Shenk and Hackman v. Shenk's Executors.

tion or otherwise in the will that the testator intended to devise a less estate." In this case the testator gave and devised to his grandson, "Samuel Shenk, his heirs and assigns," these two tracts of land. Undoubtedly this was a devise to him in fee. In the recent case of Glean v. Stewart, 265 Pa. 208, a testator made the following devise: "I give and bequeath to my son, James A. Glenn, my homestead farm containing about 55 acres, more or less. I also give and bequeath to my said son, James A. Glenn, my farm known as the William Robeson farm containing 26 acres of land, more or less. I further order and direct that my said son, James A. Glenn, shall not alien, sell, assign, mortgage or in any manner encumber any of the lands or real estate above bequeathed to him by me during his natural lifetime, but the same shall descend to his legal heirs." It was held that this devise gave to the son a fee-simple estate under the Rule in Shelley's Case.

Was the fee subsequently cut down by the provision that, if he should sell, he should give his brothers and sisters the first offer to buy, beginning with the eldest and so on? In the case above cited, Glenn v. Stewart, supra, Mr. Justice Walling, delivering the opinion of the Court, said: "The power of alienation is necessarily and inseparately incident to an estate in fee, and cannot be destroyed by any condition in the grant or devise under which such estate vests. Doebler's Appeal, 64 Pa. 9; Kepple's Appeal, 53 Pa. 211; Jauretche v. Proctor, 48 Pa. 466, 471; Naglee's Appeal, 33 Pa. 89; Reifsnyder v. Hunter, 19 Pa. 41; Walker et ux. v. Vincent, 19 Pa. 369. The contention that the estate in James A. Glenn is reduced to one for life by the fact that the restriction upon alienation continues during his natural lifetime is not tenable. That simply attempts to reduce his power over the property, not his interest therein; while to cut down a fee previously given to an estate for life requires clear and unequivocal language. See Hoopes' Estate, 231 Pa. 232; Kreb's Estate, 184 Pa. 222; McIntyre v. McIntyre, 123 Pa. 239."

The same can with equal propriety be said in the present case. The testator gave his grandson an estate in fee simple, and then attempted to limit his right to dispose of it generally by stipulating that he could only sell to his brothers and sisters if they saw fit to buy, leaving, however, his interest absolute, if they refused to take the real estate at the appraised price. This in my judgment he could not do. "No one can create what in law is a fee and deprive the tenant of those essential rights and privileges" to this real estate "which the law annexes to it." "The testator cannot prevent this legal consequence by any declaration, however plain, of a contrary intention." Doebler's Appeal, supra.

I am of the opinion that the plaintiffs have shown no right which they can enforce in equity or otherwise, and that this bill should, therefore, be dismissed at the costs of the plaintiffs.

And now, December 27, 1919, the following decree is entered, to wit: That the plaintiffs' bill is hereby dismissed at their costs. Bill dismissed.

Court of Common Pleas of Lancaster County

The Borough of Marietta v. The Columbia Telephone Co. (No. 3). Boroughs-Tax on telephone poles-Proper amount of Ordinance fix-ing rate-Acts of April 17, 1905, P. L. 1803, and July 26, 1913, P. L. 1371.

A municipal tax on telegraph, telephone and other poles cannot be imposed for revenue purposes, but only in the exercise of police power to reimburse the municipality for the reasonable cost of inspection.

There can be no recovery of such tax for a period in the past during which there was no inspection by the municipality.

Where a telephone company accepted the rights and privileges to erect poles, etc., granted to it by a borough ordinance subject to the provisions of a prior general ordinance fixing a license fee of fifty cents on each pole, it can successfully defend on the ground that the fee as fixed was unreasonable in an action to adjust the license fees under the Acts of 1905 and 1913.

In this case the annual license fee on all poles of the defendant company in the borough of Marietta, Pa., was fixed at twenty cents per pole.

Petition for the fixing of the annual license fees to be paid by the defendant company to the plaintiff. Trust Book 24, page 8.

Charles T. Workman, for plaintiff.

John E. Malone, for defendant.

Deiember 27, 1919. Opinion by LANDIS, P. J.

