CITY OF PHILADELPHIA t1. WESTERN UNION TEL. CO.

615

ment .of actionshn.11 not begin to run nntil he comes' into the state, or while he is so absconded or concealed; and if. after the cause of action accrues, he depart from the state, or abscond or conceal himself, the time of bis absence or concealment shall not computed as any part of the period witbin which the action must be It is true, the township of Oswego had not absconded, nQr been absent.

or concealed; but all of its officers on whom any notice or process could be served were absent, absconded, or concealed during the whole of said period of time, and that with the express purpose of baffling and defeating the creditor in his attempts to revive his judgment. If it had been an ordinary case of vacancy, in office, ,it might be urged that the creditor should have applied to the boarc;l of county commissioners to have the, vacancies filled, under cha:pterllO, Gen. St. § 12; but in this case would have been an idle and useless thing to do. The people of the township were united in their determination to the judgIl1 ents against it; 8.nd, even if thebOll;l"dof county commissioners should havl:\ named persons to fill the offices in said township, they could not have compelled them to qualify or serve. It seems to be a case somewhat ,analogous to a judgment debtor who conceals himself or absconds to prevent service of process; and I have, no hesitation in saying t4e tion of the people of the township, by keeping the offices cant and thus preventing service,of process, did not bar the judgment creditor from his action after tl:le vacancies were filled. I have been unable to find a case exactly in point, .but there are many cases holding that the existence of war suspends the statute of limitation 3R between citizensof,the contEmding states. Hanger 6 532j Br.aun v. Sauerwein, 10 Wall: 222; Devereaux v.BrmJ.m8Vule, 29 Fed. Rep. 750j Levy v. Stewart, 11 Wall. 244. My attention has been especially called to the case of Amy v. Watertown, (No.2,) 130 U. S. 320, Sup. Ct. Rep. 537.. That case, so far as the by the defeIldant is concerned, for the purpose of defeating service of process, is quite similar W the case at bar. But l so far diligence by the creditor to save his rights concerned, cases afe not parallel, nor does statute of 'contain the provisions of the Kansas pending the operation of the limitations while the debtor is absconded or concealed. Judgment must go fo'r, the plaintiff.

CITY

L

OF PHILADELPHIA 11. WESo:ryJRN UNION

TEL. ' Co.

(Owcuft Cou'l't, E. D. Penns1i1JlJanUJ..: Ootobel'

28; 1889.)

Jr[UNIOJP.u. CORPORATIONS-TAXATION OF TELEGRA.PJI CoMPA:NY.

Clbmmeroe; .

I.

The city of Philadelphia is not authorizell to tax a telegraph company its streets and could not, even if authoriZed, tax a company engaged in interState

'

,

B.un-LIOENBIllIl-:-UNREABONJ.BX,B. FEE.

1lcenS8 fees amounting, m

An ol'dinance

8 corporation ocoupying the streets ,of a muJiioipal1ty aU, to 11.6,000 pel' 'annum where the cost of supervising

.

.

.

. "j ,

616

'FEDERAl. REPOBTER"

voL 40.

and controlllng the corporation for, the protection of property and person had for sever.allears Deen only $3,500 annually, levies a ,tax, and the ordinance 1$ unreason, able an void. , ' 8. SAME. , , ;' An ordinance charging license fees to an'amount much greater than the cost of controlling and supervising the licensee cannot be sustained outhe ground that demands might be made against the municipality on account of the licensee.
(SyUabu8 by the Court.) ,

At Law. reserved.

