the said A. A. Brockway recovered a judgment at law against the said. defendant for the sum of $2,678.90, together with $6.30 costs; the plaintiff in this suit being the assignee of said A. A. Brockway. The plaintiff, in his petition, alleges that at or about the time of the rendition of the judgment in favor of the said A. A. Brockway there was formed a conspiracy by certain citizens of defendant township for the purpose of preventing and delaying the collection of any and all judgments that might be then existing against the township, or thereafter rendered against said township; and that, in pursuance of this conspiracy, and for the purpose of accomplishing the same, the citizens of said township, by various devices, caused such a state of affairs to exist that there were no officers in said township upon whom service of process could be made from the rendition of said judgment in favor of said A. A. Brockway up to and about the time of the filing of the petition in this suit. To this petition the said defendant filed a general denial, and pleads specially that the judgment sued upon became dormant on the 13th day of November, 1881; and that no proceedings have been taken to revive the same; and that any cause of action thereon is long since barred by the statute of limitations of the state of Kansas. To this answer there was filed a general reply. A jury being waived in writing, the case was submitted to the court for trial. The evidence introduced substantially established the allegations of the plaintiff's petition as to the conspiracy. It is further admitted by the defendant as follows: That during the years 1878, 1879, 1880, 1881, 1882, 1883, 1884, 1885, and 1886 a full board of officers of said township was elected, but none of said officers so elected ever qualified or entered upon their offices. On July 12, 1887, township officers were appointed, who qualified on that date; and these were all of the appointments made, except as above set forth, as shown of record. That no officers were elected in said Oswego township, except as above, until November, 1887, when a full board was elected, and qualified on February 24, 1888. It appears that, on the 22d day of November, 1876, the said A. A. Brockway recovered a judgment in the state court for the sum of $2,678.90 and costs; that no execution or mandamus proceeding was had upon said judgment; that on the 15th day of June, 1882, a motion was filed to revive said judgment as dormant, but, as there were no officers of the township, no service was ever made upon any person of this motion. On the 22d day of June, 1882, Brockway's attorneys filed an affidavit for service by publication of said notice of the above motion, and such notice was published for three consecutive weeks in the Parsons Sun. On the 13th day of November, 1882, a motion was filed to revive the judgment upon the notice attempted to be served by such publication notice, which motion was denied by the court on the 18th day of November, 1882. The township appeared specially, and excepted to any order of revivor; and a'case was made and taken to the supreme court, and on the 13th day of June, 1884, the supreme court affirmed the decision of the trial court in refusing to revive said action upon notice by publication of said motion. 4 Pac. Rep. 79. At the February term, 1884, said application to revive said judgment was con

tinued for service, said notice having been issued and returned not served, and so on, from term to term, during 1884, 1885, 1886, 1887; and on the 20th day of February, 1888, said application and motion were dismissed by said plaintiff's attorneys; and on the 5th day of April, 1888, this suit was instituted to recover upon said judgment.

There is really but one question presented. Is the plaintiff barred by the statute of limitation? Section 445, Code Civil Proc., reads as follows: "If execution shall not be sued out within five years from the date of any judgment that now is, or may hereafter be, rendered in any court of record in this state, or if five years shall have intervened between the date of the last execution issued on such judgment and the time of suing out another writ of execution thereon, such judgment shall become dormant, and shall cease to operate as a lien on the estate of the judgment debtor."

It is urged by the plaintiff that this statute does not apply to judg ments against municipalities, because no execution can be issued on such judgments. If such is the case, judgments against municipalities would never become dormant. On this question, in the case of U. S. v. Oswego Tp., 28 Fed. Rep. 55, Judge BREWER, of this court, expressed a negative opinion, and held that the limitation of five years did apply to such judgments, and that a mandamus was equivalent to an execution. With these views of my Brother BREWER this point may rest, although much might, perhaps, be said on the other side of the question. Amy v. City of Galena, 7 Fed. Rep. 163. It must, however, logically follow that, if judgments against municipalities and against individuals alike come under the rule of this statute, a failure to issue a mandamus for five years has the same effect as a failure to issue an execution; i. e., the judgment simply becomes dormant. It must further follow that the judgment creditor, in either case, has a like period of time and like process in and by which he may revive his judgment. Section 440 of the Code of Civil Procedure reads as follows: "If a judgment become dormant, it may be revived in the same manner as is prescribed for reviving actions before judgment." It has been held by the supreme court that a judgment creditor has one year after his judgment has become dormant to revive it, and that such revivor can be made on notice and motion, as contemplated by section 428 of the Code, or by an action at law. Baker v. Hummer, 31 Kan. 325; Angell v. Martin, 24 Kan. 334; Gruble v. Wood, 27 Kan. 535; Kothman v. Skaggs, 29 Kan. 5. So the judgment creditor in this case, having failed to take out a mandamus for five years, had one year thereafter in which to revive his judgment, as before stated. In order to have obtained such revivor by either mode, it was absolutely necessary that he should find the judgment debtor, in order to serve notice or summons on him. Section 428, Code Civil Proc. Suppose the judgment had been against an individual, and he had left the state, or concealed himself, or absconded. Could it be claimed the statute would run during such absence, concealment, etc.? I should say it could not. Section 21 of the Code reads as follows:

"If, when a cause of action accrues against a person, he be out of the state, or has absconded, or concealed himself, the period limited for the commence

ment of the action shall not begin to run until 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 his absence or concealment shall not be computed as any part of the period within which the action must be brought."

