Under an act passed by the State of Maryland and an assent given
to it by Congress, no toll could be levied, for passing over the
Cumberland Road upon coaches which carried the United States
mail.
In 1843, the Legislature of Maryland passed an act imposing a
toll upon all passengers in mail coaches, and if it were not paid,
a toll of one dollar for each coach for every time that it passed
over the road.
The toll upon passengers in mail coaches was inconsistent with
the compact made between Maryland and Congress, and therefore
void.
And the toll, per coach, of one dollar is more properly a
commutation of tolls than a penalty, and therefore void also.
This was originally a suit brought in the County Court of
Alleghany County in Maryland by Jonathan Huddleson, superintendent
of that part of the United States Road within the limits of the
State of Maryland, against Stockton, Falls, Moore and Achison,
trading under the firm and style of Stockton, Falls & Co., who
were the contractors for carrying the mail across the Alleghany
Mountains.
The acts of Congress and of the states through which the
Cumberland Road passes were set forth in
44 U. S. 3 How.
151,
44 U. S. 720. A
brief summary is all that is now required.
In 1832, the State of Maryland passed an act relative to the
Cumberland Road, proposing to collect certain tolls upon it for the
purpose of keeping it in repair. This act contained the
following:
Page 53 U. S. 294
"And provided further that no tolls shall be received or
collected for the passage of any wagon or carriage laden with the
property of the United States, or any cannon or military stores
belonging to the United States or to any of the states composing
this Union."
The Congress of the United States, by an Act approved July 3,
1832, entitled "An act making appropriations for certain internal
improvements for the year 1832," gave the assent of Congress to the
provisions of the aforesaid act of the Legislature of Maryland in
the words following, to-wit:
"And of an act of the General Assembly of the State of Maryland
entitled 'An act for the preservation and repair of that part of
the United States road within the limits of the State of Maryland,
passed the twenty-third day of January, one thousand eight hundred
and thirty-two,' to which said acts the assent of the United States
is hereby given, to remain in force during the pleasure of
Congress."
It was admitted by agreement of counsel that Stockton, Falls
& Co., during the whole time for which the charge for the
transit of stages upon the said United States road was made, were
the carriers of the United States mails, in four-horse post coaches
under a contract with the Postmaster General of the United States,
two articles of which looked to the transportation of passengers
with the mail.
On 10 March, 1843, the Legislature of Maryland passed an act,
the first three sections of which were as follows:
"SEC. 1. Be it enacted by the General Assembly of Maryland that
from and after the passage of this act there shall be demanded and
received by the toll collectors on that part of the United States
road within the limits of the State of Maryland from the owner or
owners of every passenger or mail coach or stage passing the gates
on said road, the sum of four cents for every passenger carried in
the same, for every space of ten miles on said road, and so in
proportion for every greater or less distance, which shall be taken
and received in lieu of the tolls now established by law on all
coaches or stages with four horses passing over said road, and
which shall be collected, paid out, and expended as other tolls on
said road are collected, paid out and expended, under existing
laws."
"SEC. 2. And be [it] enacted that it shall be the duty of the
proprietor or proprietors, his, her, or their agent, to furnish
under oath, on the first Monday of every month, to the gate-keeper
at number one, a list showing the number of passengers transported
over said road in their respective coaches for the month next
preceding the time when said list is so returned."
"SEC. 3. And be it enacted that in the event of said
proprietors'
Page 53 U. S. 295
or agents' failing or refusing to comply with the provisions of
the second section of this act, then and in that case it shall be
the duty of the gate-keeper at gate number one to demand of and
receive from such proprietor or proprietors so failing the sum of
one dollar for each and every stage coach passing over said road
its entire length."
