Monongahela Bridge Co. v. Pittsburgh & Birmingham Railway Co.

Mr. Justice Clark

delivered the opinion of the court,

■ The Monongahela Bridge Company was incorporated under the provisions of an Act, of Assembly, approved 19th March, 1810, [P. L., 101,] for the construction of a “bridge over the river Monongahela opposite the borough of Pittsburgh in the county of Allegheny.” By the provisions of this Act, and the supplementary Act of 17th February, 1816, the company upon the erection of a bridge was authorized to erect gates and to demand and receive tolls in part as follows : — For every carriage of whatever description, used for the purpose of trade or agriculture,.....having four wheels and drawn by two horses, twenty-five cents;”.....“for every carriage of whatever description, used for the purpose of personal accommodation or pleasure,.....having four wheels, and drawn by two horses, fifty cents.”

In pursuance of the charter, and upon the faith of its provisions the bridge structure was erected at the foot of Smithfield street about the year 1820.

By the Act of 13th April, 1859, (P. L., 749,) incorporating the Pittsburgh and Birmingham Passenger Railway Company, and authorizing the construction of a street passenger railway from Fifth avenue and Smithfield street, across the Monongahela bridge, to Bi’ownstown, it was provided as follows:— “ That before the said railway company shall use and occupy any portion of any turnpike, plank road, bridge, or street, or road of any borough, if the said railway company and said turnpike plank road or bridge company, or councils of any borough, cannot agree upon the terms for the use thereof, within thirty days from the organization of the said company, the said company may apply by petition to the Court of Quarter Sessions of Allegheny county, setting forth the facts, and praying the court to appoint a time for the hearing of the parties, not more than twenty dajrs from the filing of the said petition, of which time and place the opposite party shall have at least ten days’ notice; and the court shall immediately, after hearing the said parties, proceed to fix and adjudge the rate of compensation to be allowed and paid by said company for the use of such turnpike, plank road, bridge, or street, and the terms on which it shall be used, and the mode and manner in which the same shall be kept up by the respective parties, which judgment shall be and remain final, and conclusive between the parties.”

The first contention of the company is, that their charter constituted and must now be treated as a contract between the company and the commonwealth, and that the tolls and rates of charge, fixed by the charter, cannot be reduced, or in any way interfered with by the legislature, without the company’s consent, and that upon this ground, the provisions of the Act 13th of March, 1859, already referred to, impairs the obligation of their contract, and to that extent are unconstitutional and void.

But, at the argument, it was shown that the provisions of the Act of 1810 and 1816, so far as they relate to the rates of charge for tolls, were expressly repealed by the further supplementary Act of 18th of May, 1871, providing for the erection of a new bridge, which was accepted by the company; and it was conceded, -that the tolls are fixed by the provisions of the Act last referred to. ^

The Act of 1871 provides, that when the new bridge isopen for travel, the rates for tolls, in part, shall be “ for every carriage, wagon, buggy, or other wheeled vehicle ofwwhatever description, and for every sleigh or sled, drawn by a single horse, the sum of ten cents, and for every additional horse, the sum of five cents.” This Act’ having been passed not only subsequently to the Act of 1859. but subsequentlv. also, to the fourth Constitutional amendment of 1857, it is 'plain that this contention of the plaintiff cannot be sustained.

It is contended,however, that the phrase, “or other wheeled vehicles of whatever description,” used in the Act of 1871, is broad enough, to embrace street ears, and that the company has a right to charge tolls upon them accordingly. It is a conceded fact, that in 1871, street cars in the cities of the commonwealth, were a well known instrumentmf conveyance; for twelve years and upwards they had been extensively used for passeng'er travel over the Monougahela bridge, and, if the framers of the Act of 1871, intended to embrace them within its provisions, it is very remarkable indeed, that they were not specifically mentioned. A street car certainly is a wheeled vehicle in the general sense of that term; it is a vehicle in the same sense that an ordinary railroad car is a vehicle, but both are vehicles of a somewhat extraordinary character; in this respect, that they can only be used a means of conveyance or transportation upon a permanent, continuous and connected track. To pass the railway company’s cars over this bridge, their railway track must be permanently laid upon it, so as to connect with their tracks at either end. In other words the bridge must form part or parcel of the route of the railway. The vehicles which are specified in the Act of 1871 “ carriages, wagons, buggies, sleighs and sleds,” are all of that class which requires no such special appliance to promote their passage, and it is reasonable to suppose that the general phrase, “other wheeled vehicles of whatever description, used in immediate connection therewith, may refer to vehicles of the same general class or kind, as those particularly specified. In view then of the fact, that special provision had already been made in the Act of 1859, for the regulation of the rate of tolls which the railway company should pay for the passage of their street cars over the Monongahela bridge; that the railway company for twelve years and upwards had occupied the bridge with their track, and had paid, and the bridge company liad received, tolls according to rates from time to time amicably agreed upon, in apparent conformity to the provision of that Act; that notwithstanding the extraordinary character of street cars as a means of conveyance, and of the unusual appliances required in order to facilitate their passage over the bridge, no particular reference was made to them in the designation of the tolls which might be charged under the Act of 1871. We are of opinion that it was not the legislative intention to embrace the railway company’s cars in the provisions of that Act, and that the general designation, “ other wheeled vehicles of whatever description,” must be restrained to the same kind or general class of vehicles with those particularized. The bridge was and is a public highway, and the commonwealth had the power to authorize such use of it for a public thoroughfare, as was reasonably consistent with the purpose of its erection, subject, of course, to the payment of such tolls as the company might lawfully and reasonably require ; and for the passage of street cars over it the Act of 1859 prescribed the method by which the tolls should be ascertained. The bridge company must be taken to have accepted the Act of 1871, in view of the provision, made for the railway company's cars, in the Act of 1859.

The further contention of the bridge company is, that assuming the power of the.legislature to regulate the amount of their tolls, the exercise of power by the court of Quarter Sessions of Allegheny county, by the express terms of the Act of 1859, is limited to a period of thirty days from the original organization of the company, and cannot after that time be exercised. We do not so understand the provisions of the Act of 1859. It is perfectly plain, upon the slightest examination of the Act, that the application could not be made within thirty days from the organization of the company, and if it could not be made after the lapse of that time, the Act would have no force whatever. There is no limitation of time; the proceedings- are authorized to begin at any time after the expiration of the period stated, but not before, if the parties fail to agree. It is equally plain that the parties did not agree, except for a limited time, and cannot now agree; no permanent arrangement was at any time effected; the Quarter Sessions therefore has full power in the premises. It is true, the railway company had originally no right to the use and occupancy of the bridge until an agreement was effected, or an application made, but the railway company, under the temporary agreement referred to, has been and is now in the use of the bridge, without objection of the bridge company; the railway company is therefore not a trespasser; it has forfeited none of its rights under the Act of 1859, and is entitled to an adjudication under it.

Nor do we think the bridge company entitled to an appeal, under the eighth section of the sixteenth article of the Constitution ; the very purpose of the erection of the bridge was to facilitate the passage of the public over it; to this end the bridge company laid the rails upon the bridge connecting with the railway company’s tracks at either end, thus inviting this particular kind of conveyance to cross upon it. The company's charter contemplates that they shall be paid by tolls and not otherwise, and the conduct of the company has been in accordance with their charter. It does not appear that their property has been taken, injured or destroyed, they are not therefore entitled to damages; they are entitled to tolls, according to a rate to be ascertained by law, and this proceeding is properly instituted for that purpose.

The judgment is affirmed.