
    The City of Philadelphia, Resp't, v. The Postal Telegraph Cable Co. et al., App'lts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed December 16, 1892.)
    
    1. Constitutional law—Telegbaph companies.
    A city’s right to impose license fees on the poles and wires of a telegraph company within its limits, is not in conflict with the U. S. statutes in relation to telegraph companies, or with the provisions of the constitution in regard to interstate commerce, or deprivation of property without due process of law.
    2. Same.
    The ordinance of the city of Philadelphia, under which such charges were made, clearly showed that the charge was not a tax, but merely an exercise of police power by the city to reimburse itself for expenses incurred in discharging its duty, and, therefore, it was valid, although if a tax it would have been invalid by the law of Pennsylvania.
    3. Same.
    The amount of the license fee. in such cases, rests with the city council in the first instances and it is only when such discretion has been abused that the courts are justified in interfering.
    Appeal from a judgment entered upon the report of a referee in an action to determine the ownership of certain telegraph poles affected by an ordinance of the city council of Philadelphia.
    
      B. S. Guernsey, for app’lts;
    
      William Me Michael, Gliarhs F. Warwick, City Sol., and E. Spencer Miller, Asst. City Sol, for resp’t.
   O’Brien, J.

This action was brought by the city of Philadelphia to recover several annual license fees and charges imposed by city ordinances upon each telegraph pole and mile of wire in the streets of Philadelphia. The defendants conceded that plaintiff has power and authority to make and prescribe ordinances for the inspection and regulation of telegraph lines within the city limits, but denied that it has either power or authority to require the payment of any fee or charge therefor, or to charge for a license, or to make any special tax upon their property, or upon each pole or wire permitted within the city limits. This restricts the contention to the question whether a charge for such regulation and inspection is valid, and whether such a charge is an interference with the interstate clause of the United States constitution, or with the rights conferred on telegraph companies by the United States Revised Statutes, § 5263, relating to telegraph companies and the postoffice service. The appellants contend that such a tax or claim is a restraint upon the instruments of interstate commerce and communication, which is placed solely in the hands of congress by the constitution, article 1, § 8, subds. 3, 18, U. S. Const.; that the United States Revised Statutes, § 5263, grant to any telegraph company complying with certain conditions “ the right to construct, maintain and operate lines of telegraph through and over any portion of the public domain of the United States, over and along any of the military or post roads of the United States,” etc.; and that such a tax would impair and destroy the right thus conferred. In the case of Telegraph Company v. Attorney General, 125 U. S., 530, where the question was as to the right of the state to impose a tax upon the property of a telegraph company within its limits, it was held :

“ That the privilege conferred upon telegraph companies by the Revised Statutes, § 5263, carries with it no exemption from the ordinary burden of taxation in a state within which they may own or operate lines of telegraph.”

And it was further held therein that a tax upon the property owned and used by the corporation within that state

“Is not forbidden by the fact of the acceptance on the part of the company of the rights conferred on telegraph companies by the Revised Statutes, § 5263, nor by the commerce clause of the constitution.”

In the opinion of the court in that case it was said:

“ While the state could not interfere, by any specific statute, to prevent a corporation from placing its lines "along any of these post roads, or stop the use of them after they were placed there, nevertheless the company receiving the benefit of the laws of the state, for the protection of its property and its rights, is liable to be taxed upon its real or personal property as any other person would be. It never could have been intended by the congress of the United States, in conferring upon a corporation of one state the authority to enter the territory of any other state, and erect its poles and lines therein, to establish the proposition that such a company owed no obedience to the laws of the state in wrhich it thus entered, and was under no obligation to pay its fair proportion of the taxes necessary to its support.”

See, also, Telegraph Co. v. Hess, 125 N. Y., 641; 36 St. Rep., 252.

With respect to the question of interstate commerce, urged by appellants as affecting the right of the city to impose the charges, we think the authorities are abundant to show that, whether the charges in question come under the police or the taxing power, they do not offend against the interstate commerce clause. Leloup v. Port of Mobile, 127 U. S., 640 ; Gibbons v. Ogden, 9 Wheat., 203; Railroad Co. v. Miller, 17 Wall., 560; Robbins v. Shelby Taxing Dist., 120 U. S., 489; Telegraph Co. v. Pendleton, 122 id., 347.

