Keystone State Tel. & Tel. Co. v. Ridley Park Borough

• Decision Date: 09 October 1905
• Docket Number: 15-1904
• Citation: 28 Pa.Super. 635
• Parties: Keystone State Telephone & Telegraph Company, Appellant, v. Ridley Park Borough
• Court: Pennsylvania Superior Court

28 Pa.Super. 635

Keystone State Telephone & Telegraph Company, Appellant, v. Ridley Park Borough

No. 15-1904

Superior Court of Pennsylvania

October 9, 1905

Argued November 21, 1904 [Syllabus Matter]

Appeal by plaintiff, from decree of C.P. Delaware Co.-1902, No. 242 dismissing the bill in case of The Keystone State Telephone and Telegraph Company v. Ridley Park Borough, George C Hetzel et al.

Bill in equity for an injunction.

The facts are stated in the opinion of the Superior Court.

Error assigned among others was in dismissing the bill.

Affirmed.

A. B. Geary and Frank R. Shattuck, for appellant. -- The act of 1876 is unconstitutional: Bradford City v. Pa. & N.Y. Tel. & Telegraph, etc., Co., 26 Pa. C.C. 321.

The highways in the state belong to the commonwealth; the legislature has vested in it the necessary power and authority to vest rights in public corporations to make use thereof, unless that authority is taken away by constitutional provisions: O'Connor v. Pittsburg, 18 Pa. 187; The Danville, Hazleton and Wilkes-Barre Railroad Co. v. Commonwealth, 73 Pa. 29; Homestead Street Railway Company v. Pittsburg & Homestead Electric Street Railway Company, 166 Pa. 162.

The learned court overlooked entirely the provisions of the ordinance providing for payment of $ 200 on failure to furnish service by March 1, 1902, and also overlooked entirely section 10, which expressly provides for what cause a forfeiture will take place: Gas Co. v. DeWitt, 130 Pa. 235.

The right to declare a forfeiture must be strictly reserved: Thompson v. Christie, 138 Pa. 230; Stafford v. Walker, 12 S. & R. 190; Helme v. Phila. Life Ins. Co., 61 Pa. 107; Wills v. Manufacturers' Natural Gas Co., 130 Pa. 222; Westmoreland, etc., Natural Gas Co. v. DeWitt, 130 Pa. 235.

We respectfully submit the act of assembly providing that the permission of the borough shall be by ordinance, the same method is required to revoke that permission: Plymouth Twp. v. Chestnut Hill, etc., Ry. Co., 168 Pa. 181; Minersville Borough v. Ry. Co., 205 Pa. 394; Scranton Ry. Co. v. City of Scranton, 5 Lacka. Leg. News, 250; Archbald Borough v. Carbondale Traction Co., 3 Pa. Dist. 751; Pittsburg, etc., Ry. Co. v. Monongahela City, 12 Pa. Dist. 544; Easton, etc., Ry. Co. v. Easton, 133 Pa. 505.

The Supreme Court in the case last cited emphatically condemned conduct such as the borough threatens in this case. There the city of Easton took the same position that the appellees take here. The city officials threatened to tear up the tracks of a street railway company. In this case the borough officials threaten to destroy the property of a telephone company and thereby deprive many residents of their own borough and of other sections of the country, of telephone service.

When an agreement provides for forfeiture upon failure to comply with certain covenants, provision is not self-operating, but the party claiming the forfeiture must act and exercise his right promptly: Thompson v. Christie, 138 __ Pa. __, 230; Wills v. Manufacturers' Natural Gas Co., 130 Pa. 222; Westmoreland, etc., Natural Gas Co. v. DeWitt, 130 Pa. 235; Mutchler v. Easton, 148 Pa. 441; Drake v. Lacoe, 157 Pa. 17; Lehigh Coal, etc., Co. v. Early, 162 Pa. 338; Lynch v. Versailles Fuel Gas Co., 165 Pa. 518.

Frank R. Savidge with him O. B. Dickinson, for appellees. -- The act of 1876 has been followed for over a quarter of a century. Large and numerous companies have been incorporated under it. In fact, the constitutionality of this act and its amendment of June 25, 1885, has been practically recognized by the Supreme Court in People's Telephone & Telegraph Co. v. Berks and Dauphin Turnpike Road, 199 Pa. 411, and the act of 1876 has been construed in York Telephone Co. v. Keesey, 5 Pa. Dist. 366; Commonwealth v. Penna. Telephone Co., 18 Phila. 588.

