. 117; Point Bridge Co. v. Pittsburgh Ry. Co., supra; Delaware and Atlantic Tel. & Tel. Co.'s Petition, 224 Pa. 55. The wage of policemen varies according to the length of service from $4.40 to $6.00 per day. The rate of $5.50 per man fixed by the ordinance is not excessive or unreasonable; it is based on a workday of eight hours and is the customary wage. From past experience, as well as by prior mutual arrangement, some 12 policemen under command of a sergeant were deemed necessary by the director of public safety of the City of Philadelphia and by appellee for the purposes heretofore mentioned. In addition, a considerable number of extra officers for the purpose of regulating traffic on streets neighboring appellees' parks, and for which no charge is made, were required.

However, it is contended by appellee that the ordinance involves a delegation of legislative authority in that the amount of the license fee is not fixed and determined by the ordinance, but is left dependent upon the number of men employed in performing the extra services for appellee; and that the number is wholly within the discretion of the director of public safety, an administrative official. Thus, it is pointed out, the amount of the license is in reality wholly determined by an administrative officer and not by the legislative body. If this conclusion is true, unquestionably the ordinance is invalid for the legislature may not delegate its law making authority; but an examination of the ordinance as related to the facts at once discloses that the means used to determine the amount of the license fees are similar to those involved in nearly all license legislation.

A rate is fixed, but the application of the rate is dependent upon extraneous facts to be found by an administrative official. Section 1 of the ordinance provides that the persons therein designated "shall pay . . . a license fee based upon a reasonable estimate of the number of police and firemen which, in the opinion of the director of public safety, are necessary to protect the public safety at and on the premises . . . at the rate per man of $5.50 per day." The rate and time are not seriously controverted, but the number that may be assigned is the question that gives apparent trouble. Generally speaking, in all cases where the reasonableness of the action of the administrative officer in fixing license fees is subject to the visitation of the courts, if the discretion lodged in such an official is abused, the courts will provide a remedy as the case arises.

From the very nature of the special services rendered no better or more definite standard could be fixed by council. A flat fee would tend to be arbitrary and unreasonable; such a fee might be commensurate with the services provided for one person and be wholly unreasonable and oppressive when considered in the light of services rendered another.

The administration of all taxing and licensing statutes is based on reasonableness as determined by some basic factor. In the levying of a realty tax, though the rate is fixed by proper authority, the basic factor is the value of the property to be taxed and that is determined by administrative officers. It is the determination of this value which fixes the amount of the tax. It is so with respect to telephone pole and wire license fees. The determination of reasonableness as to the charge is an...