Opinion by
Mr. Justice Mitchell,
The learned judge below held that the act of 1897 was unconstitutional because it was special legislation, and because it contained a subject not clearly expressed in the title.
Legislation is not necessarily unconstitutional because it is special or local. On the contrary legislative authority inherently includes power to pass laws for special or local needs, and this principle is recognized in section 8 of article III. of the constitution which provides that “ no local or special bill shall be passed unless notice of the intention to apply therefor shall have been published,” etc. But by section 7 of the same article, local or special laws “ regulating, the affairs of counties,” etc., or “relating to ferries or bridges,” are, inter alia, expressly [323]*323prohibited. The subject of the act of 1897 being a certain class of bridges falls within the prohibition, if the act is local or special.
Legislation for a class distinguished from a general subject is not special but general, and classification is a legislative question, subject to judicial revision only so far as to see that it is founded on real distinctions in the subjects classified, and not on artificial or irrelevant ones used for the purpose of evading the constitutional prohibition. If the distinctions are genuine the courts cannot declare the classification void, though they may not consider it to be on a sound basis. The test is, not wisdom, but good faith in the classification.
The bridges which are made into a separate class by the act of 1897, and authorized to be rebuilt must have been :
First, over a river or stream forming the boundary line between two counties;
Second, on the line of a public highway or deemed necessary for the use of the traveling pirblic ;
Third, owned and maintained by corporations or private persons, or built by public subscriptions ;
Fourth, used exclusively for vehicles and foot purposes;
Fifth, destroyed by ice, flood, or otherwise, or abandoned by the owners and rebuilt (replaced) on another site.
These conditions are not so elaborate or special as they may seem at first sight, but the question is, are they a mere cloak for a special bridge by prescribing tests to which no other will conform.
The first condition is founded on a natural and manifest distinction, which is to a large extent unavoidably local, llivers or streams forming boundaries between counties are comparatively few in number, and their locality is fixed. So also bridges over them are almost necessarily fixed as to location, by the centers of population and travel. They form a distinct class, because not exclusively a bridge of either county, and there are, matters of exact site, style, material, expense, etc., as to which the two counties may not be in harmony. This basis of classification, therefore, is not only competent, but obviously proper.
The second and third conditions can hardly be called distinctions at all, for very few bridges can be excluded by them. Practically all bridges are built on the line of a public highway [324]*324or on a site deemed necessary to the traveling public. And as all bridges have owners, those only are excluded which are not owned by corporations or private persons, but already by the public. There is a very plain difference between authorizing county commissioners to take for the public what is now the property of others, and interfering with what is already public property.
The fourth condition, as to exclusive use for vehicles and foot passengers, is plainly meant to prevent interference with railroad bridges, and such classification is so obviously proper that it needs no comment.
In the fifth condition we probably have the real purpose and motive of the act. The county commissioners are authorized “ to take charge of and rebuild and reconstruct ” bridges destroyed by ice, flood or otherwise (as e. g. by fire) or bridges abandoned by their owners and rebuilt on another site. It is argued by appellees that the word “ or ” before abandoned should read “ and,” but we see no necessity for so doing. The intent of the act is quite plain. Where the public has had the use of a bridge at a certain place, and has been deprived of it, either by destruction or abandonment of the bridge, and the re-' building on a different site, the commissioners are authorized to restore the former public use, by taking the site of the destroyed or abandoned bridge and rebuilding or reconstructing thereon. The phrase “ rebuilt .... on another site ” is not strictly accurate, for a new bridge in a new place cannot strictly be'said to be the old one rebuilt. But the meaning is clear, and “replaced by” or any equivalent phrase would express it correctly. Such a construction is no more strained than the substitution of “ and ” for “ or.” If the flood of 1865 had not destroyed the bridge of the Lewisburg Bridge Company, but had weakened it so as to be unsafe for travel, and the company had abandoned it and rebuilt, i. e., replaced it by a new one in a different location (as it was authorized to do by the act of 1868), the inconvenience contemplated by the act of 1897 would have been present and the remedy applicable. *
There is nothing in these conditions that enables the Court to say as matter of legal inference that they may not concur as to other bridges either now or hereafter. Nor was any proof made to that effect as matter of fact in the court below. We are un[325]*325able therefore to say that this act is special or local as to this bridge, within the prohibition of the constitution.