It is true, the township of Oswego had not absconded, nor 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 board of county commissioners to have the vacancies filled, under chapter 110, Gen. St. § 12; but in this case it would have been an idle and useless thing to do. The people of the township were united in their determination to defeat the judgments against it; and, even if the board of county commissioners should have 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 that the action of the people of the defendant township, by keeping the offices vacant and thus preventing service of process, did not bar the judgment creditor from maintaining his action after the vacancies were filled. 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 as between citizens of the contending states. Hanger v. Abbott, 6 Wall. 532; Braun v. Sauerwein, 10 Wall. 222; Devereaux v. Brownsville, 29 Fed. Rep. 750; Levy v. Stewart, 11 Wall. 244. My attention has been espe cially called to the case of Amy v. Watertown, (No. 2,) 130 U. S. 320, 9 Sup. Ct. Rep. 537. That case, so far as the conspiracy by the defendant is concerned, for the purpose of defeating service of process, is quite similar to the case at bar. But, so far as diligence by the creditor to save his rights was concerned, the cases are not parallel, nor does the statute of Wisconsin contain the provisions of the Kansas statute suspending the operation of the limitations while the debtor is absconded or concealed. Judgment must go for the plaintiff.

I

CITY OF PHILADELPHIA v. WESTERN UNION TEL. Co.

(Circuit Court, E. D. Pennsylvania. October 28, 1889.)

1. MUNICIPAL CORPORATIONS-TAXATION OF TELEGRAPH COMPANY. The city of Philadelphia is not authorized to tax a telegraph company occupying its streets and could not, even if authorized, tax a company engaged in interstate

commerce.

2. SAME-LICENSES-UNREASONABLE FEE.

An ordinance charging a corporation occupying the streets of a municipality license fees amounting, in all, to $16,000 per annum where the cost of supervising

and controlling the corporation for the protection of property and person had for several years been only $3,500 annually, levies a tax, and the ordinance is unreasonable and 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 on the ground that demands might be made against the municipality on account of the licensee. (Syllabus by the Court.)

At Law. Motion for judgment notwithstanding the verdict on point reserved.

Assumpsit against the Western Union Telegraph Company in common pleas No. 4 of city of Philadelphia, removed by defendant to United States circuit court for eastern district of Pennsylvania, to recover license fees for poles and wire privilege erected in Philadelphia by defendant corporation.

Chas. F. Warwick, City Sol., and R. Alexander, Asst. City Sol., for plaintiff, cited City of Scranton v. Catterson, 94 Pa. St. 202; Wille. Mun. Corp. 927; Ang. & A. Corp. 298-300.

Read & Pettit, for defendant.

BUTLER, J. On the trial defendant presented the following point: "Under the evidence in this case the license fee sought to be recovered by the plaintiff is much more than the cost of the regulation, and excessive-it is therefore unreasonable in law and void-and if you believe the evidence in the case, your verdict must be for the defendant." The point was reserved, and the court submitted the case to the jury under the following instructions: "The city of Philadelphia sues to recover license fees under the ordinance before you. Whether the ordinance is valid or not depends upon the question whether it is reasonable, as respects the amount required to be paid, by the defendant and other similar companies using lines of wire within the city. The city cannot tax these companies, and does not, as declared by counsel, seek to do so. Nor can it prohibit them from establishing and maintaining their lines. but it can subject them to proper regulations and supervision, with a view to the protection of persons and property. It is the duty of the city to prescribe such regulations and conditions, and to exercise such supervision. If it failed in this it would be responsible to citizens who 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 responsibility, and considerable expenditure, and for this the city may demand indemnity and reimbursement. Thus you observe the question is, as before 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 or narrow view, but be treated with fair and reasonable liberality. Turning now to the evidence you must determine whether the ordinance is reasonable." The jury have found for the plaintiff, the point must now be disposed of. It embraces the entire case. The validity of the ordinance, judged by the testimony. The

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 subject; 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 ar tax would be an interference with interstate commerce and thus be an infraction of 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 will enable it to perform its duty, without loss to itself. If the ordinance does no more than this it is reasonable, and therefore valid; otherwise it is not. Does it do more? The question in view if the evidence, (about which there is no disagreement,) is too narrow to admit of discussion. A statement of the facts disposes of it. The experience of several years shows that $3,000 or at the most $3,500 per year is sufficient to cover every expenditure the city is required to make on this account. The ordinance imposes the payment (in round numbers) of $16,000 anly. This is five times the amount required. It seems to follow as a necessary consequence, that the ordinance is unreasonable. It compels a payment annually of about $14,000 in excess of the amount necessary. This is a tax pure and simple. The city cannot collect and lay by a sum to insure itself against imaginary future demands, which may possibly arise. If it properly discharges its duty of control and supervision no such demands can arise. It is responsible alone for vigilance and care in these respects. It may, possibly, at some time, be subjected to expenditure in resisting unjust claims. This judged by the past, however, is not probable. A very trifling annual surplus would vide for it. But as the contingency is remote such provision may well be left until it occurs. The only embarrassment we have felt in reaching 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 us to give their judgments controlling weight, if we could find anything to support them in the testimony before us. Judgment must be entered for the defendant notwithstanding the verdict.

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