Bell Telephone Co. v. Hazleton

Opinion by

Portee, J.,

The plaintiff company presented a petition to the court below praying the court to “determine the amount of annual license fees which should be paid to the City of Hazleton in order to properly compensate it for the necessary cost of the services performed, or to be performed, by it, for the inspection and regulation of the poles and wires” of the petitioner, under the provisions of the Act of April 17, 1905, P. L. 183. The city filed an answer to this petition and upon the hearing of the issue thus raised evidence was taken and the court, after consideration, entered a decree fixing the amount which the city should be permitted to charge as a license fee at twelve cents per pole. The city appeals from that decree.

The legislature, by the statute in question, established the rule, to guide the courts in determining disputes of this character, that the cost of the services performed, or to be performed, by a municipality in the inspection and regulation of the poles, wires, conduits or cables belonging to the public service corporations to which it referred, should be the measure of the annual license fees imposed upon such structures maintained within the municipal limits. The cost of the service is the controlling factor in determining disputes between the parties. This must be accepted as settled by the decision of the Supreme Court in Delaware & Atlantic Telegraph & Telephone Co.’s Petition, 224 Pa. 55, which decision has been uniformly followed by the decisions of this court, of which it is sufficient to cite Nanticoke Borough v. Bell Telephone Co., 47 Pa. Superior Ct. 184; New York, Etc., Telephone & Telegraph Co. v. Coudersport Borough. 49 Pa. Superior Ct. 46; Monessen Borough v. Central District Telegraph Co., 51 Pa. Superior Ct. 452; Dormont Borough v. West Liberty Street Railway Co., 64 Pa, Superior Ct. 562. Reasonable latitude must be allowed municipalities in dealing with this subject, but on the other hand they should not be presumed to make useless and unnecessary inspections at the cost of the operating company. Each case must be determined upon its own peculiar facts, as disclosed by the evidence. The presiding judge of the county wherein such a proceeding is instituted has much and important knowledge concerning men and conditions that appellate courts cannot and do not possess. Hence the wisdom of that policy which requires us to accept his findings of fact as having the same conclusive force and effect as would a verdict of a jury, save only in- cases of manifest and flagrant error on the part of the trial court: Pittsburgh & Allegheny Telegraph & Telephone Co. v. Braddock Borough, 43 Pa. Superior Ct. 456. In the present case many of the assignments of error relate to findings of, fact by the learned judge of the court below. A careful examination of the testimony has satisfied us that the court found no fact without testimony to support it, and we are, therefore, unable to sustain any of the assignments alleging error in such findings.

The court found, in substance, that the lines of the plaintiff company were constructed of the best materials and were carefully maintained; that, they were regularly inspected by the company, and that the company had installed a device which gave immediate notice of any defect in the lines. There seems to have been no neglect of duty upon the part of the company. There was no evidence which would have warranted' a finding that, owing to the character of the soil or the condition of the streets, the poles and wires of the company were insecure and required unusually careful inspection. The city did not maintain a distinct organization to exercise the duty of' inspection, supervision and regulation of the poles and wires within its limits. These duties were- performed through its ordinary police force, street commissioner and engineer. A municipality may, it is true, impose a license fee for the cost of services performed by its police force, or other officers, in inspecting, supervising and regulating the appliances of public service companies installed in its streets, in connection with their other duties. It was for the services of such officers, in exercising general supervision of the lines of the plaintiff company, that the court below found that the city should be permitted to charge a license fee of twelve cents for each pole of the plaintiff company. The evidence indicated that the services which the city had performed, or which it had given any indication of an intention to perform, would not involve the expenditure of any considerable sum of money. The evidence, taken as a whole, was strikingly similar to that which was considered in the case of Nanticoke Borough v. Bell Telephone Co., supra, in which a license fee at the same rate fixed in the present case was sustained. We are not convinced that the decree of the court below was erroneous.

The decree is affirmed and it is ordered that the appellant pay the costs.

Orlady, P. J., and Henderson and Kephart, JJ., dissent.