Nor must the act fail by reason of defective title. The title is somewhat long, and very fairly descriptive of the purpose and contents of the act. It is called an act “ authorizing county commissioners .... to rebuild bridges on sites owned by corporations or by private persons .... and providing for the cost of reconstructing the same.” Every one is bound to know that public officers cannot be authorized to take possession of bridge sites or any other private property without compensation, and the words quoted from the title arc ample to give notice to both owners of the sites of destroyed or abandoned bridges and county commissioners, and to put them upon inquiry as to the body of the act. That is all that the title is required to do.
We are of opinion therefore that the act is not unconstitutional, and the judgment must be reversed.
But it does not necessarily follow that the mandamus prayed for must be awarded. The answer of the commissioners raises a question of fact which has not been disposed of. They deny that the bridge destroyed in 1865 has been abandoned, and aver that it has been rebuilt upon the original site. On this point the opinion of the court below says, “ the location was slightly changed .... the new bridge was built north of the site of the old bridge one hundred and ninety-six feet at one end, and four hundred and forty-four feet at the other end.” It may be admitted that this was presumably a new site, but not necessarily so. xl 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.
Free access — add to your briefcase to read the full text and ask questions with AI
Opinion by
Mr. Justice Mitchell,
The learned judge below held that the act of 1897 was unconstitutional because it was special legislation, and because it contained a subject not clearly expressed in the title.
Legislation is not necessarily unconstitutional because it is special or local. On the contrary legislative authority inherently includes power to pass laws for special or local needs, and this principle is recognized in section 8 of article III. of the constitution which provides that “ no local or special bill shall be passed unless notice of the intention to apply therefor shall have been published,” etc. But by section 7 of the same article, local or special laws “ regulating, the affairs of counties,” etc., or “relating to ferries or bridges,” are, inter alia, expressly [323]*323prohibited. The subject of the act of 1897 being a certain class of bridges falls within the prohibition, if the act is local or special.
Legislation for a class distinguished from a general subject is not special but general, and classification is a legislative question, subject to judicial revision only so far as to see that it is founded on real distinctions in the subjects classified, and not on artificial or irrelevant ones used for the purpose of evading the constitutional prohibition. If the distinctions are genuine the courts cannot declare the classification void, though they may not consider it to be on a sound basis. The test is, not wisdom, but good faith in the classification.
The bridges which are made into a separate class by the act of 1897, and authorized to be rebuilt must have been :
First, over a river or stream forming the boundary line between two counties;
Second, on the line of a public highway or deemed necessary for the use of the traveling pirblic ;
Third, owned and maintained by corporations or private persons, or built by public subscriptions ;
Fourth, used exclusively for vehicles and foot purposes;
Fifth, destroyed by ice, flood, or otherwise, or abandoned by the owners and rebuilt (replaced) on another site.
These conditions are not so elaborate or special as they may seem at first sight, but the question is, are they a mere cloak for a special bridge by prescribing tests to which no other will conform.
The first condition is founded on a natural and manifest distinction, which is to a large extent unavoidably local, llivers or streams forming boundaries between counties are comparatively few in number, and their locality is fixed. So also bridges over them are almost necessarily fixed as to location, by the centers of population and travel. They form a distinct class, because not exclusively a bridge of either county, and there are, matters of exact site, style, material, expense, etc., as to which the two counties may not be in harmony. This basis of classification, therefore, is not only competent, but obviously proper.
The second and third conditions can hardly be called distinctions at all, for very few bridges can be excluded by them. Practically all bridges are built on the line of a public highway [324]*324or on a site deemed necessary to the traveling public. And as all bridges have owners, those only are excluded which are not owned by corporations or private persons, but already by the public. There is a very plain difference between authorizing county commissioners to take for the public what is now the property of others, and interfering with what is already public property.
The fourth condition, as to exclusive use for vehicles and foot passengers, is plainly meant to prevent interference with railroad bridges, and such classification is so obviously proper that it needs no comment.
