Philadelphia v. Philadelphia Rapid Transit Co. , 228 Pa. 325 ( 1910 )

Opinion by

Mr. Justice Elkin,

The questions raised by this appeal were considered and determined by this court in another proceeding between the same parties about one year ago: Philadelphia v. Phila. Rapid Transit Co., 224. Pa. 544. When the opinion in that case was handed down no dissent was noted and the views therein expressed represent the conclusions of the court. That case rules the one at bar. The court was then asked to construe and did construe the same contract, the same section of the contract, the same proviso, and the same particular words in the proviso, in a similar proceeding between the same parties, involving the rights of the same contracting parties. The question then raised and the issue now presented depend upon the same words in the contract. The findings of fact in the present proceeding do not differentiate the case at bar in principle from the one then decided. The question involved in both cases depends upon the construction of the words "rates of fare” used in the contract, and this question was exhaustively considered by our Brother Stewart, who delivered the opinion of the court in the former case. The court is now of opinion that the decision in that case is conclusive of the questions raised by this appeal. It is argued that the question then presented for determination was the right of the rapid transit company to abolish transfers, and the discussion of other matters relating to the proper construction of the words "rates of fare” should be treated as dicta not binding upon the courts or the parties. It may be that the exact question then raised might have been put upon narrower grounds so as to leave for future determination the broader questions necessarily involved, but the court in reaching its conclusion deemed it necessary to consider broadly the effect of the particular words of the proviso upon which the contentions were then and are now based in order to properly determine the issue then pending. Both cases depend upon the proper construction of the words "rates of fare” used in the contract. The contracting parties failed to define in their written agreement the meaning of these words, and the courts are not at liberty to arbitrarily make a new contract for them or by construction to adopt a meaning not imported by the language used. In ordinary signification a rate of fare is the unit or basic price upon which the total charge is based. In the transportation of passengers by railroads the rate is fixed at so much per mile and the total charge depends upon the number of miles traveled, while in the transportation of freight the rate is usually fixed at so much per 100 pounds and the total charge is calculated upon this basis. In such cases no one would seriously contend that the rate of fare or the freight rate was the total charge determined upon the basis of the miles traveled or the number of pounds carried. In the carrying of passengers by street railway companies the rate is fixed at a flat price per ride, without reference to the distance traveled, and this basic price for a single ride in the ordinary and legal signification of the term is the rate of fare.- A total charge of twenty-five cents for six rides is not a rate of fare either in the etymological or legal sense. No useful purpose will be served by amplifying the discussion at this time because the question was fully considered and disposed of by this court in the case referred to and the conclusion then reached will not be disturbed.

Decree affirmed at cost of appellant.