Commonwealth ex rel. Attorney General v. Monongahela Bridge Co.

• Decision Date: 27 June 1906
• Docket Number: 2
• Citation: Commonwealth ex rel. Attorney General v. Monongahela Bridge Co., 64 A. 909, 216 Pa. 108 (Pa. 1906)
• Parties: Commonwealth, Appellant, v. Monongahela Bridge Company
• Court: Pennsylvania Supreme Court

64 A. 909

Commonwealth, Appellant, v. Monongahela Bridge Company

216 Pa. 108

No. 2

Supreme Court of Pennsylvania

June 27, 1906

Argued May 22, 1906

Appeal, No. 2, May T., 1906, by plaintiff, from judgment of C.P. Dauphin Co., Commonwealth Docket, 1900, No. 131, on case tried by the court without a jury in suit of Commonwealth ex rel. Attorney General v. Monogahela Bridge Company. Affirmed.

Quo warranto to forfeit the franchises of a corporation. Before WEISS, P.J.

The facts are stated in the opinion of the Supreme Court.

Error assigned was in entering judgment for defendant.

The assignments of error are overruled, and the judgment is affirmed.

John G Johnson and Lyman D. Gilbert, with them Homer Shoemaker, A W. Duff, Hampton L. Carson, attorney general, and Frederic W. Fleitz, deputy attorney general, for appellant. -- The adjudication was not in proper form: Ellis v. Lane, 85 Pa. 265; Foreman v. Hosler, 94 Pa. 418; Lewars v. Weaver, 121 Pa. 268; Carpenter v. Yeadon Borough, 208 Pa. 396; Swank v. Phillips, 113 Pa. 482; Com. v. Ry. Co., 188 Pa. 203.

The defendant is estopped from asserting its corporate existence: Kiern v. Ainsworth, 95 Pa. 310; Slayton v. Graham, 139 Pa. 1; Phila., etc., R.R. Co. v. Howard, 54 U.S. 307; Ry. Co. v. McCarthy, 96 U.S. 258; Davis v. Wakelee, 156 U.S. 680 (15 S.Ct. Repr. 555); Stevens v. Hughes, 31 Pa. 386; Aurora City v. West, 74 U.S. 82; Schwan v. Kelly, 173 Pa. 65.

A. M. Thompson, with him W. B. Rodgers and T. D. Carnahan, for appellee. -- The Monongahela Bridge Company has not conveyed its bridge structure, its franchises and assets to the city of Pittsburg.

There has been an exact observance of all the requirements of the act of 1874 in this case: Long v. Reed, 4 Pa. Dist. Rep. 72.

The findings of fact by the learned judge of the court below cannot now be disturbed: Eichman v. Hersker, 170 Pa. 402; Southern Maryland R.R. Co. v. Moyer, 125 Pa. 506; Jamison v. Collins, 83 Pa. 359; Griffith v. Sitgreaves, 90 Pa. 161; Rohrheimer v. Hofman, 103 Pa. 409; Brown v. Susquehanna Boom Co., 109 Pa. 57; Commonwealth v. Hulings, 129 Pa. 317.

There has been no declaration or acknowledgment by the city of Pittsburg that the Monongahela bridge was a free bridge, and no corporate act on the part of the city of Pittsburg taking physical possession of this bridge. The only ground for any such contention is the fact that foot passengers and ordinary vehicles are no longer charged toll; but this can hardly be adjudged an injury to the public. The fact that the general public does not have to pay toll is no violation of charter obligations: Com. v. Allegheny Bridge Co., 20 Pa. 185.

The defendant is not estopped from insisting upon its corporate existence: Hibshman v. Dulleban, 4 Watts, 191; Forcey's App., 106 Pa. 508.

Before MITCHELL, C. J., BROWN, POTTER, ELKIN and STEWART, JJ.

OPINION

MR. JUSTICE POTTER:

This was an action of quo warranto brought by the Commonwealth ex rel. The Attorney General, against the Monongahela Bridge Company, and based on an alleged forfeiture of its franchises. The suggestion for the writ stated that the attorney general was informed as to the facts alleged therein by the Pittsburg and Birmingham Traction Company. Trial by jury was dispensed with, under a stipulation of the parties, and the case was heard by the court under the provisions of the Act of April 22, 1874, P.L. 109. The facts were found by the trial judge substantially as follows: The Monongahela Bridge Company was incorporated under the Act of March 19, 1810, 5 Sm. L. 114, for the purpose of erecting a bridge over the Monongahela river, opposite Pittsburg, and various other acts supplementary to the act of 1810, were enacted by subsequent legislatures. A bridge was erected by the company as authorized by the charter, and maintained as a toll bridge. The Pittsburg and Birmingham Passenger Railway Company was subsequently chartered under the Act of April 13, 1859, P.L. 749, and authorized to construct a railway across the bridge of the Monongahela Bridge Company.