On April 12, 1892, the Councils of the Borough of Marietta adopted an ordinance, entitled "An Ordinance relative to levying an annual license on all telegraph and other poles," whereby it was provided "that an annual license of 50 cents per pole shall be paid on all telegraph, telephone, electric light or electric car poles, that may now or hereafter be erected in the Borough of Marietta, Pa., by any person, company or corporation whatsoever, so long as the poles remain in said borough." On November 10, 1896, the Councils also passed an ordinance, entitled "An Ordinance granting to the Columbia Telephone Company, of Columbia, Penn'a, the right to occupy the streets and highways of the Borough of Marietta with poles and wires as may be necessary for conducting its business." Section 4 of this ordinance contained the following stipulation: "Provided that the rights and privileges of this ordinance are granted subject to the provisions of a certain ordinance of said borough, entitled 'An Ordinance relative to levying an annual license on all telegraph and other poles,' enacted. into an ordinance by said borough on the 12th day of April, A. D. 1892." On January 4, 1897, notification was given to the secretary of the borough by the president and secretary of the Columbia Telephone Company that the company had accepted the rights and privileges granted to it.

On March 1, 1919, the defendant company presented its petition to this court, praying that the amount should be determined of annual license taxes or fees which should be paid to the said borough in order

VOL. XXXVII, No. 48

The Borough of Marietta v. The Columbia Telephone Co. (No. 3). to properly compensate it for the necessary cost of services performed. The proceeding must be considered under the Act of July 26, 1913, P. L. 1371, which is a supplement to the Act of April 17, 1905, P. L. 183, though the latter Act only is named in the petition. Section 1 of this amended Act provides: "That whenever hereafter any dispute shall arise between any township, city, borough, or other municipal corporation of this state, having authority under the law to charge a license fee against any telegraph, telephone, light, power, street passenger railway, motor traction, gas, or water company, occupying the highways of such municipality with its poles, wires, conduits, or cables, as to whether or not the amount of license fee, named in any ordinance of said municipal corporation, for the inspection and regulation of the said poles, wires, conduits, or cables, under its police power, is or is not reasonable, either party may apply, by petition, to the Court of Common Pleas of the county where said municipal corporation is situated, to determine the said dispute." It then provides that, upon the filing of the petition, the Court shall issue a citation, to which the respondent shall make answer within the time fixed, and that, upon application of either party, the Court shall fix a date for the hearing of the issue raised, and shall take evidence and decide the said dispute in the way and manner provided by law for the hearing of cases in equity. Section 3 of the same amended Act provides: "The said Court, in its decision of said dispute, shall determine the amount of annual license fees which should be paid to the said municipal corporation 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, wires, conduits, cables, pipes, or mains of the said telegraph, telephone, light, power, street passenger railway, motor traction, gas, or water company; and the amount thus determined shall be the maximum sum which the said municipal corporation shall be authorized to charge as license fees against such petitioning corporation."

The Court thereupon fixed a time for the hearing of the parties, and from the evidence there adduced the following as well as the foregoing facts are found:

FINDINGS OF FACTS.-The petitioner is a corporation duly organized and existing under the laws of the State of Pennsylvania, and the Borough of Marietta is a borough situated in the County of Lancaster and duly incorporated under the laws of the said state. Since the year 1897, the defendant company has erected and maintained in the said borough 131 poles, upon which it has strung its wires, and on which also the Electric Light Company has a pair of wires. In an alley running east and west, between Front and Market Streets, in moist ground, there are 64 poles. In an alley running east and west, between Market and Fairview Streets, there are 52 poles. In a short alley where the telephone exchange is located there are 2 poles. On Mulberry Street there are 8 poles, and on Mount Joy Street, 5 poles. All of the poles are set in loose ground. Some of them are two months old, others fifteen years old; but all of them have been replaced within twenty years. Poles which are so used begin to decay at the ground or air

The Borough of Marietta v. The Columbia Telephone Co. (No. 3). line, and in order to inspect them, it is customary to dig from three to six inches around them, and then, in case of necessity, penetrate the pole with an iron rod. Companies of this character usually inspect their poles once a year, and in so doing from one to three men are employed, according to the circumstances. An inspection such as this takes from three to fifteen minutes per pole, also according to the cir

cumstances.

The Borough of Marietta has a High Constable, whom it pays $40.00 a year; but his duties are to act as janitor, and he has nothing to do with the inspection of poles. So, likewise, the Councilmen are paid $5.00 a year, but no such specific duties are imposed upon them. In fact, the poles and wires have never been inspected by the borough, though, on one occasion, a Councilman called attention to a bad pole.

Some question was raised as to the installation of the Duplex cross-arm system on the poles. It is, however, testified by the foreman of outside construction and maintenance that the company no longer used this system. He said: "We have got away from the Duplex altogether." As this testimony was not contradicted, we find it as a fact, and therefore it need not be considered in the present controversy.

