Wisconsin as to telephone companies.80 In a federal case it is decided that an ordinance is void which imposes a tax or rental for the use of city streets, upon the poles of a telegraph company, which has constructed and maintained its lines under a State statute authorizing such construction and operation upon streets and highways of towns and cities upon the prescribed condition and consideration that official messages be immeditely dispatched.81

Commerce Federal Constitution

$109. void continued. A license tax may be void because exacted by a borough which has no charter authority to impose such a tax, or such ordinance may be invalid because not excepting United States telegraphic despatches or those of its officers and agents, or because it is restrictive or prohibitive as to interstate commerce.83 So a municipal legislative enactment may be void which imposes a license tax covering the entire operations of a telegraph company.84

And an ordinance is invalid which

levies a tax pure and simple, sufficiently large to enable the city to collect and lay by a sum to insure itself against possible and imaginary future demands.85 But a borough ordinance imposing a license tax on telegraph poles and wires is not void for the reason that it is not restricted in express terms to poles and wires maintained upon high ways and public property. The court will either presume that such poles and wires. were intended, or will restrict the operation of the ordinance to them.86

§109a.

When ordinance fixing charge for use of streets is in nature of contract. It is held in Kentucky that a charge of a stated sum per annum as compensation for the use of the streets and alleys of a city by a foreign telegraph company, and which is fixed by ordinance before acceptance of such use is rather in the nature of a contract, based upon a consideration, than a license tax. The rule that a State cannot impose any burden upon interstate commerce within its limits under the guise of a license tax does not apply to a case where an ordinance authorizes a telegraph company to use the streets of a city upon the payment of an annual license tax, and such company, after the passage of the ordinance, enters on the streets and constructs its system. Its action in erecting its lines constitutes an acceptance of the terms of the ordinance in the absence of an express disclaimer and the city may waive the company's failure to accept the ordinance in writing, even if such acceptance is required by the terms thereof, the waiver being implied. by acquiescence in the company's acts. The question of the reasonableness of the license charge and of the grant being one for the parties to decide, and the terms having been accepted and acted upon, the company would, in such case, be precluded from claiming that the charge was too high as a compensation for imposing the servitude upon the city; the case is not one of a telegraph company using the streets and alleys of a city before the passing of an ordinance imposing a license tax; nor, there being no discrimination, is such an ordinance void under a State constitution on the ground that municipal corporations are without power to exact license taxes from some and not from others engaged in the same business, the city not having admitted others to use its streets without compensation, and it not appearing but that others may have acquired rights before the adoption of the State constitution.87

§ 109b. When statute authorizing use of streets by telegraph company does not create contract. A general statute which empowers a telegraph company to construct, operate and maintain its lines along and over the public highways and

7 Postal Telegraph Cable Co. v. City of Newport, 25 Ky L. Rep.

635, 76 S W. 159, 8 Am. Elec. Cas. 25.

streets of the cities and towns of the State, or across and under the waters and over any public works belonging to the State does not create such a contract between the State and the company as to create an immunity from rental charges imposed by a city for the use and occupation of its streets under a prior statute giving it entire control of such streets especially so where by the later enactment the State does not resume the control of the streets given by the earlier statute.88

$ 109c. Tax or inspection - Decisions as to.-A borough may impose a license tax for the inspection of telegraph poles and wires, although such poles and wires are on a road owned by a turnpike company.89 And a borough ordinance providing for a license tax on telegraph companies of $1 per pole and $2.50 per mile of wire is prima facie reasonable, when it is shown that at least once a year the chief of police and the street commissioner made a tour of inspection counting the poles and calculating the miles of wire, and that, in addition to this, the officers of the police department, in connection with their other duties, kept a constant lookout for poles that might be in a dangerous condition and for wires that might be down, and when they found them in that condition reported it to the proper company." But in an action against a telegraph company to recover a license tax on telegraph poles and wires, the company may show that the municipality has made no inspec tion, and has neither paid out any money nor incurred any expense for that purpose, and that the fee is grossly disproportioned to the amount of any expense that might have been reasonably and fairly incurred for the most careful, thorough, and efficient inspection and supervision possible, and for all measures and precautions that could be required to be taken by the municipality for the safety of its citizens and the public.91 Again, the liability of a borough for injuries occasioned by the defective or bad condition of telegraph poles and wires

90

88 City of Memphis v. Postal Teleg. Cable Co., 145 Fed. 602, revg. in part 139 Fed. 707.

89 Borough of Norwood v. Western Union Tel. Co., 25 Pa. Super. Ct. 406.

90 Kittanning Borough v. Western Union Telegraph Co., 26 Pa. Super. Ct. 346.

91 Norwood Borough v. Western Union Tel. Co., 25 Pa. Super. Ct.

406.

within its limits may constitute a reason for inspection thereof by the borough, but it is not such a liability as to justify a recovery in advance of the happening of the injury and thus applies to an unreasonable license fee for inspection.92

$109d. When license fee cannot be imposed for purposes of inspection and as means for raising revenue. An ordinance passed for an unlawful purpose will not be sustained where it appears conclusively that such was its intent and that the purpose stated was not the actual one; and where telegraph companies are doing an interstate business a license fee for purposes of inspection cannot be imposed on them, by municipal ordinance, when the fee is so far in excess of the expenses of inspection that it is plain that the ordinance was adopted, not to repay such expenses, but as a means for raising revenue.93

Additional or double taxation.

License, etc., tax

In many cases wherein a license or privilege or other like tax has been imposed either by statute or ordinance, the fact that such tax would operate as an additional or a double taxation has been an important or a controlling factor. It is doubtless true that no State can add to the taxation of property, according to the rule of ordinary property taxation, the burden of a license or other tax on the privilege of using, constructing or operating an instrumentality of interstate or international commerce, or for the carrying on of such commerce.94 The point was considered in Leloup v. Port of Mobile, 95 where the telegraph company was required, in addition to the privilege tax, to pay taxes to the State,

92 Norwood Borough v. Western Union Teleg. Co., 25 Pa. Super Ct. 406, following Postal Teleg. Cable Co. v. Taylor, 192 U. S. 64, 72, 48 L. Ed. 342, 24 Sup. Ct. 208.

93 Postal Telegraph-Cable Co. v. Taylor, 192 U. S. 64, 48 L. Ed. 342. 24 Sup. Ct. 208.

94 So declared by Mr. Chief Justice Fuller in Postal Teleg. Cable Co. v. Adams, 155 U. S. 688, 39 L. Ed. 311, 5 Am. Elec. Cas. 636, 15

Sup. Ct. 268, 360, but the tax here was in lieu of other State, county and municipal taxes, and was held valid. See also Mayor of New York v. Third Ave. R. Co., 33 N. Y. 42.

95 127 U. S. 640, 8 Sup. Ct. 1380, 21 Am. & Eng. Corp. Cas. 26, 12 Inter. Com. Rep. 134, 2 Am. Elec. Cas. 79, 83, 84. See citations of this case under note to same in § 109 herein.