Under the acts of Congress and of the State of Ohio, relating to
the surrender and acceptance of the Cumberland Road, a toll charged
upon passengers traveling in the mail stages without being charged
also upon passengers traveling in other stages is against the
contract, and void.
It rests altogether in the discretion of the Postmaster General
to determine at what hours the mail shall leave particular places
and arrive at others and to determine whether it shall leave the
same place only once a day or more frequently.
It is not, therefore, the mere frequency of the departure of
carriages carrying the mail that constitutes an abuse of the
privilege of the United States, but the unnecessary division of the
mail bags amongst a number of carriages in order to evade the
payment of tolls.
Page 44 U. S. 721
This case involved the construction of the acts of Congress and
the State of Ohio relative to the cession of the Cumberland Road,
which are narrated in a preceding part of this volume in the case
of
Searight v.
Stokes, 4 U.S. 151.
It is proper, however, to state the law of Ohio with more
particularity than it was necessary to do in the report of that
case. The proviso contained in the 4th section of the act of 1831
was there recited, but the 5th section was not. They are as
follows:
Sec. 4 lays tolls, and adds:
"Provided that nothing in this act shall be construed so as to
authorize any tolls to be received or collected from any person
passing to or from public worship, or to or from any muster, or to
or from his common business on his farm or woodland, or to or from
a funeral, or to or from a mill, or to or from his common place of
trading or marketing within the county in which he resides,
including their wagons, carriages and horses, or oxen drawing the
same, provided also that no toll shall be received or collected for
the passage of any stage or coach conveying the United States mail,
or horses bearing the same, or any wagon or carriage laden with the
property of the United States, or any cavalry or other troops, arms
or military stores belonging to the same, or to any of the states
comprising this union, or any person or persons on duty in the
military service of the United States, or of the militia of any of
the states."
"SEC. 5. That it shall be lawful for the general assembly, at
any future session thereof, without the consent of Congress, to
change, alter, or amend this act, provided that the same shall not
be so changed, altered, or amended, as to reduce or increase the
rates of toll hereby established, below or above a sum necessary to
defray the expenses incident to the preservation and repair of the
said road, to the erection of gates and toll houses thereon, and
for the payment of the fees or salaries of the superintendent, the
collectors of tolls, and of such other agents as may be necessarily
employed in the preservation and repair of the same, according to
the true intent and meaning of this act."
On 6 February, 1837, the State of Ohio passed an act containing,
among other provisions, the following,
viz.:
"SEC. 4. That one daily stage, coach, or other vehicle, and no
more, with the horses drawing the same, belonging to any contractor
or contractors for carrying the United States mail on said road,
with the passengers therein, shall be permitted to pass in each
direction free from the payment of tolls; and each additional
stage, coach, or other vehicle belonging to such contractor or
contractors, although the same may contain a mail, or portion
thereof, shall be charged with the same tolls as other vehicles of
the like kind. But if the Postmaster General shall order the mail
to be divided, and carried in two or more stages, coaches, or
vehicles, in anyone direction daily, then in such case the coaches
or vehicles in which mails
Page 44 U. S. 722
shall actually be carried, shall pass free of toll; but on each
passenger transported in any such additional stage, coach, or
vehicle, there shall be charged and collected at each gate, three
cents, in manner hereinafter provided."
"SEC. 5. That each and every driver of any stage, coach, or
other vehicle, belonging to any such mail contractor or
contractors, other than such as are entitled to carry passengers
free of toll, shall, at each and every gate, report the number of
seats occupied in such stage, coach, or other vehicle, to the
keeper of such gate, whose duty it shall be to open an account
against the proprietor or proprietors of such stage, coach, or
other vehicle, and charge, in a book to be kept for that purpose,
three cents for each passenger, as provided in the preceding
section of this act, and said proprietor or proprietors shall pay
over to such gate keeper, at the end of every three months after
the taking effect of this act, the aggregate amount of tolls which
shall have become due for passengers, and charged as above
provided."
"SEC. 6. That should the driver of any stage, coach, or other
vehicle, belonging to such mail contractor or contractors, other
than such as are entitled to carry passengers free of toll, neglect
or refuse to report to any gate keeper the number of seats occupied
in said stage, coach, or vehicle, it shall be the duty of such gate
keeper to charge the proprietor or proprietors of such stage,
coach, or other vehicle, at the rate aforesaid, for each and every
seat which might be occupied in the same, to be recovered in an
action of debt, in the name of the State of Ohio, in any court
having competent jurisdiction."
