Contracts — Construction — Municipal corporations — Street railway companies — Motor bus companies — License fees — Taxes — Assessments — Restatement, Contracts.
1. In an action in assumpsit by a municipality to recover unpaid license fees on motor buses operated by the defendant, in which it appeared that a contract entered into between the city and defendant's predecessor, a street railway company, fixing, inter alia, the financial obligations of the railway company to the city, provided, in part, that the company should make certain annual payments to the city which should be in satisfaction of all obligations of the company, and its subsidiary companies, for the paving and repair of the streets occupied by their service lines, and "all license fees with respect to the cars run upon the said streets", and that these payments should be in lieu of the right of the city to impose upon the company, or its subsidiary companies, similar obligations or charges; that at the time this contract was entered into defendant's predecessor operated only street cars; that, thereafter, defendant's predecessor formed a motor bus company; that ordinances authorizing the bus company to operate its buses on designated routes in the city provided that, if at any time a tax or license fee should be imposed upon motor buses for public use in the transportation of passengers, such tax or license fee should apply to the bus company's vehicles; that an ordinance was passed providing for the licensing of motor buses and fixing a license fee, and, thereafter, until the year in question, the bus company paid to the city the license fees; and that defendant's predecessor was re-organized, pursuant to a plan by which the bus company was acquired and merged into it, and the defendant was formed and became the assignee of all the rights and liabilities of its predecessor under the agreement with the city; it was held that the quoted provision of the agreement with the city related to license fees on street railway cars only and not to those on vehicles such as motor buses, and that defendant was liable for payment of the motor bus license fees. [245-57]
2. In such case, the license fees did not constitute taxes or assessments within the meaning of a provision that to the extent that taxes and assessments not upon real estate of the company or its subsidiaries, or dividends provided in their respective charters might be imposed upon the company, the city should credit upon such taxes all payments made under the contract. [255-7]
3. Restatement, Contracts, section 236, cited. [250-51]
Argued May 25, 1942.
PER CURIAM, June 29, 1942:
All that need be said in disposing of this case is contained in the comprehensive and convincing opinion of Judge LEVINTHAL. Upon that opinion the judgment of the court below, entered for want of a sufficient affidavit of defense, will be affirmed.
Judgment affirmed.