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Commonwealth ex rel. Lieberum vs. Lewis.

ORDER..

And now, to-wit, July 21st, 1915, after hearing and upon consideration, the Writ of Habeas Corpus ex parte Christian Lieberum is dismissed, and the Relator is remanded into the custody of Edward Lewis, the Warden of the Allegheny County Jail.

July 23, 1915, an application was made by the Relator to be released upon bail, pending an appeal taken by him to the Superior Court. After hearing, the following ruling was made by

SWEARINGEN, J.—The sole purpose of this Writ of Habeas Corpus was to enquire into the regularity and legality of the proceedings, whereby the Relator is imprisoned. That has been done, and it has been determined that the Relator was lawfully committed and is held in custody for his contempt of the decree of a Court of Equity, the proceedings being regular and in conformity with law. Hence, we had no power to discharge him. This would be true, even if the Court of Equity was a subordinate court, which it is not. Williamson's Case, 26 Pa., 9.

Neither have we any power to admit the Relator to bail, pending an appeal from the decision in this Writ of Habeas Corpus. Accordingly, this application is refused.

Constitution

Constitution-Amendments to.

-Advertisement of Amendments——Changes in Phraseology. “

Before a joint resolution, proposing an amendment to the constitution, can be advertised and printed on the official ballot to be submitted to the people at an election in November said resolution must have been passed twice by the Legislature and advertised, retaining its original substance from the time of introduction until submission to the people, without material alterations or amendments or changes in phraseology.

OFFICE OF ATTORNEY GENERAL

Hon. Cyrus E. Woods,

Secretary of the Commonwealth,
Harrisburg, Pa.

Dear Sir:

Harrisburg, Pa., June 23, 1915.

I beg to acknowledge yours of the 18th, in which I am informed as follows: "Two Joint Resolutions, proposing amendments to the Constitution, were passed at the session of 1913, each purporting to amend section 8 of Article 9.

"Both were duly advertised prior to the last election and again passed at the session of 1915; but in the case of one of the amendmeents there are very material alterations, both in the wording of the proposed amendment and in the purpose thereof.

"Shall this last mentioned resolution, File of the Senate 1406, hereto attached, be advertised and printed on the Official Ballot for the coming November Election notwithstanding the changes in phraseology and purpose mentioned."

I beg to advise you that this last mentioned resolution, File of the Senate 1406, should not be advertised and printed on the Official Ballot for the coming November Election, it not having been twice passed by the Legislature, advertised, etc., as required by the Constitution.

A resolution proposing a constitutional amendment must be passed twice by the Legislature, duly advertised, before it can be submitted to the people, and all resolutions for proposed amendments to the Constitution must retain their original substance from the time of introduction until submission to the people.

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Municipal Corporations

Petition of Telephone Company.

Telephone Company-County Bridge-Rental

License Fee-Jurisdiction-Act of 1905.

A telephone company filed a petition in a court of common pleas, alleging that a schedule of rates fixed by the county commissioners for stringing wires by petitioner on a county bridge constructed for public use was excessive, and praying the court to determine what would be a reasonable fee under the Act of April 17, 1905, P. L. 183.

The county commisioners filed an answer and denied (1) that the schedule was excessive, (2) that the county was attempting to exact a license fee, but averred (3) that the county was seeking to collect a rental and not a license fee, and (4) that the court was without jurisdiction.

Held: (1) that the county was a municipal corporation under the Act of April 17, 1905, P. L. 183, and (2) that the schedule of rates was a rental and not a license fee, and (3) that the court was without jurisdiction, and petition dismissed.

Petition to fix license fee. No. 1277 April Term, 1915. C. P. Allegheny County.

Patterson, Crawford, Miller & Arensberg, for petitioner.
Edward B. Vaill, for County of Allegheny.

SWEARINGEN, J., June 1, 1915.-The Central District Telephone Company filed its Petition, at above number and term, under and pursuant to the Act approved April 17, 1905, P. L. 183, which provides for the determination by the Common Pleas of the reasonableness of license fees, as between municipalities and telephone companies, etc. The prayer was that the Court declare excessive a schedule of rates, adopted by the Commissioners of Allegheny County for use of the County Bridge at Sewickley, and to determine what would be a reasonable license fee in accordance with said Act. Citation was issued to the County Commissioners, who filed an Answer, wherein they denied that the schedule was excessive and denied that the County was attempting to exact a license fee, but averred that it was seeking to collect a rental, and therefore the Court was without jurisdiction. From the evidence we find the following

FINDINGS OF FACT.