"SEC. 8. That the board of Public Works, or their authorized
agent, may be allowed to collect tolls from any proprietor or
proprietors of any line of stages, post coaches, or other vehicles
for the conveyance of passengers, quarterly; and if any proprietor
or proprietors of any such line of stages, post coaches, or other
vehicles as aforesaid, shall neglect or refuse to pay quarterly,
that from and after such neglect or refusal, the said proprietor or
proprietors as aforesaid shall be required to pay at each and every
gate as they pass, provided that the Board of Public Works or their
authorized agent shall have made out and presented to any such
proprietor or proprietors, or any one of them, the amount of the
toll due from him or them for each and every gate."
The Act of the legislature of March 19, 1838, provides as
follows:
"SEC. 24. That the said Board of Public Works shall have power
to revise the rates of toll to be paid by persons passing on or
using the national road in Ohio, and so to modify the same, from
time to time, as to raise, and collect, in the most equal manner,
the sum necessary to defray the expenses incident to the
preservation and repair of said road, to the erection of gates and
toll houses thereon, and for the payment of the fees or salaries of
the superintendent, the collectors of tolls, and of such other
agents as may be necessarily employed in
Page 44 U. S. 723
the repair and preservation of the same, according to the true
intent and meaning of the Act passed February 4, 1831, entitled 'An
act for the preservation and repair of the United States
road.'"
The order of the Board of Public Works, above referred to, is as
follows:
"By virtue of the powers vested in the Board of Public Works by
the 24th section of the act 'in addition to an act for the
preservation and repair of the United States road,' passed March
19, 1838, it is hereby"
"Ordered that instead of the rate of toll charged on each
passenger by the 4th section of the act 'fixing the rates of tolls
on the national road,' passed February 6, 1837, there shall be
charged ten cents, at each gate, on each of such passengers."
In October, 1842, a suit was brought in the Court of Common
Pleas in Franklin County against Neil, Moore & Co., for tolls
on passengers conveyed in stages by the defendants, on the national
road, and the following agreed statement of facts was filed:
"In this case, the following facts are agreed by the
parties:"
"The partnership of the defendants, as alleged, is admitted. The
plaintiff claims to recover for tolls on passengers carried upon
the national road in Ohio in coaches belonging to the defendants,
other than and besides one daily stage coach, carrying the mail of
the United States, which said coach, with the horses, passengers,
and everything else pertaining to it, was permitted to pass toll
free. The order of the Board of Public Works, hereto annexed, was
made in due form at the date thereof, and is to be admitted in
evidence. The passengers upon whom toll is sought to be recovered,
were carried by the defendants, as above mentioned, between the
first days of April and October, A.D. 1842. The defendants were
contractors for carrying the mail of the United States upon said
road, and said passengers were all carried in coaches in which a
part of said mail was carried at the same time, the mail being thus
carried in more than one coach, pursuant to orders from the
Postmaster General, one coach, containing a part of the mail and
the passengers, and baggage, and everything on it, being, at the
same time, permitted to pass toll free, as above stated. The mail
was carried in one line of coaches, down to the time stated in the
annexed statement of the Postmaster General, which, together with
the accompanying orders of the department, are taken in evidence in
this case. Both before and since the construction of the national
road, it was the uniform practice, in Ohio, to carry passengers on
the coaches carrying the mail, and since the construction of the
national road, no claim was made for toll on such passengers, or
coaches, or on anything pertaining to them, except as shown by the
case of
State of Ohio v. Neil and Moore, 7 Ohio 132. Until
the mail was carried in two separate lines of coaches, as specified
in the said statement of the Postmaster General, and in the manner
and for the
Page 44 U. S. 724
purpose therein mentioned, the defendants were required to carry
the mail in two separate lines of coaches, and did so carry it
accordingly. It is admitted that the acts of the Legislature of
Ohio, and the orders of the Board of Public Works, in existence
when the tolls in question accrued, did not reduce or increase the
rates of toll, hereby established, below or above a sum necessary
to defray the expenses incident to the preservation and repair of
the said road, to the erection of gates and toll houses thereon,
and for the payment of the fees or salaries of the superintendent,
the collectors of tolls, and of such other agents as may be
necessarily employed in the preservation and repair of the same;
but it is not intended by this admission to preclude the defendants
from objecting to the validity or legality of said charge of toll
upon passengers, upon any ground they may think proper to take in
the argument. It is understood and agreed that this case shall not
in anywise prejudice the rights of the plaintiff, nor of the
defendants, in any other suit, upon any demand not included in the
facts hereby agreed. For the mutual convenience of the parties,
this case is narrowed down so as to present only the question
arising upon the facts above stated. Any material fact left out in
this agreement may be supplied, by proof, on the trial, by either
party, after giving the other party reasonable notice of such
intention. It is agreed by the parties that the whole number of
passengers charged with toll at all the gates, between the first
days of April and July, A.D. 1842, was ten thousand seven hundred
and fifty-six, and that the whole number chargeable between the
first day of July and October, A.D. 1842, was twelve thousand six
hundred and seventeen, and that if the plaintiff be entitled to
recover, judgment shall be entered for the sum of $1,075.58, with
interest from the first day of July, 1842, and $1,261.67 1/2, with
interest from the first day of October, A.D. 1842, and costs, or
for such other sums as may be due, computing the tolls on said
passengers at any other rate than that fixed by the Board of Public
Works, if the court deem it competent to adopt any other rate, with
interest on the gross sums due on the first days of July and
October above mentioned, from those times respectively, and
costs."
