197 Pa. 110 | Pa. | 1900
Opinion by
When this case was here before, 187 Pa. 318, the act of 1897 was held constitutional, but the case was sent back for the ascertainment of disputed facts which the court below, in the view it took, had not found it necessary to decide. Among these was whether the site of the former bridge had been abandoned, as alleged by the plaintiffs. The answer of the commissioners denied that the bridge destroyed in 1865 had been abandoned and averred that it had been rebuilt on the oi’iginal site. What we said on that subject was, that while on the facts as they appeared to be, the site was presumably new, it was not necessarily so. “A slight variation would not make it new. If in the line of the same highway or accommodating the same public travel in substantially the same place it may be on the same site within the meaning of the act, though the piers or the approaches are different, and the bridge at a different angle with the stream.”
The court below has now found the fact to be that “ the re
This finding disposes of the case by talcing it out of the requirements of the statute. But it is strenuously argued by appellants that the act being mandatory leaves no discretion in the commissioners, or as it appears, in the court, and that the mandamus must issue on the petition of the ten citizens. And the court having expressed the view that the act is mandatory, it is necessary in order to avoid misconception of the effect of the affirmance of the judgment, to consider this question. The learned judge cites, as controlling authority, the decision in Keiser v. Comrs. of Union County, 156 Pa. 315. But that case was very far from holding that even the act of 1891 was mandatory at the instance of any ten citizens. The act of 1881 had provided that the commissioners were authorized to take charge of and reconstruct destroyed and abandoned bridges, “if in their judgment a bridge is necessary for the accommodation of the traveling public.” This left the matter entirely to the discretion of the commissioners. But the act of 1891 in amending that of 1881, omitted the clause quoted, and added the provision as to the petition of ten citizens to the court, when the commissioners refuse or neglect to act, and provided that the court upon the hearing of such petition “may” issue a mandamus compelling the commissioners to proceed. It was held in Keiser v. Comrs. that the omission of the clause of the act of 1881 quoted was intentional, and took away the absolute discretion theretofore vested in them. The court below had held that the bridge in question being wholly within the county of Northumberland, the court of Union county had no jurisdiction over it. On the merits, however, the court was understood to be with the petitioners, and it was so stated at the end of the opinion of this court. The judgment awarding a mandamus was therefore only the judgment it was supposed the court below would have entered if it had thought itself authorized to do so. It was expressly disclaimed by this court as a judgment on the merits, and it was equally far from a decision that the ten citizens had a con
Judgment affirmed.
