ERROR TO THE SUPERIOR OOTJRT OF THE STATE OF PENNSYLVANIA.
By an ordinance passed in 1894, the borough of New Hope, Pennsylvania, imposed an annual license fee of one dollar per pole and two dollars and a half per mile of wire on the telegraph, telephone, and electric light poles and wires within its limits. The Western Union Telegraph Company had constructed prior thereto and had since maintained and operated a line ;of telegraph poles and wires through the borough, and this was an action brought in the Court of Common Pleas of Bucks-County, in that State, against the company to. recover license fees for the four years commencing with 1895. The case came on for trial before the court and a jury, and plaintiff put in evidence the ordinance in question, and it was agreed “ between the parties that for the year beginning October 1, 1895, there were seventy-five poles and twenty miles of wire, and for the three succeeding years, beginning October 1, 1896, there were thirty-six poles and twelve miles of wire maintained by the defendant in said borough.” Plaintiff then rested, and defendant offered evidence tending to show that the wires were used as through wires, for the transmission of messages between the different States, and the United States and foreign countries; that the company had no office at New Hope, which it operated itself, but that the Philadelphia and Heading Eailroad Company handled the business there, and transferred it to the Western Union at Philadelphia; that no part of the business that went to or from New Hope went over these lines of wires and poles; and that the local business handed to the Western Union at Philadelphia amounted to from about seven to seven and one half dollars per month. The evidence further tended to show that the cost value of its - lines through New Hope was about $372;. and that the cost of inspection, repairs and maintenance of the plant of the company had averaged for thirteen years one dollar' and forty-nine and one half cents per wire per annum; that since October, 1894, the borough had not expended any money on account of the poles and wires of the company; that its expenditures were for repairing streets, street lamps, moderate’ sums in payment of official services, etc., and that when on holidays the burgess saw fit to appoint a policeman he often called on the constable, who. was generally paid $2.50 per day.. A lineman testified that during those years the borough never did anything, to his knowledge, “ in the. way of inspect-, ing or- repairing or removing or anything else in connection with the poles and wires of those telegraph companies.” Defendant contended that the requirement of. payment of the license fee in question amounted to a regulation of commerce, and that the ordinance was therefore void.
The court left it to the jury to find whether the license fee exceeded what was reasonable under the circumstances. The jury returned a verdict in favor of the plaintiff, and judgment was rendered thereon, which on error to the Superior Court was affirmed. 16 Pa. Superior Ct. Pep. 306. The Supreme Court of Pennsylvania refused to allow a,n appeal to that court.
conceded that the court below correctly stated the result of the decisions of the Supreme Court of Pennsylvania; did not argue that t.he borough of New Hope might not supervise the location of the poles erected to sustain the telegraph wires, require them, to be properly painted, and make such inspection of them as might be necessary to protect public welfare and for the cost of such regulation and supervision impose a reasonable license fee, or in other words, that the municipality might not make a telegraph company repay to it the expense to which it has been put by reason of the said telegraph company’s occupation of its highways. They contended, however, that any license fee in excess of the amount necessary to so reimburse the municipality is unreasonable, and is also a tax upon, and regulation of, the interstate commerce carried on by means thereof, against which the company can be protected by the Supreme Court of the United States.
If the rule adopted by Pennsylvania and put in practice by numerous of her municipalities should be extended throughout that State and other States, the aggregate of the pole and wire tax thus imposed on telegraph companies would exceed all other taxation and exceed the net revenue of the companies. In fact, the total amount of such taxes has now assumed very grave proportions and is yearly increasing, and, inasmuch as the courts of Pennsylvania have imposed no restrictions established by the authorities in respect to such license charges upon other kinds of property or occupations, the telegraph company is helpless, except-in so far as the Federal courts will protect it by establishing some rule to which the municipalities must con-, form.
In support óf this contention and as to how reasonableness of charge should be measured, the briefs cited: Cooley on Const. Lim. 4th ed. § 201; Cooley on Taxation, 4th ed. § 408; Dillon on Mun. Corp. 4th ed. § 768; Lawndry License Case, 22 Fed. Rep. 701; North Hudson Ry. Co. v. Hoboken, 41 N. J. L. (12 Vroom) 71; Taylor Borough v. Postal Tel. Co., 202 Pa. St. 683, 584. That under the guise of the power to regulate, a city cannot exercise a power to tax: State v. Hoboken, 4 Yroom, 280 ; New York v. Second Ave. R. R. Go., 32 N. T. 261; Cincinnati v. Bryson, 15 Ohio, 625; Mays v.' Cincm-nati, 1 Ohio St. 268 ; Dunham v. Rochester, 5 Cowen, 462,
The decisions of this court in regard to the ordinance of the city 'of St. Louis were cited as. not sustaining the claim of the borough of New Hope. St. Louis v. West. JJn. Tel. Co., 148 IT. S. 92, 97, 98, affirming 39 Fed. Rep. 59; 149 IT. S. 465,467; and see also on retrial, 63 Fed. Rep. 68.