The court of common pleas were of opinion that judgment should
be entered for the plaintiff, and the damages were assessed at
$2,438.25.
The defendants carried the case to the Supreme Court of Ohio,
where, in December, 1843, the judgment of the court below was
affirmed, and the following certificate was annexed to the
record.
"And it is hereby certified, that on the trial of this cause the
defendants set up and claimed the right and authority to transport,
in their two daily lines of mail coaches, which carried the United
States mail, under a contract with the Postmaster General, and by
the authority of the United States, passengers traveling therein,
free of toll, along the United States road in the State of Ohio,
and
Page 44 U. S. 725
through the toll gates erected by the said state thereon; that
the said defendants set up and claimed this power and authority
under and by virtue of the act of Congress approved the 2d day of
March, A.D. 1831, entitled, 'An act declaring the assent of
Congress to the act of the General assembly of the State of Ohio,'
recited therein, and that in said case there were drawn in question
the construction, effect, and validity, of said act of Congress,
and the right and authority claimed by the said defendants under
the United States, by virtue thereof, and that the decision was
against the validity of said act to confer the right and authority
so claimed."
The defendants sued out a writ of error, to bring this decision
of the Supreme Court of Ohio before this Court.
Page 44 U. S. 740
MR. CHIEF JUSTICE TANEY delivered the opinion of the Court.
This case has arisen out of two acts of assembly, passed by the
Legislature of Ohio, one in 1837, and the other in 1838, and an
order of the Board of Public Works of that state, whereby a toll
has been imposed upon passengers traveling in the mail stage on the
Cumberland Road.
We have already, at the present term, fully expressed the
opinion of this Court, in relation to the compacts between the
United States and the States of Ohio, Pennsylvania, Maryland, and
Virginia, concerning this road, and the rules by which they ought
to be interpreted. It is only necessary, therefore, on this
occasion, to apply the principles there stated to the case before
us.
The material parts of the laws in question are the 4th section
of the act of 1837, and the 24th section of the act of 1838. The
first imposes a toll of three cents on every passenger in the mail
stage, at each toll gate, and the second authorizes the Board of
Public Works to revise and modify the rates of toll to be paid by
persons using the road, and in pursuance of this authority the
board passed an order raising the toll on each passenger in the
mail stage to ten cents. But no toll is charged, either by the law
or the order of the board, upon persons traveling in any other
carriage.
The 4th section of the act of 1831, whereby the State of Ohio
proposed, with the assent of Congress, to take charge of the road
and keep it in repair, contains a specific enumeration of the tolls
she intended to charge upon carriages of every description, and
other property, and after making this enumeration, the section
concludes with the following proviso:
"That no toll should be received or collected for the passage of
any stage or coach conveying the United States mail, or horses
bearing the same, or any wagon or carriage laden with the property
of the United States, or any cavalry or other troops, arms or
military stores belonging to the same or to any of the states
comprising this union, or any person or persons on duty
Page 44 U. S. 741
in the military service of the United States, or of the militia
of any of the states."