Motion for Judgment notwithstanding th'e

on point

4 of, city of: Philadelphia; removed by defendant to United State!l"circuit court district of Pennsylvania, to recover license fees for poles and wire privilege erected in Philadelphia by defendant corpora.tion. Chas. F.Warwick;CitySol.,and R., Alexander, Asst. City 801., for plaintitt,cited City of 8m'anton v. CatterSdn,94 Pa.St. 202j Willc. Mun. Corp. 927 jAng. & A. Corp. 298-300. Read & Pettit, for :d'Elfendant. '

Assumpsit against the Western Uriion Telegraph Company in common

BU'ri.Ett, 1. 011 tlie trial defendant presented the following point: "trl1der 'the evidence in 'this case the license fee sought to be recovered by the plaintiff is niuch more than the cost of the regulation, and excessive-itis therefore unreasonable in law and void-and if you believe'the evidence in' thecase, your verdict must be for the defendant." 'thepoint'was reserved, and the court submitted the case to the jury under the following 'instructions: "The city of Philadelphia sues to recover licensefees under the before you. Whether the ordinance is valid or n.ot'depends upon the question whether it is reasonable. as respects theamountrequired to be paid! by the defendant ahd other similar companies using lines of wire within: the city. The city cannot, tax these companies, and does riot, as declared by counsel, seek to do so. prohibit and maintaining their lines Nor J?ut can subject them .toproper' and supervision, with a vieW to We ptpperty. It is' the duty of the city to'prescribe such regulations and conditions, and to exercise such in this it would be responsible to citizens who supervision. If it might be injured either in person or property. It is readily seen that the construction and maintenance of these lines subjects the city to serious responFlibility, and considerable expenditure. and for this the city may demand Jnqemnity and reimbtirsement., ' Thus you observe the question is, as b'efore stated, is the ordinance reasonable? The city has power to enact such an,ordinance if its exactions are not excessive. In passing upon the question of excessiveness, the city should not be subjected to a contracted 01" narrow ,view, but be treated with fair and reasOlla bJ(t 'liberality, Turning now to' the evidence you must determine whether the ordinance is reasonable." The jury have found for the pliJ'intiff, the point must now be disposed of. It embraces the entire case.,rrhe validity of the ordinap.ce, j\ldged by the testimony. :The

CITY OF PHtLADELPHIA ". WESTERN UNION TEL. CO.

617

facts were submitted to the jury, for reasons stated at the time-which need not be repeated here. Nor need we enlarge on the charge respecting the parties' rights. There is no controversy on the nor is there room for controversy. The plaintiff cannot tax the defendant,-not only because it is not authorized to do so, but because the state is without power to confer such authority. The imposition of a tax would be an interference with interstate commerce an4 thus be an infraction (If the federal constitution. The plaintiff may and is in duty bound, to subject the defendant, and other similar companies to such proper conditions, restrictions, and supervision, respecting lines within its limits, as are necessary to the public safety, and consequently to such charges as it to perform its duty, without loss to itself. If the ordinance does no more than this it is reasonable, and theJefore valid; otherwise it is not. Does it do more? ThequestiQn in view if the evidence, (,about which there is, no disagreement;) is tOo narrow to admit of discussion. A statement of the facts dispo!,es of it. The experienqe ofseveral, years shows thatl3,OOO or at the most $3,500 per year is sufficient to cover every expenditure the cit'y is required to make on this account. The ordinance imposes the payment (in round numbers)0f$16j.000 annually. This is five times the amount requir,ed. It seems folIqw as a necessary consequence, that the ordinance.is unreasonable'. It ,compels a payment annually of "about $14,000 in excess of the amount necessary. is a tax, pure and simple. The city cannot collect and lay by a SUln to insure itself against imaginaiyfuture demands, which may possibly arise. If it properly discharges its duty of control and supervtsioD 110 such demands can arise. 'It is responsible alone for vigiin these respects. It may, possibly, at some time, be lance and subjected to expenditure in resisting unjust claims. This judged by the past, however, is not probable. Avery trifiingannualstuplus would provide for it. Butaa the contingency is remotesuch provision may well be left until it ocr:urs. The only embarrassment we have relt inl'eaching this conclusion arises from the fact that the state courts-the common "pleas of this city and the supreme court-adopted a different one in previous suits under this ordinance. Our very great respect for these courts would impel ust() give their judgments <!ontrolling weight, if we could find' anything to support them in the testimony before us. Judgment must be entered for the defendant notwithstanding the verdict.

care

FEDJl;RA,L REPQRTER,VOl.
l'

'j ....

40.

FRANCOEUR fI, NEWHOUSE.

