City of Chester v. Western Union Tel. Co.

• Decision Date: 20 February 1893
• Docket Number: 92
• Citation: 154 Pa. 464,25 A. 1134
• Parties: Chester City v. Western Union Telegraph Co., Appellant
• Court: Pennsylvania Supreme Court

25 A. 1134

154 Pa. 464

Chester City v. Western Union Telegraph Co., Appellant

No. 92

Supreme Court of Pennsylvania

February 20, 1893

Argued February 7, 1893

Appeal, No. 92, July T., 1892, by defendant, from order of C.P. Delaware Co., Sept. T., 1891, No. 185, entering judgment for want of sufficient affidavit of defence.

Rule for judgment for want of sufficient affidavit of defence in assumpsit to recover license tax on telegraph poles.

From the record it appeared the city of Chester, in 1884 and 1889 adopted two ordinances, by which it was provided that every telegraph company owning telegraph poles within the city should pay to the city treasurer a license fee of one dollar upon each new pole to be erected, and one dollar yearly for each pole maintained by the company, and providing penalties for failure to comply with the ordinance. This action was brought to collect from defendant the sum of $1,470, being license fees upon two hundred and forty-five poles for six years, from 1885 to 1891. The material averments of the affidavit of defence are stated in the opinion of the Supreme Court.

Error assigned was entry of judgment for plaintiff for want of a sufficient affidavit of defence.

Judgment affirmed.

Silas W. Pettit, John R. Read and H. B. Gill with him for plaintiff, cited: W.U. Tel. Co. v. Phila., 22 W.N. 39; Allentown v. Western Union Telegraph Co., 1 Adv. R. 511 [s.c., 148 Pa. 117]; Pensacola Tel. Co. v. W.U. Tel. Co., 96 U.S. 1; Ry. Co. v. Illinois, 118 U.S. 557; St. Louis v. Tel. Co., 39 F. 59; Leloup v. Mobile, 127 U.S. 640; Ratterman v. W.U. Tel. Co., 127 U.S. 411; Norfolk & W.R.R. v. Com., 136 U.S. 114; McCall v. California, 136 U.S. 104.

Orlando Harvey, for appellee, cited: Northern Liberties v. Gas Co., 12 Pa. 318; Phila. v. W.U. Tel. Co., 2 W.N. 455; R.R. v. Phila., 47 Pa. 314; Steam Supply Co. v. Phila., 41 Leg. Int. 252; Beer Co. v. Massachusetts, 97 U.S. 25; Thorpe v. R.R. Co., 27 Vt. 149; W.U. Tel. Co. v. Phila., 22 W.N. 39; Van Hook v. Selma, 70 Ala. 361; Com. v. Patch, 97 Mass. 221; St. Louis v. Weber, 44 Mo. 550; Ash v. City, 11 Mich. 347; Carter v. Dow, 16 Wis. 298; Tenney v. Lenz, 16 Wis. 566; State v. Herod, 29 Iowa 123; Allentown v. W.U. Tel. Co., 1 Adv. Rep. 511 .

Before PAXSON, C.J., STERRETT, McCOLLUM, MITCHELL and DEAN, JJ.

OPINION

PER CURIAM:

It was conceded by the appellant company that the city of Chester has the power to impose a reasonable charge for a license to erect telegraph poles within the limits of the municipality. The ordinance of the city imposed a license tax of one dollar per year for each pole. We have held in a number of recent cases that this amount is not so unreasonable as to justify us in interfering with the discretion of such municipalities. In this case, however, the court below entered judgment for want of a sufficient affidavit of defence. The affidavit in question contains this averment:

"The said Western Union Telegraph Company avers that the sum sought to be recovered in this cause pretends to be imposed and is sought to be justified as a license tax merely in aid and as part of, a police regulation of the city of Chester, and, as such, is unjust and unreasonable in that the amount thereof is wholly disproportioned to the usual, ordinary or necessary expense of municipal officers, of issuing licenses, and other expenses thereby imposed upon the municipality of the city of Chester, but is, on the contrary, largely in excess...