We shall hereafter speak of the 15th section of this act, which
has been supposed to justify the toll in question. But, subject to
the modifications, if any, authorized by that section, the entire
contract in relation to the tolls, offered by the state and
accepted by Congress, is to be found in the 4th; the residue of the
act containing nothing more than detailed regulations for the
collection and application of the tolls.
At the time this compact was made, it was well known that the
mail was always transported by contractors, and that whenever it
was conveyed in carriages, the vehicles belonged to them, and were
their own private property, and not the property of the United
States. It was equally well known that upon this road as well as
many others, the Postmaster General, in his contracts, uniformly
required that the mail should be carried in a stage or coach
capable of accommodating a certain number of passengers, the
presence of the passengers being regarded as adding to the safety
of the mail and superseding the necessity of any other guard.
This mode of transporting the mail must have been perfectly
known to the state in 1831, when the agreement was made, and in
providing for the exemption of carriages conveying the United
States mail, both parties must have intended to exempt the vehicles
usually employed in that service, and that carriages belonging to
the contractors, although carrying passengers, were to pay no toll,
while all other vehicles were to be charged at the rate specified
in the law. The reason of this exemption is evident, for a toll
charged upon the carriages of the contractor would, in effect, be a
charge upon the Post Office Department, since the contractor would
be obliged to make provision for this expense when bidding for the
contract, and regulate his bid so as to cover it.
In the proposition made by Ohio, nothing was said of a toll on
the passengers in a carriage of any kind, but the charge is made
upon the carriage itself, according to its description, and the
number of horses, without any regard to the number of persons that
may be traveling in it, and it is evident that it was at that time
supposed that the rates specified and agreed on would prove
sufficient to keep the road in repair, and that the United States
would always thereafter have the free use of it, for mail carriages
of the usual kind, without any burden upon them, direct or
indirect.
If the expectations of the parties had been realized, and the
tolls mentioned in the law had produced revenue enough to preserve
the road, no one, we think, would have supposed that tolls could be
collected from passengers in the mail stage, or that the specified
charges upon the carriages could have been reduced, and the
deficiency supplied by a toll upon persons traveling in the
carriages which conveyed the mail.
Page 44 U. S. 742
In the case of
Searight v. Stokes, we have already said
that with an agreement like this before us between the United
States and a state, we must look at the relation in which the
parties stood to one another, as well as to the subject matter of
the contract, and the object which the high contracting parties
intended to attain, and we must expound it upon principles of
justice, so as to accomplish the purposes for which it was made,
and not defeat their manifest intention, by a narrow and literal
interpretation of its words. And regarding it in this point of
view, we think it very clear that no part of the burden of
supporting this road was intended to be levied upon the United
States, but was to be obtained altogether from other sources, and
that the relative position and privileges of the mail coaches in
regard to tolls, as prescribed in the law, were to be always
afterwards maintained, unless a deficiency or superabundance of
revenue should render it necessary to increase or diminish the
rates fixed in the law. For if this were not the case, the whole
detailed and particular provision in relation to the things to be
charged, and the rates to be imposed, as set forth in the law of
Ohio, and so cautiously recited in the act of Congress consenting
to the surrender of the road, would be nugatory and without an
object. On the other hand, this mode of proceeding was the natural
and proper one, where two sovereignties were contracting with each
other by means of legislative action, and it was obviously adopted
by the parties in this instance in order to show the terms
proffered by Ohio, and assented to by Congress, and forms the
conditions of the compact between them, so far as their respective
rights were concerned.
We proceed to apply these principles to the question before us.