A

1. The Central District Telephone Company is a public service corporation, under the laws of Pennsylvania, and is engaged in the business of furnishing telephone service throughout Allegheny County and elsewhere in said State. It has its principal office and place of business in Pittsburgh. 2. Allegheny County has erected a County bridge across the Ohio River at Sewickley, within said County, the same being known as Ohio River Bridge No. 1 of said County of Allegheny. The bridge connects the public highway in the Borough of Sewickley, known as Chestnut Street, with the public highway, known as Narrows Run Extension Road, in Moon Township within said County of Allegheny. This bridge is 1,852 feet 7 inches in length from center to center of end pins of abutments. Its carrying weight is 3,200 pounds per lineal foot. The cost of construction was $547,000, and the cost of right-of-way was more than $30,000 additional.

3. By an Ordinance approved March 15, 1881, the Borough of Sewickley granted the Central District & Printing Telegraph Company, a predecessor of this Petitioner, the right to erect poles upon the several streets of the said Borough. By an Ordinance approved December 4, 1913, the Borough of Sewickley granted the Central District Telephone Company the right to enter upon and use the streets and highways of said Borough, for the purpose of transacting business. This includes Chestnut Street aforesaid. 4. The Central District Telephone Company has never yet occupied any portion of the said Bridge with its telephone appliances. It desires to do so. In order to perform its public duty of furnishing telephone service

Petition of Telephone Company.

within the County of Allegheny and elsewhere, it is necessary that said Telephone Company extend its lines of telephone wires, cables and fixtures over and upon the said Ohio River Bridge No. 1. In consequence, it prepared plans for the crossing of said Bridge, which have been approved by the Commissioners of said County of Allegheny. The proposition is to hang cross-arms under the sidewalk brackets of the Bridge. A messenger wire is to be clamped to these cross-arms, to which rings will be attached, and a 50-pair 19-gauge cable will run through these rings. There will be twenty-eight of these attachments to brackets under the Bridge. Provision is made for three additional cables, when needed. The cables, clamps, messenger wire and rings will weigh about 4,600 pounds, and the cross-arms and straps about 1,680 pounds, or the total weight of the appliances, as at present intended, will be about 6,280 pounds. The evidence shows that the method proposed is up to date. A correct copy of the Petitioner's said plans, marked "Exhibit A," is attached to the Petition and the same is made part thereof.

5. The Commissioners of Allegheny County have established a schedule of rates, according to which the Central District Telephone Company is required to make payment for the use of said Bridge, as follows:

For single wires or twisted pairs of insulated

wires

$20 per annum

$15 per pair per annum $10 per pair per annum

For cables containing 2 or 4 pairs of wires For cables containing 5 to 24 pairs of wires For cables containing 25 to 100 pairs of wires $5 per pair per annum For 5 or more 100-pair cables on one bridge $3 per pair per annum 6. The Central District Telephone Company refused to accede to said rates and alleged that they are unreasonable and made without authority of law. The County of Allegheny averred that said rates are not license fees, but are rentals, which it claims it is entitled to charge for use and occupation of the Bridge.

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The Petitioner contends that the County of Allegheny is a "municipal corporation" within the meaning of said Act of 1905; that the County is only empowered to charge the Petitioner reasonable compensation, and whether that be called "license fee" or "rental" is immaterial, because the thing is compensation for a service; and that the rates adopted are unreasonable and made without authority of law. Consequently, the Petitioner alleges the Court has power under this Act to settle the dispute.

The Respondent contends that the County is not a "municipal corporation" within the meaning of said Act; that it has power to exact the rates adopted "as compensation in the nature of rental for the use of" the Bridge; and that it is not limited to a mere license fee for inspection and regulation. Consequently, the Respondent alleges the Court is without jurisdiction, because the Act of 1905 relates solely to the settlement of disputes relative to "license fees."

It seems clear that the County of Allegheny is a "municipal corporation" within the meaning of the said Act of 1905. The language used does not exclude counties. They must be included, because they are required tc exercise police powers to some extent over County roads at least. Hence, it is a reasonable conclusion that the Act contemplates all municipal divisions of the State, wherein disputes might arise relative to the regulation and inspection, made necessary by the entry of telephone and similar corporations upon public property under municipal control. It is true, counties do not pass ordinances, in the technical sense of the term. But the word "ordinance," as used, means any administrative order which there is power to make. Some townships, those of the second class, do not enact "ordinances," as do boroughs and cities; yet "townships" are expressly included

Petition of Telephone Company.

in the provisions of the Act. In consequence, we must hold that counties are municipal corporations contemplated by the Act aforesaid.