<'/i

(Circuit.Oourt, N.D. OaU!orn4a. December 9, 1889.)
Ii-

L',PuBLIO WNDS-GRANT .TOPU:mB.AL PAOIFIO RAIUlO4DCOJl(pANy-GRANT IN 1'R&f!l!;!'iTI. ' , . . '

"The grant of lands to the Central Pacifio Railroad Company to aid in the oon· '8truction of its road, under the act of of. July 1, 1862, and the amendatorx act,of.I8M, is a graJ;lHn prt;88enti, ,wlnch can only be defeated by the failure (to' perform t!J.e oonditionnubsequent; a,nd'appropriate jndicial proceedings to de- ' r ,ciare a fOrfeIture. '; ,, , "
BEPoRlIl PA'rIllNT !s$.tms.

,to,

"

The title Which ves.tB the congressional and, the Pllrformance of the , ,prleaCribed conditions, is' 'alegaJ. title, upon which an actionot ejectment may be :Il!Il8intained befpre the patent i1$8U8S. .,,: .' . (.' '
Oll\ PA'i'JIIN'l'. , "

.i" , '.' " '., '. , · ,

'.,

,: " Tb,e patent issued.under'1;he grant is only a convenient instrument , 'of eVidence that the conditions ha've'beeii'perforlned and the title vested.

8.;

". EW.te-FAtttnm

:., ',. 'nl.,f&l,lure to expense, of: surveying, under section 21 of the act of 1864, ,oni;V prevep,ts'the issue of the 'It.does not prevent the, title attaching un,del" the congressional grant.· ,.,,' " ' ': " '
i. ·

TOPU

ExPENSB

011 s1:mVBY.

,fl'be o'lIDinerallands ffDmtbe 8Tli'nt to the Centl'&lPacUlc Railroad Company, onl;re;x£ends to lI'incls knownto'be mineral,(lf, 8J,>p aren,tlY mineral.,atthe thne when the',grant attabhed; 'and a disoovel't of a gold mlnein the lands after the title p,erformanoe.Qf t1:le;qllnditions,\'I,oeB nQt,defeat the title.

. " .'" '

MINIilBALIi1lalli;,':

"

Go "" , ,

. An 'exception iliserted in apatent,which is not authorized by' the statute to be
· ' : i"

.' "", , " '

,.

'7. S,.W:Il-4-P!.ln:RT ·f(lIiti LAliIDs: AL11111:.UlY JGM'NTIllD"-COLLATlIllUL ATTAOK,

• ' and thet-fJI is no'intetest left ib' the' gO,vernment to grant, the interior, dellartment
  

,II:

Issued

!:leen berofe

> : to ether parties, , '

, .

actsiwithOllt jhrlst\iotion, there;being·nothing in the United States to grant, and the

void,andmay be .\follaterally irnpel.\Ched.

"

.., ,:w81'<lJ51i4l, ente,'l'UvOn,th.e.land and.proepeetfof'gold. . N01'ight. have'noright aftertd otherpal'tles , beinit.iated bya
CliO.

"

,:'["',:"

i,

i

" ' ,

'

. : ';

"1_'

,,.i'

':1

13, town17 ,M .}W': E. Mt. ,m,eridian., :.T1;le plaintitl' claims It is alleged in the complaint that the land is part of an odd-numbered section lying within the 10-mile limit of the grant made to thEl Central Pacific Railroad Company, to aid in the construction of a railroad, by the act of congress passed July 1, 1862, (12 St. 489;) that the said corporation filed its assent to said act l and a'map designating the general route ()f said railroad, ,with the secretary of the interior within two months after the passage of the act; that on August 2, 1862, the secretary of the interior caused all the lands within 15 miles of said route, including the land in question, to be withdrawn from pre-emption, private entry, and sale; that the line of said road was definitely fixed, said road fully constructed and accepted py the president, from the western terminus, to

At LaWt.

')

I'

,

/,;:,;n; r'

".

'I;.. ,.'

i':" 'J

'.

"';"

of lot 52; Qf

"':

"'. ·

'

,