Appellants’ further claim, that it offends against the United States constitution, in that it conflicts with the provision of the fourteenth amendment that no state shall deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws, is disposed of by the case of New York v. Squire, 145 U. S., 175.

It will thus be seen that we agree with the conclusion reached by the referee*.

“ That the state has power to impose taxes upon the property of such companies, within the state, under the laws of the state, and that a municipality, under its delegated powers from the state, can impose all lawful burdens upon the property of such companies situated within its corporate limits. Therefore, if these license charges upon poles and wires within the, pity limits should be held or found to be legally imposed by the state, they would not be in conflict with the provisions of this act of congress; or if the municipality, under its delegated power of ‘ regulation’ from the state, or what is commonly known as 1 police power,’ should be found to have the right to make such ordinances, and levy such imposts upon the poles and wires within its corporate limits of a company operating an interstate line, such ordinances and charges would not be in conflict with the act, as being neither on the general business of the company, nor an interference with such interstate business.”

This view is consistent with the principle laid down in the case of Leloup v. Port of Mobile, supra, and kindred cases, which hold that:

“ The property of a telegraph company situated within a state may be taxed by the state as all other property is taxed, but its business of an interstate character cannot be thus taxed.”

It was therein held that no state within which a telegraph company sees fit to establish an office can impose upon it a license tax, or require it to take out a license for the transaction of its business; that the telegraphic communications carried on between different states are interstate commerce, and within the power of regulation conferred upon congress, free from the control of state regulations, except such as are strictly of a police character.

A review, therefore, of the authorities will show that the true construction to be given to the constitution of the United States, and the statutes passed relating to telegraph companies, are consistent with the right of the states to tax the property of corporations within their limits, and to subject them to regulations of a police character, and that the United States constitution and statutes prohibit the states from placing any embargo tax upon business of an interstate character, or interfering with, obstructing, or destroying the working or business of such federal agencies. The record makes clear the fact that the plaintiff in no way, by the charge made, attempted to impose a tax upon business of an interstate character. The appellants, however, insist, if this conclusion should be reached, that the charge was, in effect, a tax which was illegally levied upon the property of the companies, contrary to the constitution and laws of Pennsylvania regulating the riglit and mode of taxation. In his argument he correctly presents the view which the courts of that state have adhered to in construing the method which should be adopted under the laws of that state in levying taxes, viz., upon an ad valorem principle; that is to say, that property is to be taxed at a uniform rate according to its value. If it had been shown that this was a tax, then there could be no question but this principle not having been adhered to in levying the same, would have rendered the charges in suit invalid.

We think, however, apart from the disclaimer of the respondent, it is clear that, in imposing the charge sought to be recovered in this action, the city of Philadelphia in no way intended to place a tax upon the business of the defendant companies, nor to impose a tax upon tl^pir property, but its claim is based upon its right, under police power, to levy such a charge. The validity of license fees or similar charges by a municipality under the police power has been frequently asserted, and, so far as Pennsylvania and this state are concerned, the question must be regarded as settled in favor of their validity. As we have already endeavored to point out, charges thus imposed under the police power, and those imposed for revenue, proceed on an entirely different and distinct principle; and, in cases where supposed police regulations come in question, the test must be whether the end in view is one within the regulative sphere, and whether the means are reasonably appropriate. An examination of the ordinances levying this charge, we think, will leave no room for misconstruction as to their true intent and purpose, showing clearly that such charges were for regulation, and not for revenue. The ordinance of January 6, 1881, which was the first ordinance on the subject, begins as follows:

“An ordinance to regulate the erection and maintenance of telegraph poles in the corporate limits of the city of Philadelphia.

“ Whereas, great inconvenience and annoyance have been occasioned to property owners by the placing of telegraph poles in front of their premises ; and whereas, the lives and property of citizens traveling upon the public streets and highways have been imperiled by the erection and maintenance of inadequate or unsound telegraph poles thereon, so that it has become necessary to establish a system for the proper inspection of such poles and for the regulation of the erection and maintenance thereof.”

And the ordinance of March 30, 1883, begins as follows:

“ An ordinance to regulate the introduction and use of underground conduits, wires and cables for electrical conductors in the streets of Philadelphia,” etc.

