Porter v. Dawson Bridge Co.

• Citation: 27 A. 730,157 Pa. 367
• Decision Date: 02 October 1893
• Docket Number: 387
• Parties: Porter v. Dawson Bridge Co., Appellant
• Court: United States State Supreme Court of Pennsylvania

27 A. 730

157 Pa. 367

Porter v. Dawson Bridge Co., Appellant

No. 387

Supreme Court of Pennsylvania

October 2, 1893

Argued May 8, 1893

Appeal, No. 387, Jan. T., 1893, by defendant, from judgment of C.P. Fayette Co., June T., 1891, No. 200, on verdict for plaintiff, Samuel E. Porter.

Assumpsit for penalties for overcharges of toll.

At the trial, before INGHRAM, P.J., it appeared that plaintiff was a resident of the town of Vanderbilt, and that he ran a hack or omnibus line from that town to the town of Dawson to connect with the Baltimore and Ohio Railroad, and that, in doing so he was compelled to pass over defendant's bridge. Between Feb. 4, and April 4, 1891, he carried 579 passengers over the bridge, and was charged by defendant the foot passenger rate for each person carried, in addition to the charges for the vehicles. Other facts appear by the opinion of the Supreme Court.

Defendant offered to show the motive of plaintiff in bringing suit also that defendant had advice of counsel as to the charge made and that the charge was made in good faith. Objected to, excluded and exception. [14-17]

Plaintiff's points were as follows:

"1. That under the testimony the plaintiffs are entitled to recover the penalty of ten dollars for each and every time the defendant company collected from plaintiff more than fifteen cents toll for a two horse four wheel vehicle, and more than twenty cents toll for a four horse four wheel vehicle." Affirmed. [2]

"2. That under all the testimony the plaintiffs are entitled to recover." Affirmed. [3]

"3. That the defendant company have no right to collect toll more than fifteen cents for each two horse four wheel vehicle, nor more than twenty cents for each four horse four wheel vehicle; and have no right to collect from plaintiff more than said rates by reason of having passengers as a part of his freight or load." Answer: Affirmed.]

"[The third point we affirm, for the present, at least, and it not being disputed, gentlemen of the jury, that the company did collect from this plaintiff the amount which the plaintiff claims to have paid to the company, the amount of the penalty would be easily ascertained, and it is claimed by the plaintiff to amount to five thousand seven hundred and sixty dollars, and, with your consent, the prothonotary will now take your verdict for that amount in favor of the plaintiffs.]" [1]

Defendant's points were as follows:

"1. That under all the evidence in the cause, the plaintiff is not entitled to recover and their verdict must be for the defendant." Refused. [5]

"2. That clause 2 of section 7 of the act of April 17, 1876, P.L. 34, under which this action was brought, was supplied and repealed by the act of May 6, 1887, P.L. 92." Refused. [6]

"3. That there is no evidence in the cause to warrant the jury in finding that the defendant company ever demanded any greater rate or price for plaintiff's vehicles passing over said bridge than that prescribed in the list of tolls put up at the gate of said bridge." Refused. [7]

"4. That, under the evidence in the cause, the defendant company collected tolls off plaintiff but five times, and that if plaintiff is entitled to recover at all, there can only be a recovery in this action for five penalties, viz.: fifty dollars." Refused. [8]

"5. That there is no evidence in the cause showing that the defendant company at the time named in the plaintiff's statement demanded and collected from the said Samuel E. Porter a greater amount than twenty cents for said plaintiff's four wheeled vehicle and four horses attached thereto, passing over defendant's bridge at any one time." Refused. [9]

"6. That if the evidence discloses any excessive charges for plaintiff's four wheeled vehicle with two horses attached thereto, passing over defendant's bridge, there can be no recovery for them in this action." Refused. [10]

"7. That the defendant company did not incur the penalties imposed by clause 3 of section 7 of the act of April 17, 1876, P.L. 34, by collecting two cents toll for each passenger conveyed across said bridge in plaintiff's vehicles, in addition to the legal toll for said vehicles." Refused. [11]

Verdict and judgment for plaintiff for $5,760. Defendant appealed.

Errors assigned were (1-11) instructions; (14-17) rulings on evidence; quoting instructions, and bills of exceptions.

S. L. Mestrezat, M. M. Cochran with him, for appellant. -- The act of May 6, 1887, P.L. 92 repealed and supplied clause 2 of sect. 7 of the act of April 17, 1876, P.L. 30, and consequently there could be no action brought on it: Com. v. Cromley, 1 Ash. 181; Bartlet v. King, 12 Mass. 545; Rogers v. Watrous, 8 Texas, 62; Cain v. State, 20 Texas, 364; Pierpont v. Crouch, 10 Cal. 316; State v. Wilson, 43 N.H. 415; Norris v. Crocker, 13 How. 429; Endlich, Interp. Stat. § 200; Sedgwick, Stat. and Const. Law, 124; Dash v. Van Kleeck, 7 Johns. 477.