It is evident, that the jurisdiction conferred by this statute is quite limited. The Court is given power to act, only when there is a dispute relative to the reasonableness of "license fees" exacted "for the inspection and regulation of the" appliances of any telephone, telepraph, light or power company, "under its" (the municipal corporation's) "police power." This is a power of government, and under the guise of it nothing in the shape of income or profit can be exacted. All that can be imposed is the necessary expense to which the municipality may be put, in protecting the life, health, comfort and quiet of the public. If, by reason of the entry of a telephone or telegraph corporation upon a highway, the municipality is obliged to assume additional expense for inspection and regulation, it may demand reasonable compensation therefor, which is called "a license fee." All the power the Court has, under this statute, is to determine what is a reasonable license fee for such service. It is of no moment that the Court is required to "take the evidence and decide the dispute" in accordance with equity proceedings. This provision simply governs the procedure, in a matter where the power has already been granted. It in no respect confers jurisdiction to do anything. Is the dispute, which has arisen between these parties, referable to the police power of the County of Allegheny? If it is, there is jurisdiction under this statute to hear and determine the cause; if it is not, the Court is without power to proceed, for it is plain that this proceeding is under the provisions of that Act, and not otherwise.

Under the legislation of this State, the Petitioner has the power to go upon any highway: Act of April 22, 1905, P. L. 294. Therefore it may enter upon this Bridge, because it is a part of a highway. But it is very different from the ordinary highway opened upon the ground. It has been built and must be maintained above the surface. It is an artificial construction, which is limited in carrying capacity and in its life. It is owned by the County, for the use of the public, it is true. The installation of Petitioner's appliances will be to the exclusion of the public, so far as relates to the space occupied thereby. A burden will be added to the Bridge, because it must carry the weight of the appliances. That is not great in the present instance, but in time it may become important, when additions are made. In other smaller bridges it may be very burdensome, and the principle is the same whether the appliances are carried under the traveled way or stretched upon poles above the same. In other words, the Petitioner seeks to use the property of the County for the transaction of its own private business, and in a maner distinct from the use made of the bridge by the public. It is for this special use and occupation of the County's property which the Petitioner ought to pay, and this is not mere compensation for the governmental expense of inspecting and regulating such appliances lawfully upon a highway. In no sense can the claim which is in dispute be termed a "license fee for inspection and regulation." What the County is demanding is compensation for use and occupation of a bridge which it owns, and this is properly defined as "rental." In reaching this conclusion, we are but following the language of the Supreme Court, which is:

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*

"It is correct enough" (to use the term rental) "when applied to the privilege of using a municipal bridge by telegraph and telephone companies, for, as said in St. Louis vs. Western Union Tel. Co., 148 U. S. 92, where the sum exacted was held to be rent: 'It is in the nature of a charge for the use of property belonging to the city that which may properly be called rental. The use made by the company is in respect to so much of its space as is occupied by its telegraph poles, permanent and exclusive. Whatever benefit the public may receive in the way of transportation of messages, that space is, so far as respects its actual use for the purpose of highway and personal travel, wholly lost to the public. To that

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Petition of Telephone Company.

extent it is a use different in kind and extent to that enjoyed by the general public.'

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Point Bridge vs. Pittsburgh Railways Co., 240 Pa. 105.

Thus a clear distinction is made between license fees and rentals by the decisions of the Courts, and that distinction is founded upon principle. They are two different things entirely. The County's right in this instance is not referable to its police power at all. It is one arising out of the fact of proprietorship. Consequently, the dispute is not one within the purview of the Act of 1905, and it follows that this Court has no jurisdiction to determine the same in these proceedings. Of course, the County cannot arbitrarily exclude the Petitioner, either directly or indirectly, by exacting an unreasonable rental. But a remedy for that cannot be had under the provisions of the Act of 1905 aforesaid.

From the foregoing we reach the following

CONCLUSIONS OF LAW.

First. The County of Allegheny is a "municipal corporation" within the meaning of the Act of April 17, 1905, P. L. 183.

Second. Under said Act of 1905, the Common Pleas has no jurisdiction to determine any dispute, between municipalities and telegraph, telephone, light and power companies, except those relating to the reasonableness of license fees for the inspection and regulation of appliances of such companies.

Third. No power has been conferred upon the Common Pleas by said Act to determine what is a reasonable rental, to be exacted by a County from a telephone company for the use and occupation of a portion of a County Bridge.

Fourth. This dispute between the Central District Telephone Company and the County of Allegheny relates to rentals and not to license fees, and therefore the Common Pleas has no jurisdiction to determine the same in this proceeding, which is brought under and pursuant to the provisions of said Act of April 17, 1905.

Fifth. The proceedings should be dismissed at the costs of the Petitioner.

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