These ordinances, and the additional fact proved in the case, that all charges were removed from such wires as were placed underground, will show that the object sought was not the raising of revenue, but the reimbursement, to some extent, of the expense made necessary to the municipality in discharging its duty in furtherance of the public safety and convenience, as well as its co-ordinate duty to the defendants, of protecting their property by a proper regulation and inspection of overhead wires. So far as this state is concerned, the case of People v. Squire, 107 N. Y., 593; 12 St. Rep., 832, is authority for the view “that regulations of the character provided for in said acts are strictly police regulations, such are within the legitimate authority of the legislature to delegate the exercise thereof to municipal corporations. That the right to exercise this police power is a governmental function, which cannot be alienated, surrendered, or abridged by the legislature, by any grant, contract or delegation whatsoever.”

So far as the state of Pennsylvania is concerned, the highest appellate court of that state has twice decided these very ordinonces now brought in question to be valid. Telephone Co. v. City of Philadelphia, 12 Atl. Rep., 144; City of Chester v. Telegraph Co. (Pa., 1892), 23 id., 1070; City of Allentown v. Telegraph Co. (Pa., 1892), id. The description given in these cases of the condition of the streets confirms what the observation of every citizen makes evident, that lives and property can only be protected against the dangers threatened by overhead wires by strict regulation and the most careful inspection. In addition, we are referred to the following cases in Pennsylvania distinctly holding that the plaintiff has power to exercise police regulation over telegraph lines. City of Philadelphia v. Telegraph Co., 2 Wkly. Notes Cas., 455, 460; Railroad Co. v. Philadelphia, 47 Pa. St., 321; Branson v. Philadelphia, id., 332.

It seems to us, therefore, that, with the legal questions disposed of, all that remained was to determine whether the ordinances and the charges made were a proper exercise of the police power delegated to the plaintiff, or possessed by it; and the referee is sustained by the cases to which he refers in his opinion, in holding that whether there has been a proper exercise by the municipality of this power of regulation is to be determined by a consideration of the reasonableness of the terms of the ordinance, and of the charges imposed. This the referee proceeded to do. As to the expense entailed upon the city of Philadelphia, it was shown that, in order to have it thorough and effective, it was deemed essential to require a morning report, called an “ Electrical Report,” to be made by every policeman on duty at night, of whom there are 1,526, receiving a salary of $2.50 per day. In addition, it was shown that the appropriation for the police bureau in 1891 was over $1,000,000 ; for the bureau of fire escapes, over $600,000; and for the electrical bureau, over $140,000; and that these different bureaus were engaged and took part in enforcing the regulations and ordinances in question, in the public interest. It was also given in testimony by the chief of the fire bureau that if the wires were put underground there would be a saving of one fire station, whose expense annually is about the amount of the total charges on all the companies. Upon such testimony, having regard to the extensive area of a city like Philadelphia, and the range of work and expense involved in the regulation of poles and wires, we think the referee was right in holding that, contrasted with the large outlay made by the municipality, the amounts charged the defendants, and sought to be recovered in this action, are reasonable. We think that the supreme court of appeals in the case of City of Allentown v. Telegraph Co., supra, in considering the particular charges in these ordinances, correctly defined the rule of law to be applied, viz.:

“ The amount of the license fee, in such cases, rests with the city council in the first instance. It is only when such discretion has been abused that we are justified in interfering. We cannot say that discretion has been abused in this case, or that the license fee is unreasonable.”

It will thus be seen that we concur with the view taken by the referee as to the reasonableness of the charges imposed on the defendants. Indeed, we might well have allowed this judgment to stand upon the able opinion of the referee, which thoroughly discusses every question that has been presented upon this appeal. It would serve no useful purpose to go over the same ground, refer to the same authorities, and draw the same conclusions as the referee has done. Though the question, in principle, is an important one, we do not regard it as either novel or difficult. An examination of cases in the United States supreme court, and in the highest appellate courts of this state and Pennsylvania, supports the legal principle invoked by the plaintiff ; and the evidence adduced in this case sustains the conclusion of the referee favorable to plaintiff’s right to recover. In our opinion, the judgment should be' affirmed, with costs.

Yan Brunt, P. J., and Barrett, J., concur.  