In the fifth condition we probably have the real purpose and motive of the act. The county commissioners are authorized “ to take charge of and rebuild and reconstruct ” bridges destroyed by ice, flood or otherwise (as e. g. by fire) or bridges abandoned by their owners and rebuilt on another site. It is argued by appellees that the word “ or ” before abandoned should read “ and,” but we see no necessity for so doing. The intent of the act is quite plain. Where the public has had the use of a bridge at a certain place, and has been deprived of it, either by destruction or abandonment of the bridge, and the re-' building on a different site, the commissioners are authorized to restore the former public use, by taking the site of the destroyed or abandoned bridge and rebuilding or reconstructing thereon. The phrase “ rebuilt .... on another site ” is not strictly accurate, for a new bridge in a new place cannot strictly be'said to be the old one rebuilt. But the meaning is clear, and “replaced by” or any equivalent phrase would express it correctly. Such a construction is no more strained than the substitution of “ and ” for “ or.” If the flood of 1865 had not destroyed the bridge of the Lewisburg Bridge Company, but had weakened it so as to be unsafe for travel, and the company had abandoned it and rebuilt, i. e., replaced it by a new one in a different location (as it was authorized to do by the act of 1868), the inconvenience contemplated by the act of 1897 would have been present and the remedy applicable. *
There is nothing in these conditions that enables the Court to say as matter of legal inference that they may not concur as to other bridges either now or hereafter. Nor was any proof made to that effect as matter of fact in the court below. We are un[325]*325able therefore to say that this act is special or local as to this bridge, within the prohibition of the constitution.
Nor must the act fail by reason of defective title. The title is somewhat long, and very fairly descriptive of the purpose and contents of the act. It is called an act “ authorizing county commissioners .... to rebuild bridges on sites owned by corporations or by private persons .... and providing for the cost of reconstructing the same.” Every one is bound to know that public officers cannot be authorized to take possession of bridge sites or any other private property without compensation, and the words quoted from the title arc ample to give notice to both owners of the sites of destroyed or abandoned bridges and county commissioners, and to put them upon inquiry as to the body of the act. That is all that the title is required to do.
We are of opinion therefore that the act is not unconstitutional, and the judgment must be reversed.
But it does not necessarily follow that the mandamus prayed for must be awarded. The answer of the commissioners raises a question of fact which has not been disposed of. They deny that the bridge destroyed in 1865 has been abandoned, and aver that it has been rebuilt upon the original site. On this point the opinion of the court below says, “ the location was slightly changed .... the new bridge was built north of the site of the old bridge one hundred and ninety-six feet at one end, and four hundred and forty-four feet at the other end.” It may be admitted that this was presumably a new site, but not necessarily so. xl 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 flood which destroyed the bridge may have so altered the banks or the channel of the river as to necessitate some variation in the location. The judge calls the change slight. Whether or not it was sufficient to be called the use of a new site may depend largely on the physical features of the neighborhood, or on changes in the location of population and travel. It is a question of fact which the respondents have put in issue and which must be specifically ascertained and disposed of.
There are moreover legal questions in the case that have not [326]*326been raised or argued, but which cannot be ignored in a final decision.' Is the act mandatory? In form it is permissive only, and, though a legislative conferring of authority is sometimes equivalent to a command to exercise it, yet it is not always so. The commissioners are “authorized ” and if they “neglect or refuse to act ” ten citizens may petition “ the court of common pleas of the counties where located,” who thereupon “may issue a mandamus.” The commissioners clearly are compellable to act on the subject, but if they have acted and their judgment is against rebuilding, is it within their discretion? Is their discretion reviewable and subject to be superseded by that of the court, or is the act mandatory on both at the option of the ten citizens ? Again the petition must be to the common pleas of the “ counties,” and no authority is expressly given, even if it could be, to either court to issue its mandamus to the commissioners of the other county. Each court must necessarily act in its own county, and if there is a discretion it is clear that both must concur before either can enforce a mandamus. These questions (and perhaps others will arise) we suggest without expressing any opinion upon them, because they lie in the pathway of the case, though they were not raised in the court below, and have not been argued here.
Judgment reversed and procedendo awarded.