The law of the state, and the order of its Board of Public Works,
impose a toll upon everyone traveling in the mail stage, while the
passengers in every other vehicle are allowed to go free. If this
can be done, it is manifest that the United States will derive no
benefit from the compact, and so far from enjoying the privilege
for which they stipulated, and for which they paid so heavily in
the construction of the road, a large portion of the burden of
repairs will be thrown upon them. This is strikingly illustrated by
comparing the toll charged upon coaches similar to those employed
in conveying the mails, with the toll indirectly levied upon the
mail stage, by a charge upon its passengers. According to the rates
contained in the law of which we are speaking, a four-wheel
carriage, drawn by four horses, pays at each gate thirty-one and a
quarter cents, and if it is not conveying the mail, it pays nothing
on its passengers. This sum is therefore the whole amount of the
toll to which it is liable. Now the mails on this road have, we
understand, been always transported in coaches of the above
description, and although under the order of the Board of Public
Works, no toll is charged directly upon the carriage, yet every
passenger must pay ten cents at each
Page 44 U. S. 743
gate, so that the carriage of a mail contractor, containing six
passengers, pays nearly double as much as a like carriage owned by
anyone else with the same number. And what still more strongly
marks the disadvantages to which the United States are subjected by
this order of the board, these passengers may be persons in the
service of the United States, passing along the road in the
execution of some public duty, for the order makes no exceptions in
their favor. And although this toll, in form, is laid upon the
passengers and not upon the vehicle, the result is the same, for in
either case it is in effect a charge upon the proprietor of the
carriage, diminishing his profits in that portion of his business,
and when thus leveled exclusively at passengers in the mail stage,
it accomplishes indirectly what evidently cannot be done directly
by a toll upon the carriage, and in its consequences must seriously
affect the interests of the United States. For in bidding for a
contract upon a road so much traveled as this, the bidder would
undoubtedly be greatly influenced by the advantages which a
contract would give him in the conveyance of passengers, as his
carriages, when carrying the mail, are entitled to go free. But if
they, and they alone, are to be subjected to this burdensome and
unequal toll, it is obvious that he must seek to reimburse himself,
by enlarging his demand upon the government. Indeed, if this system
of levying toll can be sustained, the mischief may not stop here;
and it will be in the power of anyone of the states through which
the road passes so to graduate the tolls as to drive all passengers
from the mail stages into other lines, and by that means compel the
United States, contrary to their wishes, and contrary to the public
interest, to transport the mails in vehicles in which no passenger
would travel.
Nevertheless we do not mean to deny the right of the state to
impose a toll upon passengers in the mail stages, provided, the
power is exercised, in a manner and upon principles, consistent
with the spirit and meaning of the argument by which the road was
transferred to the care of the states. On the contrary, in the case
of
Searight v. Stokes and others, we have already said
that such a toll may be lawfully collected. But as no toll on
passengers had been proposed by the law of Pennsylvania, the
opinion, on that occasion, is expressed in general terms, as to the
right; the case then under consideration, not calling upon the
court to speak more particularly upon the subject. The Ohio law,
however, brings the question directly before us, and makes it
necessary to state more fully and precisely the opinion of the
Court.
The true meaning of the compact we understand to be this. The
carriages carrying the mail, with their passengers, traveling in
the known and customary manner, were to pass toll free, as well as
other vehicles laden with the property of the United States and the
persons employed in their service, as mentioned in the proviso
hereinbefore recited, and the road was to be kept in repair by
the
Page 44 U. S. 744
revenue derived from the tolls specified in the Ohio law,
according to the rates there set forth, provided they should prove
to be sufficient for the purpose. No toll was at that time proposed
upon passengers in any vehicle, and passengers in the mail stage
therefore had no peculiar privilege in going free, and merely
passed along the road upon the same terms with those who were
traveling in other carriages. And as the compact contains no
stipulation for the exemption of travelers in the mail stages, the
general government can demand no advantages in their behalf which
are not extended to passengers in other vehicles. But they have a
right to insist that the equality upon this subject, which the law
of Ohio originally proposed, shall still be maintained; that the
privilege and advantages intended to be secured to the carriages
conveying the mail, over those granted to other vehicles, shall be
preserved in substance and reality as well as in form, and that the
passengers in the mail stages shall not be selected and set apart
as the especial objects upon which burdens are to be laid and to
which travelers in other carriages are not to be subjected.
If, therefore, the revenue from the road, according to the rates
originally agreed on, was found to be inadequate, then the state
had undoubtedly a right to increase the rate on anything before
subject to toll, or might, if it was deemed more advisable, leave
the tolls as they stood and charge in addition to them a toll on
passengers. And if instead of selecting the persons traveling in
the mail coaches and laying the burden exclusively upon them, all
passengers in vehicles of any kind had been equally charged, the
real and substantial advantages and privileges to which the United
States are entitled under the agreement would have been preserved,
and the equality in relation to passengers originally existing
between the mail coaches and other carriages would not have been
disturbed. And it is in this manner only, in our judgment, and as a
toll in addition to that specifically stated in the contract, and
imposed equally upon passengers in every description of vehicle,
that persons traveling in the mail stages can be lawfully charged
without first obtaining the assent of Congress.
