Meyersdale Borough v. Somerset Telephone Co.

Opinion by

Kephart, J.,

This is an appeal from an order of the court fixing the license fee to be collected by the Borough of Meyers-dale for the inspection and regulation of poles and wires erected on the streets of the municipality. The order was made under the authority of the Act of April 17, 1905, P. L. 183, and its amendments. The legal principles discussed by the appellant have been frequently passed upon by this court and the Supreme Court and it is unnecessary to again discuss them. The borough cannot, under the guise of a police regulation imposing a license fee, collect a tax for borough purposes.

There are about five hundred and eighty poles in Meyersdale. The ordinance fixed a fee of fifty cents per pole and fifty cents per mile of wire and required three weekly inspections of the poles and wires. The court reduced these charges to a fee of twenty cents per pole, and held that the poles and wires need not be inspected regularly more than two or three times a year, and specially after each severe wind-, rain-, or snowstorm. From the evidence the court did not abuse its discretion in determining the reasonableness of the inspection provided in the ordinance. The lower court finds: “The mere fact that the ordinance imposes certain duties upon the policemen does not enable the borough to collect from the telephone company the amount designated in 'the ordinance. There is no evidence in the case that sustains the position of the borough that an inspection of the poles and lines in the borough was required to be made three times each week. As well might the borough have said that such inspection should be made three times daily and then put on enough policemen to make the inspection.' It had required an inspection to be made by a policeman three times a week, and under the testimony of the policemen and other witnesses for the borough, it shows that it required about two days to walk along the lines of all the companies in the borough in order to look at the poles and wires. Thus the triweekly inspections would take the whole of a policeman’s time and what good would be accomplished? It sounds as though the borough was apprehensive that the poles and wires which were sound and in proper place on one day would bn the second day thereafter likely be decayed or out of position or dangerous to the public. Such inspection never was contemplated by the act of assembly. Two or three inspections at most during a year would certainly be sufficient to guard the borough against any claims for negligence in having supervised the poles and wires of the public service corporations within its limits, and particularly as the ordinance provides for special examinations or inspections immediately after any storms.” A provision in an ordinance requiring an inspection of poles and tvires three times weekly in a borough as the basis on which to fix a license fee for a utility company to pay was such an abuse of discretion as to call for the intervention of the court. Considering all the special circumstances that affect a license fee such as this, the cotirt below did not abuse its discretion in fixing the fee at twenty cents per pole. Some of the poles and wires subject to the ordinance carry a high voltage. Their position with respect to other wires carrying less voltage may be such that in the interest of public safety a more particular inspection after rainstorms, high winds and sleet is necessary. The amount necessary cannot be determined with accuracy, but is amply provided for in the fee fixed by the court. It is assumed that the inspection will not be merely perfunctory, but will be an honest effort, to ascertain whether the poles are sound and the wires in proper condition. If this is not done, and the service is not rendered for which the charge is made, the appellant has its remedy.

The decree of the court is affirmed and the appeal is dismissed at the cost of the appellant.