Myers v. Commonwealth ex rel. Zook

110 Pa. 217 | Pa. | 1885

Chief Justice Mercur

delivered the opinion of the court October 5th, 1885.

On a case stated, this judgment of the court awarded a peremptory mandamus commanding the commissioners of the county of Lancaster to rebuild a bridge across the Conestoga creek in said county.

In 1797-8 one Binkley owned the land on both sides of the creek, and erected a bridge across the stream. In 1801 he sold and conveyed unto Myers and others, the bridge and the land on which it was built, and “one perch wide around the heads thereof” in trust for the public use and benefit of said county of Lancaster and the inhabitants thereof, and free for all persons to pass and travel over, across and upon said bridge and the ground or parcel of land whereon it was built, forever. The county accepted the bridge, repaired and maintained it, until it was destroyed by a flood in 1867. It was rebuilt in the following year. In November, 1882, the superstructure of the bridge was destroyed by fire leaving the stone piers and abutments still standing. The condition of the stream is such as to unquestionably' require a bridge across it. The contention is whether it is the duty of the county commissioners to reconstruct or rebuild the same. The denial of that duty is based mainly on the alleged improper action of the authorities in adopting it as a county bridge and rebuilding it after its destruction by water. It appears that in 1810 the New Holland Turnpike Road Company was incorporated and constructed a turnpike which leads.to and from said bridge, and the turnpike continues to be used as such and toll charged thereon.

Soon after the destruction of the bridge in 1867, on petition of citizens of said county the Court of Quarter Sessions appointed viewers who reported in favor of rebuilding the bridge. The report was submitted to the grand jury at the November sessions and by that body disapproved. At the first session thereafter the report was again laid before the grand jury and by it approved, and the report was confirmed by the court. The commissioners of the county ratified the same and agreed to rebuild, and did rebuild, on the payment to them of one third the cost thereof by the Turnpike company'.

Thus all the forms of law prescribed by statute, to constitute a county bridge, were complied with. It is claimed by plaintiffs in error that the whole proceeding is invalid inasmuch as the report was laid before a subsequent grand jury after it had been disapproved by a former one. The case of Pequea Creek bridge, 18 P. F. S., 427, is cited to support this conclusion. We do not question the correctness of that opinion on the facts of the case. There objection was made to submitting the same report to a second grand jury before it was done. It is an irregularity which may very well not be approved of if objection be made in time. Here, however, it was not only laid before the second jury without any objection but the action of that jury was ratified and confirmed by the court and the commissioners of the county. During the whole fourteen years that the superstructure stood the bridge was known and recognized as a county bridge. The decree making it such has never been reversed, set aside or in any manner annulled. It remains in full force down to the present time. The irregularity was waived by all of the tribunals authorized to pass upon the proceeding. The correctness thereof has been affirmed and ratified by so many years of recognized assent that it is now too late to successfully question its validity, in this proceeding. We must therefore hold and declare as we now do, that it became a county bridge subject to all the laws of that county applicable to such bridges. If this be so, it is further contended that the duty of rebuilding the same does not rest on the county of Lancaster by reason of the special statutes applicable thereto. To support that view the three following Acts are cited to wit: Of 27th February, 1847 ; 21st May, 1857, and 1st of May, 1861. The first of these provides, when any new bridge is then or thereafter authorized to be built according to law in that county, that the commissioners may, before proceeding to erect the same, cause a certain amount to be contributed by subscription of individuals and others. The one of 21st May, 1857, provides that all bridges which have been or shall be erected or purchased at the expense in part, or in the whole, of said county, and which are or shall be situate on the route of any turnpike road, and be used by the company owning such turnpike road, shall be kept in repair by the turnpike company, and in case of its failure so to do, the same shall be repaired by the commissioners of the county, and they may recover the cost thereof from such turnpike company. The other of 1st May, 1861, is supplementary to the Act of 27th February, and declares, in addition to the individual subscriptions.authorized in the former Act, and which they may still require if they deem it right and propér, the commissioners may, before proceeding to erect the same, require from the township or townships in which the bridge is to be built, the payment of one-third of the cost thereof.

It will be observed that the first of these Acts expressly refers to the building of a “new bridge,” and the Act supplementary thereto does not enlarge its application to any other bridge, nor in any manner refer to the case of rebuilding, and both leave to the sound discretion of the commissioners whether to obtain aid from individuals or townships, before erecting the bridge; and the second Act applies to “ repairs ” only.

Whatever may have been the purpose or effect of any one of these Acts, the clear and unmistakable language of the Act of 5th of May, 1876, Pur. Dig. 1508, pi., 90, appears to cover all cases of rebuilding. It declares “ it shall be the duty of the county commissioners of the several counties of this Commonwealth, to re-build and re-construct all bridges heretofore built or that may hereafter be erected by the county commissioners of any of the counties of this Commonwealth, whether the same has been or shall be constructed under the general laws of this Commonwealth relating to roads and bridges or any special Act of assembly for that purpose, whenever any such bridge has been, or shall hereafter be, blown down, destroyed, partial^ destroyed or swept away by floods, freshets, ice, storm, fire or other casualty, at the expense of the county wherein such bridge was located; and it shall be the duty of the county commissioners of the respective counties to pay the expenses of rebuilding any such bridge out of the county treasury in the usual manner.”

Language more clear and specific than this could not be used. Obligation is thereby imposed on the county “ to rebuild and re-construct.” What? The statute answers, “all bridges.” How must they have been constructed? “Either under general or special laws,” says the Act. In what manner must they have been either wholly or partially destroyed ? The answer is by any casualty whatever. Where does this Act apply? It answers in any of the several counties of this Commonwealth. It was designed to strike down all laws in conflict therewith. To remove all doubt,sect. 8 declares “all Acts or part of Acts inconsistent herewith are hereby repealed.” Hence the repeal of every or any special law in the county of Lancaster, inconsistent with this general law, does not rest on implication or presumption alone, but on its express command.

We see no merit in the argument as to the insufficiency of the title to this Act. It authorizes “the reconstruction of county bridges destroyed or partially destroyed, and empowers the commissioners to borrow money for that purpose.” The. purpose of the Act is sufficiently expressed in the title, and the authority to borrow money is germane to the reconstruct tion. It is unnecessary to discuss the question further. The» learned judge committed no error in the judgment or decree entered. Judgment affirmed.