Philadelphia v. Telegraph Co. all taxes upon the value of said poles and wires as included in and represented by its capital stock, and upon the gross receipts derived from the use thereof and further, that it had accepted the act of Congress, approved July 24, 1866, and that the poles and wires in question were principally employed and operated in the transmission of messages between the different States, and were instruments of commerce; that the charge upon the wires and poles in question produced an amount that was more than ten times the cost of regulating and supervising the said poles and wires and issuing licenses therefor, and would produce revenue to the city, and was hence void as an exercise of the police power, and invalid for the reason also that it was a regulation of interstate commerce. The court made the rule for judgment absolute, and judgment was entered for the amount claimed, with interest, less the credit allowed. These ordinances were before the court in the case of W. U. Tel. Co. v. City of Philadelphia, 22 W. N. C. 39, and there sustained. No point was made as to the lack of power to impose the license fees in question upon the defendant company upon the ground of its being engaged in interstate commerce, nor was any federal question raised, nor did the point arise in the case of Chester v. Telegraph Co., 148 Pa. St. 120, for the reason that that company operated entirely within the State of Pennsylvania. The point appears to have been alluded to in the case of Allentown v. Telegraph Co., 148 Pa. St. 117, though not referred to in the opinion of the court, and probably not pressed. It was attempted to be raised in the case of City of Chester v. W. U. Tel. Co., 154 Pa. St. 464, but not decided by this court by reason of the defective character of the affidavit of defense. John R. Read, Silas W. Petit and H. B. Gill, for appellant. New Castle v. Electric Company. Chester N. Farr, Jr., E. Spencer Miller, Asst. City Sol., and Charles F. Warwick, City Sol., for appellee. Per CURIAM: We find nothing in the record that would justify us in sustaining either of the assignments of error. There was no error in entering judgment against the defendant company for want of a sufficient affidavit of defense. Judgment affirmed. NOTE.-See note to Grand Av. Ry. Co. v. People's Ry. Co., post. NEW CASTLE V. ELECTRIC COMPANY. Pennsylvania County Court, Aug. 12, 1895. (16 Pa. Co. Ct. R. 663.) ELECTRIC LIGHT.-MUNICIPAL LICENSE FEE. Municipal license fees may be collected in an action of debt against electric companies in default of their payment, although the ordinance imposing such fees provides in specific terms only for a penalty in case of default. A contract entered into between a municipal corporation and an electric light company for the lighting of its streets carries with it the implied right to erect the necassary poles and wires in the streets for the purpose of carrying out the contract; and the city can impose no tax or license fee on any poles or wires used exclusively for such purpose. Such tax or license fee may be imposed upon poles or wires not so exclusively used. Cases of this series cited in opinion, appearing in bold faced type: W. U. Tel. Co. v. Philadelphia, vol. 2, p. 98; Allentown v. W. U. Tel. Co., vol. 4, p. 90; Chester v. W. U. Tel. Co., vol. 2, p. 93. A. W. Gardner, City Solicitor. Dana & Long, contra. WALLACE, P. J.: This action comes before the court on a motion after judgment for want of sufficient affidavit of defense. New Castle v. Electric Company. The city of New Castle passed an ordinance entitled "An ordinance providing for the licensing of telegraph, telephone and electric light poles and wires, and collecting of an annual license tax therefor," which ordinance was approved by the mayor on the 30th day of March, 1892. The defendant company being a chartered corporation doing business in the city of New Castle, caused to be erected therein a large number of poles and many miles of wire. The ordinance provides for an annual license tax of fifty cents on each pole and one dollar for every mile of wire; also a penalty for failing to take out said license. The defendant corporation failed to take out said license as required by said ordinance, and refused to take out the same or pay the said license tax. The plaintiff thereupon brought this suit in this court and filed its statement of claim, which statement claims defendant is indebted to plaintiff for the license tax on the poles and wires as aforesaid, in the sum of $939, being tax on 570 poles at 50 cents each and 27 miles of wire at $1 each mile or fraction thereof over a mile, for the years 1892, 1893, 1894, and makes the ordinance part of said statement. The defendant files its affidavit of defense and alleges in substance that the city cannot maintain this action for the following reasons: 1st. Ordinance does not provide for action of debt. 2nd. Ordinance only provides for penalty. 3rd. City has no power or authority to pass said ordin ance. 4th. Ordinance is void, because it contains more than one subject. 5th. Action can only be maintained for two years. Defendant claims that plaintiff cannot maintain this action for the reason of a certain contract entered into between the plaintiff and the defendant, whereby the defendant was to furnish and is now furnishing the said plaintiff with electric lights to light said city, and by New Castle v. Electric Company. reason of said contract the said city cannot maintain this action against defendant. Also, said tax is unreasonable. In considering this case, reasons 1, 2, 3, 4 and 5 can be considered together. True, the ordinance only provides in specific terms for a certain penalty, and does not in so many words provide for action of debt, yet our courts have frequently held that such a license can be collected in an action of debt. We do not think it necessary to discuss the principles and questions brought forth by each of the questions raised in the above reasons, but following the rule laid down by our Supreme Court in Western Union Telegraph Company v. Philadelphia, 22 W. N. C. 39, which appears to rule each of these questions, we next go to the case of Allentown v. Western Union Tel. Co., 148 Pa. 118, where the same principles are fully discussed and the case first named followed. Also, we have the case of Chester v. Western Union Tel. Co., 154 Pa. 466, where the same doctrine is laid down. And that leads us to the last case reported, the case of Philadelphia v. American Union Tel. Co., Adv. Rep., where the same doctrine is laid down by a per curiam opinion, and that opinion was very short. From the principles laid down in the cases cited we are led to the conclusion that under the law the city has a right to collect such license in an action of debt; that the fact of the ordinance only providing penalty does not hinder or bar the action in debt. Hence we find no merit in the statement that the city has no authority, neither do we find any merit in the reason that the ordinance is void for the reason of its containing more than one subject. The object of the title is to give notice of the contents of the bill or ordinance. The title to this ordinance clearly indicated the contents of the ordinance and hence is regular and constitutional. The defense, that an action can only be maintained for tax within two years, can not New Castle v. Electric Company. be sustained for the reason that this is a question in debt and not a penalty, and hence can be collected, if at all, for a period of six years. These propositions, as well as the defense that the amount is unreasonable, have been fully discussed and ruled in the cases above cited, and we cannot in this action give any weight to them, and so far as those reasons are concerned, judgment ought to be entered for want of sufficient affidavit of defense. That brings us to the next element of defense in this case, to wit: the contract with the plaintiff to furnish electric lights for the city. A contract was made by the Electric Illuminating Company of Chicago, Ill., with the city of New Castle for the furnishing of a certain number of electric lights for the purpose of lighting the city of New Castle. This contract was assigned to the New Castle Electric Company, the defendant. Additional or supplementary contracts were signed by both parties, whereby the said Electric Company was to furnish electric lights to the said city, at a certain price per annum; that said company was granted the right to erect poles and wires for the purpose of lighting said city; that the contract stipulates that said poles and wires were to be erected and maintained subject to the police regulations of said city and under the supervision of the city engineer. As we understand the law, where a party makes a contract to do a certain thing for another, which contract requires the use of that party's property, and the party owning the property having knowledge of what use the contract would require of his property, and with such knowledge signs said contract, he gives his implied consent to the rightful use of such property for purpose of said contract. In other words, when the city of New Castle entered into the contract with the defendant in this case for the furnishing of light for the said city, and signed the contract for the same subject to the supervision of the police department of the city or the city engineer, they |