The 15th section of the law of 1831 has been relied on in the
argument as reserving to the state the right to make any alteration
it might afterwards think proper without regard to the interest of
the general government. It is true that this section begins with a
declaration that it shall be lawful for the general assembly at any
future session, without the assent of Congress, to change, alter,
or amend the act. But this clause evidently relates to the various
provisions made in the law for the collection and disbursement of
the money arising from the tolls proposed to be charged. The United
States could have no interest in these details, and they were
therefore properly retained in the hands of the state. And so in
regard to the privilege of passing free on certain occasions, given
by the
Page 44 U. S. 745
law, it is undoubtedly in the power of the state, if it thinks
proper, to revoke it, since the exemption was a mere voluntary act,
founded on no valuable consideration, but growing out of what was
then supposed to be a just and liberal policy, which the state
could afford to exercise, but which it had the right to change
whenever it was deemed necessary to do so. But a full and valuable
consideration had been paid by the United States for the privileges
reserved to them, and they were a part of the contract which
transferred the road to the care of the state. And this being the
case, the section in question cannot by any sound rule of
construction be regarded as inconsistent with the contract
contained in another part of the same law, and as placing the
rights secured to one party entirely at the discretion and the
control of the other. The reservations of power to the state,
evidently relate to subjects in which the general government had no
separate interest, and they would have been altogether unnecessary
and useless if the state had not considered the preceding part of
the law as the proffer of a compact which was to be obligatory upon
it, if assented to by Congress.
There is a clause in the law of 1837, which would appear to
distinguish between the mail stages, in relation to toll, where
more than one mail passed along the road on the same day. Upon this
point it may be proper to say, that, in the opinion of the court,
it rests altogether in the discretion of the Postmaster General,
where the power has been conferred on him by Congress, to determine
at what hours the mail shall leave particular places and arrive at
others, and to determine whether it shall leave the same place only
once a day or more frequently. Upon this point his decision is
absolute, when the discretion is committed to him by the laws of
the United States, and cannot be controlled by a state or by the
courts. And in the case of
Searight v. Stokes, when the
Court speaks of abuses by the contractors in the number of
carriages employed, and of the right of the court to enforce the
compact, it will be seen by a reference to the opinion, that it is
confined to cases where the mail bags, directed to leave the post
office at the same time, are unnecessarily divided among a number
of carriages in order to evade the payment of toll, and the opinion
expressed on that occasion by the court does not apply to stages
leaving the post office with mails at different hours, in obedience
to the orders of the department. In the latter case it is
immaterial whether the mails are light or heavy. The Postmaster
General is, upon this subject, the proper and only judge of what
the public interest and convenience requires, and his decision
cannot be questioned by the courts.
The provision upon this subject, however, appears to have been
intended to guard against abuses by contractors, rather than to
interfere with the powers of the Postmaster General. And in regard
to the toll imposed, as hereinbefore mentioned, if it is necessary
for the support of the road, it is in the power of the parties to
the compact
Page 44 U. S. 746
to modify it at their pleasure, and to give the state the power
it has exercised. But according to the terms of the contract, as it
was originally made, and still stands, the toll upon passengers in
the mail stages, laid in the manner hereinbefore stated, cannot
lawfully be demanded, and the judgment of the state court must
therefore be
Reversed.
MR. JUSTICE DANIEL.
From the decision just pronounced on behalf of the majority of
the Court I am constrained to dissent. Upon the principles involved
in the decision, so far as they have been assumed as the foundation
of rights in the federal government, or in the Postmaster General
as its agent or representative, independently of any agreement with
the State of Ohio, my opinion has already been declared. That
opinion was expressed on a similar point arising in the case of
Searight v. Stokes, during the present term; it is
unnecessary, therefore, on this occasion to repeat it. With respect
to the compact which is said to have been made between the federal
government and the State of Ohio, by the act of Congress
relinquishing the control of the Cumberland Road to the state, and
by the act of the Ohio legislature, assuming the control and
management of that road, it has not to my mind been shown that this
compact has in any respect been violated by the state. A cursory
view of the legislation, both by the state and by Congress, will
establish the very converse of any such inference. That the several
proceedings on the part of the state steer entirely clear of
collision with the letter of that compact, has not, so far as I
have heard, been even disputed. The statute of Ohio, passed on 4
February, 1831, after several provisions -- 1st, investing the
governor of the state with power to take under his care that
portion of the Cumberland Road comprised within the limits of the
state; 2dly, prescribing the rates of toll to be collected; 3dly,
laying down regulations for the police of the road; contains in the
second proviso of the 4th section the following enactment:
"Provided also that no toll shall be received or collected for
the passage of any stage or coach carrying the United States mail,
or horses bearing the same, or any wagon or carriage laden with the
property of the United States, or any cavalry or other troops, arms
or military stores belonging to the same, or to any of the states
of the union, or any person or persons on duty in the military
service of the United States &c."