In the agreed statement of facts in the county court, the
counsel further agreed as follows:
"It is agreed that the stage coaches, for which the sum of one
dollar each is sought to be recovered in this action, were
four-horse stage coaches, used and employed by the defendants in
the transportation of the United States mails under the contract in
that behalf before mentioned, and that the passengers for the
failure of the defendants to furnish the lists of whom, under the
act of Legislature of Maryland last above mentioned, the said sum
of one dollar per stage coach is charged and demanded in this
action were passengers transported in the said coaches, carrying
the said United States mails as aforesaid."
"It is further admitted that the number of coaches in which the
said mails were carried were necessary for the said carriage of the
said mails, and that there was no unfairness nor fraud on the part
of the defendants in dividing the said mails so as to use a greater
number of coaches for the carriage of said mails than were actually
necessary for such purpose."
"It is further admitted that the defendants did carry passengers
daily in the said four-horse coaches, and that the said defendants
did not comply with the provisions of the second section of the Act
of the General Assembly of Maryland aforesaid passed on 10 March,
1843, as aforesaid by returning a list on the first Monday of every
month or at any other time showing the number of passengers thus
transported over the said road in the said coaches. It is admitted
that the said acts of assembly of Maryland did not increase the
tolls above a sum necessary to defray the expenses incident to the
preservation and repair of said road."
"If, upon this statement of facts, the court shall be of opinion
that the plaintiff is entitled to recover, either upon the present
declaration or upon an amended declaration, for the four cents per
passenger for every ten miles, the judgment to be entered for the
plaintiff for seven hundred and sixteen dollars. If the court shall
be of opinion that the plaintiff is not entitled to recover in
either case, then judgment to be given for the defendants; either
party will be at liberty to appeal to the Court of Appeals or sue
out a writ of error."
Upon this statement of facts, the county court gave judgment for
the plaintiff, for the amount mentioned in the statement.
Page 53 U. S. 296
Achison, who was the representative of Stockton, Falls &
Co., carried the case to the Court of Appeals of Maryland, where
the judgment was affirmed, and he then brought it up to this
Court.
MR. JUSTICE CURTIS delivered the opinion of the Court.
This action was brought by the defendant in error, as
superintendent of that part of the National Road lying within the
State of Maryland, to recover a sum of money from the plaintiff in
error as the owner of stage coaches passing over that road and
conveying passengers and the mails of the United States. The Court
of Appeals for the Western Shore of the State of Maryland having
rendered a final judgment in favor of the plaintiff, the defendant
brought the case here by a writ of error under the twenty-fifth
section of the Judiciary Act.
The nature and extent of the compact between the United States
and the several States of Ohio, Virginia, Maryland, and
Pennsylvania touching the parts of the road lying within the limits
of each of those states, having been much considered by this Court
in the cases of
Searight v.
Stokes, 3 How. 151, and
Neil v.
State of Ohio, 3 How. 720, it is only necessary to
state some of the conclusions there arrived at and apply them to
the law of Maryland now in question.
In the second of those cases it was decided that the State of
Ohio could not change the tolls fixed by its act, which Congress
assented to, so as to vary the relative position and privileges of
mail coaches in regard to tolls as prescribed by that act.
Page 53 U. S. 297
This decision is equally applicable to the original act of
Maryland, to which Congress gave its assent, and the first inquiry
is whether the subsequent act of Maryland, now in question, will
bear that test. The second section of the law of Maryland, to which
Congress gave its assent, imposed, among other tolls, the
following:
"For every chariot, coach, coachee, stage, wagon, phaeton,
chaise, or other carriage, with two horses and four wheels, twelve
cents; for either of the carriages last mentioned, with four
horses, eighteen cents."
And inasmuch as coaches conveying the mail were not subject to
any toll, there was by this law a discrimination in favor of mail
coaches, their proprietors bearing none of the burden of supporting
the road, while the proprietors of other four-horse coaches did
bear a part of their burden. On 10 March, 1843, the General
Assembly of Maryland passed the act now under consideration, the
material provisions of which are as follows:
"An act to amend the act entitled a supplement to an act
entitled an act for the preservation and repair of that part of the
United States road within the limits of the State of Maryland."
