The opinion of the court was delivered, July 2d 1873, by
Mercur, J. —The most important question in this case arises under the second assignment of error. It alleges “ the court erred in deciding that the average charges in this case were not more than four cents per mile per ton for toll and transportation for the plaintiffs’ coal and merchandise.”
Strictly speaking, this raises a question of fact onty. Inasmuch, however, as the facts were found by the referees, under an agreement of the parties that they should “ have the same effect • as a special verdict,” we will consider whether the court decided the law correctly upon the facts found by the referees. As much of the argument has been directed towards the consideration of the meaning of “ average charges,” a reference to the legislation bearing upon it becomes necessary. The Danville and Pottsville Railroad Company was incorporated by Act of April 8th 1826. Under this act the road was constructed from Sunbury eastwardly to Shamokin, a distance of about twenty.miles. By the Act of April 8th 1834, the credit of the state was pledged for the payment of the interest upon the loan certificates of said company, to the amount of $300,000, which were duly issued. The company became insolvent. The several Acts of 21st April 1846, March 16th 1847 and April 11th 1848, were passed, making provision for the sale of the road and the franchises of the company upon terms therein specified. No sale having been made, the further supplement of April 2d 1850 was passed. It recited that the “ state had already paid the sum of $225,000, and that there was no reasonable prospect that the company would ever complete the said railroad and relieve the state from the annual drain of $15,000 from her treasury.”
Under these laws a sale was finally effected in 1850. By Act of April 12th 1851, the sale was confirmed, and the name of the corporation changed to the Philadelphia and Sunbury Railroad Company. This company repaired the part of the road already built, and in 1855 constructed a branch road from Shamokin eastwardly to Mt. Carmel, a distance of about eight miles. In November 1857 the road and franchises w&re sold at sheriff’s sale upon a mortgage executed by said company under an act of the *189legislature. The sale was confirmed by Act of 25th March 1858, and the purchasers duly incorporated under the name of the Shamokin Valley and Pottsville Railroad Company. This last-named company operated the road until 27th February 1863, at which time they leased it to the defendants for a term of years.
The Act of April 8th 1826 fixed the charges for tolls and transportation at prices varying from one and a half to four cents per ton per mile. The third section of the aforesaid Act of April 11th 1848 (Pamph. L. 1848, p. 541) provided “ that the rates for toll and transportation may be fixed and regulated in such manner as the company may deem most advisable: Provided, however, that the maximum charges for toll and transportation on the said road shall not exceed four cents per ton per mile for freight.” The second section of the supplement, approved April 2d 1850 (Pamph. L. 1850, p. 298) declares that the “proviso to the third section of said act be and the same is hereby amended so as to read ‘ average charges for toll and transportation,’ instead of ‘ the maximum charges.’ ”
It is thus shown that at the time of the passage of the several acts relating to the sale of the road, prior to the Act of April 2d 1850, the maximum charges which the company was authorized to make was four cents per mile per ton. No greater charge than four cents per ton for any mile could be imposed. Beyond that sum the company could not go. The law made that the barrier which could not be passed. Under that limitation and restriction no purchaser was procured. What, then, was the object of the Act of 2d April 1850 ? Was it to give more or less favorable terms to the company and to the purchaser ? The desire to facilitate a sale having been unmistakably expressed by the legislature, the reasonable presumption is that it was to offer more inviting terms to a purchaser. It is contended, on the part of the plaintiff, that this law only gave power to make average charges below the four cents per mile. We answer, the company had that power before its passage; so we will not give to the statute such a construction as will wholly prevent its taking effect. The maximum charge was the only limitation imposed by the previous law. Below that sum the company could have made such average charges as it “ deemed most advisable.” The undoubted intention of the act, therefore, was to authorize the company, by a wise and judicious discrimination, to impose some charges higher than four cents per mile; but, by putting others less, to so adjust the "whole that the general average should not exceed that sum.
The referees have found that the average charges for toll and transportation upon this road, during the time in question, was only 3.734-1000th per mile per ton. Objection is made to this conclusion for two reasons; first, because the referees considered *190the whole tonnage carried and not the plaintiffs’ alone; and secondly, because of the much higher rates charged for short distances than over the whole road. We do not think either of these objections is sound. There is nothing in the act requiring that this adjustment should be so made as to bear equally upon each individual without regard to kind of freight or distance.
The adjustment is to be made between the whole road and the entire public who use it. Full effect is therefore given to the spirit and intent of the statute, as wrell as to its letter, by fixing different charges per mile for different kinds of freight. Such is the custom of all railroads. Nor is there anything unjust in discriminating in favor of longer distances. The referees have found it usual for railroad companies to charge higher rates for transporting freight short than long distances, for the reason that the number of men employed, the time consumed and the incidental expenses incurred are proportionately greater. Strong reasons exist in this case for the application of that rule. The freight of the plaintiffs was passed over one and three-fourths miles only of the defendants’ road, while the motive-power of the company had to be moved up a heavy grade to reach that portion of the road. The plaintiffs cannot be permitted to separate their freight entirely from that of others in determining the gross average charges received by the defendants. We therefore agree with the finding that when the rates per ton per mile are not uniform for all distances for which freights may be carried, “ average charges for toll and transportation” are understood to mean, and do mean, charges made at a mean rate, obtained by dividing the entire receipts for toll and transportation by the whole quantity of tonnage carried, reduced to a common standard of tons moved one mile. It is true, this must be applied to some given time, but the finding shows that whether each year be considered separately or the whole time together, during which the tonnage of the plaintiffs was passing over the road, the average charges of the defendants did not exceed fo.ur cents per ton per mile for the whole tonnage.
This view of the case shows the judgment was correctly entered in favor of the defendants. It is therefore unnecessary to discuss the other assignments of error, as none of them can. change the result. Judgment affirmed.