The 15th section of the same law is in the following words:
"That it shall be lawful for the general assembly at any future
session thereof, without the assent of Congress, to change, alter,
or amend this act, provided that the same shall not be so changed,
altered, or amended as to reduce or increase the rates of toll
hereby established, below or above a sum necessary to defray the
expenses incident to the preservation and repair of the said road,
to the erection of gates and toll houses
Page 44 U. S. 747
thereon, and for the payment of the fees or salaries of the
superintendent, the collectors of tolls, and such other agents as
may be necessarily employed in the preservation and repair of the
same, according to the true intent and meaning of the act."
The act of Congress of 2 March, 1831, 4 Story L. 2250, is
nothing more than a literal recital of the law of Ohio, and an
entire and unqualified assent to and adoption of that law. These
statutes comprise all that has been ever done by the state and
federal governments which amounts to anything in the nature of an
agreement or compact between them in reference to the Cumberland
Road. Let us now inquire what it is that, by reasonable and proper
construction, these laws import? And it should, in their
examination, ever be borne in mind that whatsoever the law of Ohio
has ordained in reference to its subject matter, whatever rights or
powers it has claimed for the state in regard to it, the act of
Congress has unconditionally recognized the whole. The second
proviso of the 4th section, already quoted, contains no stipulation
that ordinary travelers or passengers, or any others indeed, or any
descriptions of property, save those expressly enumerated in the
proviso, shall pass upon the road free of toll. It concedes to the
federal government that stages carrying the mail,
i.e. the
carriages and the horses necessary for their use, and the mail
itself, should not pay toll, but with respect to private travelers,
and to everything within or without those carriages, the law is
entirely silent. By what correct implication, then, can the power
of the state to levy tolls on travelers in such carriages be taken
away. I can conceive of no implication tending to such a result,
which would not obviously do violence to the language of the
statute, as it would be every correct rule of construction, and to
every intendment consistent with the natural and plain objects of
the law. The fact that the state has exacted tolls on passengers in
the stages carrying the mails, only beyond a certain number of
carriages so employed, can by no correct reasoning affect the right
of the state in this matter, however it might be received as a
measure either of policy or liberality; for having the power
absolutely to exact tolls of all travelers on the road not exempted
by the proviso, this power carried with it, by every sound rule of
logic, the right to discriminate between the subjects of her power.
She had then a perfect right to declare that travelers in specified
carriages carrying the mail should pass free of toll, and that
those transported in other vehicles, although bearing the mail,
likewise should be subjected to the payment of toll. Such a
regulation the state had the power to enact, had it been the
dictate of mere caprice. A correct apprehension, however, of her
policy and interests in reference to this road, and in reference to
the accommodation of the public, will develop a more enlarged and
more equitable motive for the measures adopted by the state,
showing those measures to have been produced by the
Page 44 U. S. 748
force of supervening circumstances. It cannot be denied, that in
assuming the management of this road, the purpose of the state was
to maintain and preserve it as a commodious highway. By the title
of the law passed for its assumption,
viz., "An act for
the preservation and repair of the United States road," as well as
by every clause and provision of that law, this object is clearly
evinced. It is equally undeniable, that the means in contemplation
for the accomplishment of this object were the usual and natural
means by which artificial highways are supported,
viz.,
the tolls collectable on travelers and on property transported upon
it. The concession to the federal government of the free passage of
a portion of its mails over this road, and of the vehicles in which
they might be carried, was an act of fairness and liberality which
should not be made the pretext for abuse and monopoly, such as
must, if permitted, dry up the source whence the means of
maintaining the road are to be derived, and which would operate for
the exclusive advantage of the favorites of such monopoly, and for
the serious injury of the public. To guard against consequences
like these, the power reserved by the 15th section of the law of
1831 was retained by the state, a power expressly recognized to its
full extent by the act of Congress adopting the former law, and it
can as little be doubted, that, in the practical experience of
those consequences, and in the intention of applying a remedy for
them, the law of Ohio of March 9, 1838, and the order of the Board
of Public Works of the same state, had their origin.
