Argued March 16, 1933. This case arises out of the same ordinance which was passed upon, and upheld, by this court in Carlisle *Page 50 Mechanicsburg St. Ry. Co.'s App., 54 Pa. Super. 311 (affirmed by the Supreme Court on the opinion of Judge PORTER,245 Pa. 561, 91 A. 959) and by the Supreme Court in Valley Railways v. Mechanicsburg Boro., 265 Pa. 222, 108 A. 629. It is an action of assumpsit for the annual payment required to be paid by Valley Railways to the borough under the ordinance of 1911 (No. 226), for the year beginning March 1, 1931. The point at issue is whether the borough is entitled to recover the full sum of $1,200, or only one-third of that amount, by reason of the railway company having ceased to operate its line within the borough after June 30, 1931, pursuant to approval obtained from the Public Service Commission; in other words, whether the annual payment called for by the ordinance is a lump sum, or is apportionable in proportion to the number of months during which the franchise to operate a street railway line within the borough is actually made use of.
Two other questions might come up for consideration if our decision on the above point were other than it is, viz., (1) whether the certificate of the Public Service Commission consenting to the railway company's discontinuing service and abandoning its line of street railway applied to the line within the borough? and (2) whether under the ordinance in question such abandonment became effective by way of relieving the railway company from payment of said annual sum until the tracks, rails, etc., of its line were actually removed? In view of our decision of the main point involved we shall not discuss these questions.
The charter of railways company's predecessor did not become effective to the extent that it could operate a street railway on the streets of the borough until the latter's consent was obtained. This was granted conditionally by the ordinance of 1900 (No. 133), which was duly accepted by the Cumberland Valley Electric *Page 51 Passenger Ry. Co., under whom Valley Railways operated its line in the borough. This ordinance provided, inter alia, that in consideration of the rights and privileges thereby granted, the railway company "shall pay to the borough the sum of fifty ($50) dollars per annum, said payment to begin two years after the completion of said railway, and to continue for the period of three years, at the expiration of which term the said annual payment shall be increased to the sum of one hundred ($100) dollars, which latter annual sum shall continue for the period of five years, at the expiration of which period the council reserves the right to regulate and determine the future annual payments."
In 1911 the ordinance in question, No. 226, fixed the annual sum thereafter to be paid, in consideration of the rights and privileges granted the railway company, at $1,200. It reads as follows:
"Ordinance No. 226.
"Fixing the annual payment to the Borough of Mechanicsburg, Pa., by the Valley Traction Company, successors to the Cumberland Valley Electric Passenger Railway Company, for the rights and privileges granted in ordinance No. 133.
"Whereas, ordinance No. 133, Sec. 3, provides that, in consideration of the rights and privileges granted in said ordinance to the Cumberland Valley Electric Passenger Railway Company, the said company shall pay annually, for a fixed period of time, a specified sum of money to the Borough of Mechanicsburg; and,
"Whereas, said fixed period of time having expired in February, 1911; and,
"Whereas, the right to regulate and determine the annual payment by said company to the Borough of Mechanicsburg, after said fixed period of time for said specified annual payment shall have expired, is reserved to council by said ordinance, No. 133. *Page 52
"Therefore, be it enacted and ordained by the town council of the Borough of Mechanicsburg, Pennsylvania, and it is hereby enacted and ordained by the authority of the same:
"Sec. 1. That the Valley Traction Company, successors to the Cumberland Valley Electric Passenger Railway Company, shall pay annually, on or before the first day of August, unto the Borough of Mechanicsburg, Pennsylvania, the sum of twelve hundred dollars. This rate to commence with the fiscal year beginning March 1, 1911, and continue until the amount of said annual payment shall be readjusted by ordinance.
"Sec. 2. That said annual payment of twelve hundred dollars be considered solely for the rights and privileges granted in ordinance No. 133, to the Cumberland Valley Electric Passenger Railway Company, and shall in no way preclude or debar the Borough of Mechanicsburg from collecting fines for the violation of ordinances or any act of assembly now enacted or that may be enacted relative to the same or the levying additional taxes for police and street regulations."
We think it is clear from a reading of the material portions of both ordinances that the parties had in mind, and provided for, the payment of a definite — or as the second ordinance expresses it — a specified sum of money, which was to be paid annually, at one time, for the right and privilege to operate a street railway line within the borough; that this amount was not by way of rental for the borough's streets, to be apportioned during the year, for such length of time as the line might be operated, but a fixed amount, payable at the time stated, which was recoverable at one time, if during the fiscal year of the ordinance, or any part of it, the railway company used and exercised the rights and privileges granted by the ordinance. *Page 53 It was so regarded by this court in 54 Pa. Super. 311,312, where Judge PORTER, speaking for the court, referred to "the annual payment of a fixed sum;" and by the Supreme Court in 265 Pa. 222, 225, where the payment to be made under both ordinances was called an "annual charge;" and under the second ordinance, "the $1,200 annual charge" (p. 227). It is the annual charge agreed to be paid by the railway company, or its predecessor or predecessors, for the rights and privileges granted under the ordinance, and it is payable when due, irrespective of the length of time during the fiscal year that the street railway line may be operated, provided the rights and privileges granted under the ordinance were used and exercised during any part of that fiscal year.
The use of the word "rate," in the last sentence of Section 1 of ordinance No. 226 did not have the effect of changing the nature and character of this annual charge to an apportioned charge. It was, we think, here used as a synonym for "amount," or "charge," in which sense it is sometimes employed. In any event, its inclusion in that one sentence, is not sufficient, without more, to change the meaning of "annual payment," as it was used in ordinance No. 133 and reenacted in ordinance No. 226.
The judgment is affirmed.
Judge CUNNINGHAM took no part in the decision of this case.