"SEC. 1. Be it enacted by the that from and after the passage of
this act there shall be demanded and received by the toll
collectors on that part of the United States Road within the limits
of the State of Maryland, from the owner or owners of every
passenger or mail coach or stage passing the gates on said road,
the sum of four cents for every passenger carried in the same, for
every space of ten miles on said road, and so in proportion for
every greater or less distance, which shall be taken and received
in lieu of the tolls now established by law on all coaches or
stages with four horses passing over said road, and which shall be
collected, paid out, and expended, as other tolls on said road are
collected, paid out and expended, under existing laws."
"SEC. 2. And be it enacted that it shall be the duty of the
proprietor, or proprietors, his, her, or their agent, to furnish
under oath, on the first Monday of every month, to the gate-keeper
at number one, a list showing the number of passengers transported
over said road in their respective coaches, for the month next
preceding the time when said list is so returned."
"SEC. 3. And be it enacted that in the event of said
proprietors' or agents' failing or refusing to comply with the
provisions of the second section of this act, then and in that case
it shall be the duty of the gate-keeper at gate number one to
demand of and receive from such proprietor or proprietors so
failing the sum of one dollar for each and every stage coach
passing over said road its entire length. "
Page 53 U. S. 298
The discrimination which under the original law was made in
favor of the proprietors of mail coaches using the road is not only
destroyed by this law, but all toll is removed from the proprietors
of other four-horse coaches, and a toll is imposed upon the
proprietors of mail coaches. It was held in both the former
decisions, that the stipulation in the compact that the United
States should not thereafter be subject to any expense to maintain
the road, was inconsistent with the imposition of a tax upon the
contractors for carrying the mail in four-horse coaches, because
the United States, requiring the mail to be so carried, would thus
indirectly be made, through the enhancement of the price for this
service, to bear a part of that burden. The effect of this law of
Maryland is therefore to impose upon the United States, through the
contractors for carrying the mail in four-horse coaches, a tax for
the support of the road. It is argued that it is tax upon the
passengers, and not within the former decisions. But we do not so
consider it. It is true, if he were to carry no passengers and make
the required returns of that fact, the proprietor would not be
liable under this law to pay any toll. But the regulations of the
Post-Office Department require him to take passengers for the
security of the mail. If he carry the mail, he must also be a
carrier of passengers, and this law would not have imposed a toll
dependent upon the carriage of passengers in mail coaches unless it
considered they would be carried. The real effect and meaning of
the law is therefore to impose a tax on the proprietor of a
four-horse coach which carries the mail, making the amount of that
tax depend on the number of passengers carried. Now the objection
is not to the amount, but to the existence of the tax. Not having
the power to impose any tax, it is no answer to say its amount is
regulated by the number of passengers.
This action is brought under the third section of the act to
recover from the proprietor of mail coaches the sum of one dollar
for every mail stage coach passing over the road. It is contended
this is not a toll, but a penalty for not complying with the
directions contained in the second section of the act to make
returns. We think it more properly a commutation as to amount, for
the tolls payable under the first section. It fixes their amount by
operation of law and without regard to the number of passengers
carried, and is certainly subject to difficulties quite as great as
would attend a demand for the tolls under the first section.
Our opinion is that by reason of the compact between the United
States and the State of Maryland, the tolls sued for could not be
legally demanded, and that the decision of the Court of Appeals was
erroneous and must be
Reversed.
Page 53 U. S. 299
Order
This cause came on to be heard on the transcript of the record
from the Court of Appeals of the Western Shore of the State of
Maryland, and was argued by counsel. On consideration whereof it is
now here ordered and adjudged by this Court that the judgment of
the said Court of Appeals in this cause be and the same is hereby
reversed with costs, and that this cause be and the same is hereby
remanded to the said Court of Appeals in order that such further
proceedings may be had therein in conformity to the opinion of this
Court as to law and justice may appertain.