But it is argued that the exaction of tolls on travelers in
stages carrying the mails, would be a violation of the compact
between the two governments, because it would enhance the demands
of contractors for transporting the mail, and thereby become a tax
upon the federal Treasury, and the same degree an impediment to the
conveyance of the mails. It is a sufficient reply to such an
argument to remark, that neither the law of Ohio nor the act of
Congress adopting that law, stipulates any exemption from tolls on
travelers, but the exemption is limited to carriages only, and it
is an inflexible rule of contract, too familiar to be commented on
here, that neither party, singly, can superadd a term or condition
to a contract completed. This argument is therefore utterly without
force, even if the effects it seeks to deduce could be
demonstrated. It is fallacious too in another respect. The monopoly
in support of which it is adduced, by enabling the mail contractor
to drive off all competition, whilst it puts it in his power to
withhold the tolls by payment of which the road would be supported,
enables him to practice the very extortions upon the government
which fair competition would be the surest means of preventing. But
conceding for the moment that a denial to the contractor of the
privilege now contended for might enhance the price of transporting
the mails, the question still very properly arises whether this
effect
Page 44 U. S. 749
(were the language of the law even doubtful) would justify the
extension to him of such a privilege? A just view of the
legislation of both the state and federal governments, and of the
obvious purposes of that legislation, must compel a negative answer
to this question. The purposes designed by this legislation were
the preservation and repair of the national road. Such are the
objects announced not only in the titles of the laws themselves,
but provided for in all their enacting sections; and the quo modo
declared by these enactments is the levying of tolls. Is it then
reasonable or logical, or rather is it not inconsistent and
contradictory, to attempt to deduce from them conclusions which
fall not within their terms, but which go to defeat every end which
must have been within the contemplation of the parties, for which
indeed these enactments all profess to have been made. Is not this
attempt in violation of all rules for the construction either of
statutes or contracts, which always preserve the main and obvious
intentions of legislators or of contracting parties, to the
exclusion of minor though seemingly contradictory considerations?
But the language of these laws is by no means equivocal. Except for
the exemption contained in the second proviso of the 4th section of
the Ohio statute of 1831, all mails and the carriages in which they
are transported, the troops, arms, and property of the United
States of every description, would have been subject to the payment
of tolls, and the exemption can be extended no father than the
plain and natural import of the language of that proviso will
justify.
Again, it has been said that the exaction of tolls from
travelers in the mail stages would be a violation of the contract,
because by such a demand travelers would be excluded from those
stages, and that the safety of the mails would be endangered by
this exclusion, it being assumed by this argument that the
travelers are to constitute a guard to the mails. To this seemingly
strange and far-fetched argument, it might be sufficient to answer,
as was done to the former, that no stipulation for the
transportation of such a guard (if by any violence to language
ordinary casual wayfarers could be so denominated), is contained in
the contract, and that the attempt thus to introduce any such
stipulation or engraft it upon that contract, is a palpable and
unwarrantable interpolation upon its terms and its objects. In the
next place, the propounders of this argument may be challenged to
show either the duty or the willingness of such travelers to take
upon themselves the hazards, the trouble, or the responsibilities
of guarding the United States mails. With equal cogency may those
who thus reason be called upon to prove, that amongst the
promiscuous multitudes who travel in stages, there may not be
comprised those who roam the country with the view of committing
depredations, and from whose designs the safety of the mails may be
most endangered.
Upon a full consideration of this case, I am brought to
conclude
Page 44 U. S. 750
that the acts of the Legislature of Ohio, subsequent in date to
2 March, 1831, and the proceedings of the Board of Public Works of
that state, founded upon those statutes, are in violation of no
principle or right guaranteed by the Constitution of the United
States nor of any acts of Congress passed in pursuance thereof, nor
of any contract at any time existing between the State of Ohio and
the federal government. I am farther of opinion that the aforesaid
laws of Ohio were on the contrary designed, and are of a tendency,
fairly and justly, to distribute the tolls collectible within her
limits, on the road in question, so as to make them properly
subservient to the views of the federal government and of the
government of Ohio, at the times of passing of the state law of
February 4, 1831, and the Act of Congress of 2 March, 1831, and in
conformity with the express language of those laws, and to prevent
unwarrantable monopoly, and serious if not fatal detriment to the
road. I think that the decision of the Supreme Court of Ohio, being
a correct exposition of the laws designed to effect these important
objects, ought therefore to be affirmed.
