Borough of North Braddock v. Second Ave. Traction Co.

• Decision Date: 29 July 1898
• Docket Number: 172-1898
• Citation: 8 Pa.Super. 233
• Parties: Borough of North Braddock v. The Second Avenue Traction Co., Appellant
• Court: Pennsylvania Superior Court

8 Pa.Super. 233

Borough of North Braddock v. The Second Avenue Traction Co., Appellant

No. 172-1898

Superior Court of Pennsylvania

July 29, 1898

Argued April 26, 1898

Appeal by defendant, from judgment of C. P. No. 2, Allegheny Co.-1897, No. 954, for want of a sufficient affidavit of defense.

Assumpsit to recover license fees. Before Frazier, J.

The plaintiff borough passed an ordinance, which is sufficiently set out in the opinion of the court, imposing an annual license fee on all cars of the defendant operating within the borough, and provided a method for assessing this license fee in advance. Defendant company refused to pay the license fee imposed and suit was brought to collect the amount of the license fee alleged to be due. The affidavit of defense set up at length nonliability because the amount of the license fee was excessive, and because the method provided in the ordinance for assessing the license fee was unjust to the borough as well as to the traction company and was indefinite, vague and impossible.

Judgment entered against defendant in default of a sufficient affidavit of defense for $ 156.70. Defendant appealed.

Error assigned was making absolute the rule for judgment for want of a sufficient affidavit of defense.

Affirmed.

W. D Evans, with him Geo. C. Wilson, for appellant. -- Upon a rule for judgment for want of a sufficient affidavit of defense all the material averments of the affidavit must be assumed to be true: Knerr v. Bradley, 105 Pa. 190.

That the question of whether the fee imposed is reasonable or not is a matter of fact, will be seen by a glance at the following cases in which the question was involved Railway Co. v. Phila., 58 Pa. 119; Johnson v. Phila., 60 Pa. 445; Tel. Co. v. Phila., 22 W. N.C. 39; Allentown v. Tel. Co., 148 Pa. 117; Chester v. P. & R. R. R., 148 Pa. 120; Phila. v. Tel. Co., 82 F. 797; Phila. v. Tel. Co., 40 F. 615.

William Yost, for appellee. -- The mere bald assertion of unreasonableness in the amount of the license fee, goes for nothing: Chester City v. Tel. Co., 154 Pa. 464; Telegraph Co. v. Phila., 22 W. N.C. 39; Phila. v. Telegraph Co., 167 Pa. 406; Allentown v. Telegraph Co., 148 Pa. 117.

Moreover the court is requested to note how every inconvenience and hardship suggested by the defendant is obviated by the following provision of the ordinance:

" Provided, however, that any company owning or operating such cars, upon the streets or highways of the borough, may obtain a general annual license for all cars owned or operated by it, by the annual payment, in advance, of $ 200 therefor."

Before Rice, P. J., Wickham, Beaver, Reeder, Orlady, Smith and Porter, JJ.

OPINION

ORLADY, J.

The borough of North Braddock brings suit against the defendant company to recover a license tax on street cars, imposed by an ordinance as follows: " A supplement to an ordinance to levy and collect a license tax on vehicles, establishing rates of license tax on street railway cars. Section 1. Be it ordained and enacted by the town council of the borough of North Braddock, and it is hereby ordained and enacted by the authority of the same, that the following reasonable rates per annum of license tax on all vehicles, commonly called street railway cars, used within the borough in carrying persons or property for pay, be established; viz.: each car equipped with motor and propelled by electricity -- $ 10.00; each trailer car, attached to or drawn by a motor car, $ 15.00. Provided, however that any company owning or operating such cars upon the streets or highways of the borough may obtain a general annual license for all cars owned or operated by it, by the annual payment in advance of $ 200 therefor."

The affidavit of defense filed, avers that, 1. The ordinance is unjust and the tax imposed is excessive and unreasonable. 2. The ordinance is vague, indefinite and no means is provided in it for reasonably assessing the cars operated on the railway.

The court made absolute a rule for judgment for want of a sufficient affidavit of defense, and on argument of this appeal it is frankly admitted that the borough unquestionably has the right to impose a reasonable license tax as an exercise of the police power, but it is urged that whether or not the fee imposed is reasonable in amount is a question of fact purely, and can be determined only after proofs for and against its reasonableness have been adduced.

In the City of Allentown v. W. U. Tel. Co., 148 Pa. 117, it was held that the ordinance was in the exercise of the police power of the city, and that the only question was whether it was a reasonable exercise of such power. The amount of the license fee in such cases...