In 1889 the railway company was authorized to operate its cars by cable instead of horse power, and a year later its name was changed to the Pittsburg and Birmingham Traction Company, and it was authorized to operate by electricity in addition to cable.

In 1889 an agreement was entered into between the bridge company and the railway company whereby the former agreed to reconstruct and widen the bridge and provide a sufficient roadway to enable the cars of the latter to cross on double tracks, by cable, and in 1890 a supplemental agreement was made between the bridge company and the traction company authorizing the latter to use electricity as a motive power instead of cable. The railway company agreed to and did advance a large sum of money towards the reconstruction of the bridge, which was to be liquidated by tolls.

In 1893 the city of Pittsburg by ordinance authorized an increase of its indebtedness for the purpose of erecting and purchasing bridges over the Monongahela river, and in 1895 proceedings were instituted by the city to ascertain damages for taking and appropriating the property, rights and franchises of the bridge company. Viewers were appointed who awarded damages for the taking of the bridge, and an appeal was taken by the city from the award. Pending the determination of this appeal, the city entered into an agreement with the stockholders of the bridge company, by which it purchased the entire stock of the company, and all the stock was transferred to the city, or to persons designated by its representatives. Directors named by the city, being municipal employees, were substituted for the former directors. The transfer was made April 11, 1896, and since that time no tolls have been charged for foot passengers or horse and wagon traffic over the bridge, and it has been maintained at the expense of the city, and the revenues received from it have been paid into the city treasury. When the stock was acquired by the city, the condemnation proceedings were discontinued. No meetings of stockholders of the bridge company have been held since the transfer of the stock, and no directors' meetings since July 31, 1897.

In 1896 the traction company sued the bridge company for a portion of the money advanced for the reconstruction of the bridge as above stated. The suit resulted in judgment for the defendant: Traction Co. v. Bridge Co., 184 Pa. 180. In 1898 the bridge company sued the traction company to recover tolls, and this suit resulted in a judgment for the plaintiff: Bridge Co. v. Traction Co., 196 Pa. 25. Upon the trial of the latter suit the defendant attempted to raise the question of the right of the bridge company to exercise corporate franchises, but it was held that this question could not be raised in a collateral proceeding. In 1897 the bridge company appealed from the settlement made against it by the accounting officers of the commonwealth for tax on its capital stock, and among the specifications of objection stated that since April 13, 1896, the entire capital stock of the Monongahela Bridge Company has been owned absolutely by the city of Pittsburg; that no tolls have been collected; that the property so acquired has been managed, operated and controlled as like property of the city; that no dividends have been declared; that the organization of the company has been maintained solely for the purpose of determining whether or not certain written contracts between the bridge company and the traction company relative to the payment of tolls can be enforced by the city; and that the purpose and effect of the sale to the city of Pittsburg of all the shares of the capital stock of the Monongahela Bridge Company was to convey the entire property of the Monongahela Bridge Company to the city of Pittsburg. The appeal was tried, and a verdict rendered, December 2, 1898, for the defendant, and a discontinuance entered the same day by the attorney general.

In the present case the commonwealth alleges that by reason of the misuser of the rights, privileges and functions of the Monongahela Bridge Company, they have been forfeited, and its letters patent are null and void. Upon this issue the court below found in favor of the respondent, and from its judgment entered for the defendant, this appeal has been taken.

It is apparent, both from the pleadings and the evidence, that the motive for instituting this proceeding was to relieve the Pittsburg and Birmingham Traction Company from the payment of tolls for the use of the bridge. In Bridge Co. v. Traction Co., 196 Pa. 25, it was held that the question of ultra vires could not be raised collaterally, and consequently the traction company, which was defendant in that case and the losing party, lodged with the attorney general the information and complaint, which led to the application for this writ of quo warranto.

The attorney general was apparently unwilling to deny to the traction company an opportunity to have the question of forfeiture of defendant's charter determined by the courts, in the only way in which it could successfully be raised, that is, upon his suggestion, but he was careful to set forth the fact that the information came from the traction company, and that the action was based upon the contention made by that company in its petition to him asking that the suggestion be filed in the proper court. The relations existing between the traction company and the bridge company have already, in part at least, been considered twice by this court. The case of Pittsburg &amp Birmingham Traction Co. v. Monongahela Bridge Co., 184 Pa. 180, was an action to recover an amount of money advanced by the traction company for reconstructing the bridge. Under the...