It is submitted that the same principles of law under which municipalities may impose upon street railway companies conditions to use of the streets and highways, apply to telephone and telegraph companies: New Castle v. Central District & Printing Telegraph Co., 207 Pa. 371; Pittsburg's App., 115 Pa. 4; Allegheny City v. Ry. Co., 159 Pa. 411; Lewistown Borough v. Tel. Co., 10 Pa. Dist. 562.

The appellant company not having completed the construction of its telephone line on or before March 1, 1902, and not having furnished local telephone service to the borough residents on or before the same date, the injury to the borough by the failure of these two distinct conditions was twofold, and there is perfect and intentional consistency in the separate penalties imposed.

The erection and maintenance of the telephone line after March 1, 1902, without authority from the borough was, per se, a nuisance: Attorney General v. Lombard & South St. Pass. Ry. Co., 1 W.N.C. 489; Lancaster Turnpike Co. v. Rogers, 2 Pa. 114; Stewart's App., 56 Pa. 413; Hartman v. Pittsburg Incline Plane Co., 11 Pa.Super. 438; Plymouth Twp. v. Ry. Co., 168 Pa. 181.

Before Rice, P. J., Beaver, Orlady, Porter, Morrison and Henderson, JJ. Morrison, J., dissents.

OPINION

RICE, J.

This is an appeal from a decree dismissing the plaintiff's bill praying to have the borough and its officers restrained from cutting down, destroying or in any manner interfering with the plaintiff's poles, wires or telephone system. The plaintiff was incorporated under the laws of the state of New Jersey and has complied with the laws of Pennsylvania relative to the registration of foreign corporations.

By ordinance approved September 30, 1901, the borough granted consent to the plaintiff to erect and maintain poles and wires within the limits of the borough, upon terms and conditions thereinafter set forth, which were thereby " declared to be conditions precedent to the vesting of said consent." Amongst these was the express condition, " that local telephone service may be had by the residents of the borough on or before March 1, 1902." Section 8 of the ordinance provided that the plaintiff should within thirty days furnish to the borough a bond in the sum of $ 1,000 conditioned, inter alia, " for the faithful performance of the provisions and requirements of this ordinance, and upon failure of the said Keystone State Telephone and Telegraph Company to complete the construction of the said telephone line as provided on or before March 1, 1902, then the said Keystone State Telephone and Telegraph Company shall forfeit and pay to the said Borough of Ridley Park the sum of two hundred ($ 200) dollars, which amount shall be secured by the bond aforesaid." Section 9 provided that the ordinance should take effect upon the execution by the plaintiff of an agreement accepting the terms and provisions of the ordinance, and upon payment into the borough treasury of the sum of $ 20.00 to cover the expense of enacting and publishing it. Section 10 provided as follows: " In case the said company shall fail to execute the said agreement and to file said bond duly approved by the solicitor or to make payment within thirty (30) days after the approval of this ordinance by the chief burgess, the said ordinance shall become null and void, and all rights and privileges granted to the said company, or now possessed by it within the said Borough of Ridley Park, shall cease and determine." The plaintiff accepted the terms of the ordinance, gave the bond and paid the $ 20.00 and in the last two or three days of February, 1902, began the erection of the poles, which it completed within two weeks afterwards. The wires were not strung until three or four months later. What we shall say relative to the right of the company is to be taken in connection with the fact that it did not complete, nor substantially complete, the construction of the telephone line prior to March 1, 1902, nor carry the construction far enough to render any telephone service whatever to the residents of the borough until about August, 1902. In February, 1903, the borough council passed certain resolutions authorizing the burgess to remove the poles from the highways, whereupon this bill was filed.

It cannot be said that the borough waived strict performance of any condition precedent, or estopped itself to assert the breach thereof. There is no evidence upon which such a finding could be based. The borough did nothing and omitted nothing which delayed the commencement of the work. Shortly before March 1, 1902, the company applied to the council for an extension of time, which was not granted. On March 7 1902, it was notified by the burgess, by telegram and by letter, that its rights under the ordinance expired March 1, and was warned to erect no more poles and to remove those erected. To this notice the company replied by letter dated March 11, 1902, from which we quote: " It is unnecessary, at this time, to present the good and sufficient reasons which exist, as to why our line is not as yet entirely completed, but the construction has been under authority of the permission granted by your borough council. We have made payment for permit to erect our poles, which has been done, and it is not within your power as chief burgess, nor is it within the power of your borough council to revoke this permission. If you will send us a statement specifying any items of damage which your borough has sustained by reason of this line not being entirely completed, we will be pleased to give the matter our attention. We desire it, however, to be expressly understood that whatever is necessary to be done in order to complete our line, we intend to have done and performed. Any attempt on your part, as chief burgess, or on the part of policemen, or other agents, who you may employ for the purpose of preventing this work being done, will be in violation of our rights in...