The construction and maintenance of telegraph lines within the State of Pénnsylvania having been authorized by the constitution of the State, and the legislature having authorized the construction of. the lines, this authority is' all that is needed, and as the Commonwealth owns the franchise of every highway, no municipal corporation has any power over the highways not delegated by the State. Citing O’ Connor v. Pittsburgh, 18 Pa. St. 18.7-189; Stormfelt v. Manor Turnpike Co., 13 Pa. St. 555-559; Millvale Boro. v. Evergreen Ry. Co., 131 Pa. St. 1-23, 24; Commonwealth v. R. R. Co., 27 Pa. St. 339-354; Case ofPhila. '
The company should not be obliged to provide an insurance or guarantee fund to insure the municipality from damages for which it might be-held liable by reason of the construction and maintenance of the poles and wires, as seemed to be the controlling thought in Chester City v. West. Tin. Tel. Co., 154 Pa. St. 464; Phila. v. Am. Tin. Tel. Co., 167 Pa. St. 406; the municipality cannot be held for such liability, as it cannot exdude the company from occupying the highways under the law of the State. St. Louis v. West. Un. Tel. (Jo., 148 U. S. 92-98; PMla. v. West. Un. Tel. Go., 40 Fed. Rep. 616.
The Western Union Telegraph Company is engaged in interstate commerce, as was decided by this court in Telegraph Co. v. Telegraph Co., 96 U. S. 1; and interstate commerce cannot be taxed by the State. Bobbins v. Shelby Taxing District, Í 20 U. S. 489; Asher v. Texas, 128 U. S. 129 ; Stoutenburgh v. Hen-nick, 129 U. S. 141; McCall v. California, 136 U. S. 104; Brennan v. TitusviUe, 153 U. S. 289. It was held in Le-lo u,p v. Port of Mobile, 121 U.. S. 640, that the Western Union Telegraph Company could not be made to pay a license tax of $245 to the city, citing, also, Crutcher v. Kentucky, 141 U. S. 47; Hannibal db St. J. B. B. Go. v. Husen, 95 U. S. 465 ; Minnesota v. Barber, 136 U. S. 313; Brimmer v. Bebman, 138 U. S. 78; Leslie v. Hardin, 135 U. S. 100; Lyng v. Michigan, 135 U. S. 161.
It is not legitimate under the guise of an exercise of the police power to place a burden upon, and a regulation of, the interstate commerce carried on by the telegraph company. Walling v. Michigan, 116 U. S. 446-460; Bailwa/y Co. v. Illinois, 118 U. S. 557; Leslie v. Hardin, 135 U. S. 100-108; Crutcher v. Kentucky, 144 U. S. 47-59 ; Brennan v. Titusville, 153 U. S. 289-302 ; Brown v. Maryland, 12 Wheaton, 419-444; Welton y. Missouri, 91 U. S. 275-278-281; Leloup y. Port of Mobile, 127 U. S. 640, 645, 658; Postal Tel. Co. v. Charleston, 153 U. S. 692.
contended that. the possession of power by the municipality to inspect and regu-, late the erection and maintenance of poles and wires in its street implies a duty to do so, which duty it is presumed it will discharge, and it is therefore empowered to impose license fees to indemnify it against, or reimburse it for, any expense which may be incident to such supervision and regulation. The fees have not been fixed with reference to the value of the company’s property; located within the municipal limits of the borough, or the amount of its gross receipts. Citing as to this and as to measure of reasonableness of charge, Taylor Borough v. Postal Tel: Oo., 202 Pa. St. 583, 584; Chester City v. West. Un. Tel. Co., 154 Pa. St, 466.
Although the business of company is interstate commerce, and the poles and wires are instruments used in the conduct of the business, such property is not exempt from the police regulations of the.municipality, which, while it cannot exclude the poles and wires from the streets, is required by the public welfare to see that they do not become a menace to the safety of those using, the streets as highways. This case is distinguished from Brown v. Maryland, 12 Wheaton, 419 ; Almy v. California, 24 How. 169,113; Leloup y. Port of Mobile, 121 IT. S. 640.; Brennan y. Titusville, 153 U. S. 589.
There is a distinction between regulating interstate commerce and taxing property engaged in such commerce. State Freight Tax Cases, 15 Wall. 232 ; Pensacola Tél. Co. y. West. Un. Tel. Co., 96 U. S. 1; Mobile v. Kimball, 102 U. S. 691; West. Un. Tel. Co. v. Texas, 105 U. S. 460; Moran v. Mew Orleans, 112 U, S. 69; Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 196 ; Brown v. Houston, 114 U. S. 622; Walling v. Michigan, 116 IT. S. 446 ; Picard v. Pullman Southern Car Co., Ill IT. S. 34; Wabash By. Co. y. Illinois, 118 U. S. 551; Robbins v. Shelby Taxing District, 120 IT. S. 489; Phila. da S. S. Co. v. Penna., 122 IT. S. .326; West. Un. Tel. Co. v. Pendleton, 112 U. S. 341; Batterman v. West. Un. Tel. Co., 121 IT. S. 411; West. Un. Tel. Co. v. Massachusetts, 125 IT. S. 530.
In conclusion the following propositions were submitted :
1. That the proyisions of the ordinance do not constitute an attempt on the part of the-municipality to regulate or imposea burden upon interstate commmerce.
2. That the adoption and enforcement of said ordinance is a lawful exercise of the police' power, with which said borough is vested under the constitution and laws of Pennsylvania.