Penal laws must receive a strict construction and should not be extended beyond the evident intention of the legislature, as expressed upon their face: Com. v. Standard Oil Co., 101 Pa. 150; Bucher v. Com., 103 Pa. 528; Andrews v. U.S., 2 Story, 203; Schooner Enterprise, 1 Paine C.C. 32; Hines v. R.R., 95 N.C. 434; Potter's Dwarris on Statutes, 247.

It appears by the testimony in the case that defendant charged and collected two cents for each passenger crossing the bridge in plaintiff's hack. It also clearly appears that defendant company did not demand or collect from plaintiff any greater rates of toll for his hack than those prescribed by the act and posted at the bridge. To construe the act of 1876 to mean a "greater or other rate" would be contrary to the rules of construction of penal statutes as laid down in all the adjudicated cases and text books on the subject: Central R.R. v. Green, 86 Pa. 432.

If plaintiff is entitled to recover at all, it can be only for one penalty, at most for no more than five. There was no demand made for the payment of these tolls, but they were paid by plaintiff at five different times. If these payments are construed to be a "collection," then the defendant company is liable for five penalties.

R. E. Umbel, A. D. Boyd, R. W. Dawson, G. B. Jeffries and R. H. Lindsey with him, for the appellee. -- There has been no repeal of the act of April 17, 1876: Brown v. County Com's, 21 Pa. 43; Malloy v. Reinhard, 115 Pa. 31; Sifred v. Com., 104 Pa. 179; Dwarris on Statutes, 154; Wallace v. Barrett, 41 Barb. 92; McCool v. Smith, 1 Black U.S. 459; Bank v. Com., 10 Pa. 442; Erie v. Bootz, 72 Pa. 196; Wright v. Vickers, 81 Pa. 122; Barber's Election, 86 Pa. 392; Harrisburg v. Sheck, 104 Pa. 57.

The bridge company should have made itself fully acquainted with the law. It was even attempted on the trial to show that the company had been advised by its counsel that it was authorized to collect for every passenger, in addition to the regular toll for the hack. Even if they had been so advised, it would be no defence to this action. The taking of the excessive tolls being the gist of the offence, the intention of the parties is not to be considered: Coates v. Wallace, 17 S. & R. 80; Reynolds v. Smith, 2 Browne, 257; Gibson v. Gault, 33 Pa. 44.

Under the language of the act, a mere demand of excessive toll throws the party liable for the penalty. In this case there was both a demand and a collection, after protest, against paying. The offence was certainly committed every trip the hack made, where excessive toll was charged: Bartolett v. Achey, 38 Pa. 277; Gibson v. Gault, 33 Pa. 44; Central R.R. v. Green, 86 Pa. 432.

Before STERRETT, C.J., GREEN, MITCHELL, DEAN and THOMPSON, JJ.

OPINION

MR. JUSTICE GREEN:

On February 9, 1891, the defendant demanded and collected from the plaintiff $9.54; on February 24th, $42.03; on March 9th, $42.92; on March 25th, $40.10; and on April 7th, $38.49, for tolls due for driving over the defendant's bridge, with a two or a four horse vehicle, at various times preceding those several dates.

It was alleged by the plaintiff that there were in the aggregate 579 several acts of driving over the bridge, and that at each of those drivings there were passengers in the vehicles, for each of whom, also, a foot passenger's toll of two cents was collected. It was claimed that by the law under which the defendant company was chartered (General Law of 1874, P.L. 73, and supplement of 1876, P.L. 30), a penalty of ten dollars for each offence was imposed, and that, therefore, the plaintiff was entitled to recover five hundred and seventy-nine penalties of ten dollars each, amounting in the whole to $5,790. The court below so directed the jury, and a verdict and judgment for $5,760 were entered against the defendant, who thereupon took the present appeal.

By the second clause of the 31st section of the act of 1874, not changed by the act of 1876, the bridge companies chartered under the provisions of the act were authorized to charge tolls for passage over their bridges not exceeding certain fixed rates prescribed in the act, among which were, for every four wheeled vehicle with two horses fifteen cents, and for the same with four horses twenty cents, also for every foot passenger two cents.

Clause 3 is in the following language: "If the said corporation, or any person employed for it, shall collect or demand any greater rate or prices for passing over said bridge than what is prescribed in the list of tolls put up at the gate as aforesaid, or neglect to keep the said bridge in repair, he or they shall forfeit for every such offence the sum of ten dollars, to be recovered as debts of a similar amount are recovered, one half to be paid to the county, and the other half to the person who shall sue for the same."

The penalty is incurred...