CONCLUSIONS OF LAW. It is unnecessary at this time to discuss the constitutionality of either of the above-mentioned Acts. The Act of 1905 has been passed upon again and again by both of our Appellate Courts, and its legality may now be fairly assumed. It is conceded that a municipal government has authority, in the exercise of its police power, to exact a reasonable license fee for telegraph and telephone poles erected along its highways; but a license fee cannot be imposed upon the poles and wires of such companies for the purpose of raising revenue. It must be a police measure, to defray the cost of inspection. The Act of Assembly is merely a statutory method of ascertaining what is a reasonable sum to compensate the municipality for the necessary cost of services performed or to be performed for the inspection and regulation of the poles and wires of the petitioning company.

In Postal Telegraph Co. v. City of Lancaster, 26 LANC. LAW REVIEW 121, this Court held that a municipal tax on telegraph poles cannot be imposed for revenue purposes, but only to reimburse the municipality for the reasonable cost of inspection and notifying the company of defects. See, also, In re Petition of Postal Telegraph Cable Co., 25 LANC. LAW REVIEW 212.

It is, however, urged that, in Cochranton Borough v. Cochranton Telephone Co., 41 Sup. 146, it was held that, "where an individual is granted the privilege of using the streets of a borough for the construction of a telephone line on condition that he complies with the terms of an earlier general ordinance imposing an annual license fee of one-half dollar on each pole, and the grantee accepts such privilege, he is bound to pay the license tax," and that, in an action to recover the same, the corporation can raise no question as to the reasonableness of the fee, nor is it entitled to a hearing under the Act of 1905, inasmuch as it is bound by its contract to pay the amount prescribed by the general ordinance. Assuming that it was the intention of the Superior The Borough of Marietta v. The Columbia Telephone Co. (No. 3). Court to go to the length to which it appears to have gone in the case above recited, that conclusion has, we think, been modified in subsequent cases. In Johnstown Telephone Company v. Ferndale Borough, 47 Sup. 461, the borough set up in its answer to a similar position that the company, when it accepted the privileges of using the streets with its wires and poles, agreed that it should be "governed by all the legal ordinances of a general nature now in force or that may hereafter be enacted." Thereupon the Court below dismissed the petition, without taking testimony, on the ground that the company was bound by the ordinance. On appeal, this judgment was reversed, and it was decided that the company could not be deprived of its right, under the Act of 1905, to have the reasonableness of the tax determined. In Norwood Borough v. Keystone Telephone Co., 64 Sup. 261, it appeared that the telephone company obtained the consent of the borough to erect poles and wires in the streets of the borough in consideration of the payment of "the charges authorized by law and ordinances now in force." At the time the consent was given, an ordinance had been previously passed, imposing a fee of one dollar per pole and two dollars and fifty cents per mile of wire. It was held that the telephone company could, in an action against it for the license fees, successfully defend on the ground that such fees were unreasonable, and therefore void, and that the company, prior to the suit, had filed a petition under the Act of April 17, 1905, for the purpose of having the license fees in question adjusted according to law. In Bell Telephone Co. v. Hazleton, 67 Sup. 264, it was decided that "the rule is established 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 such companies, should be the measure of the annual license fees imposed upon such structures maintained within the municipal limits"; and in Meyersdale Borough v. Somerset Telephone Co., 68 Sup. 385, it was held that "where an ordinance of a borough fixes a fee of fifty cents per pole and fifty cents per mile of wire to be paid by a telephone company, and requires three weekly inspections of the poles and wires, the Court will reduce the fee to twenty cents per pole, and will require that the poles and wires need not be inspected regularly more than two or three times a year, with a special inspection after each severe wind, rain or snow storm." In Delaware and Atlantic Telegraph and Telephone Company's Petition, 224 Pa. 55, it was said that, "if there be no inspection or supervision by the municipality, there can be no license fee imposed, because under such circumstances no expense will be incurred for which the statute makes the company liable." See, also, Kittanning Borough v. American Natural Gas Co., 239 Pa. 210.

The case of Valley Rys. v. Mechanicsburg Borough, 265 Pa. 222, is not in point. Mr. Justice Walling, in delivering the opinion in this case, points out the distinction between that of Cochranton Borough v. Cochranton Telephone Co., supra, and the later cases, and adds: "However, it is a matter over which the Courts have jurisdiction and any municipal action relating thereto which is clearly arbitrary or oppressive will be declared void," and that the charge stipulated for in