THIS case was brought up by writ of error from the Circuit Court of the United States for the western district of Pennsylvania, and involved the right of the plaintiff in error, acting under the authority of the state of Pennsylvania, to collect tolls from the stage-coaches which carried the mail of the United States.
The circumstances under which the question arose were these:
On the 30th of April, 1802, and 3d of March, 1803, acts of Congress were passed, the effect of both of which taken together was, that three per cent. of the amount received for the sales of public land in Ohio, should be expended in making roads within the said state, and two per cent. of said fund be also expended in making public roads leading from the navigable waters emptying into the Atlantic to the Ohio river, upon certain conditions, which were accepted by Ohio.
On the 29th of March, 1806, Congress passed an act to provide for laying out the road by commissioners, and directed the President to pursue such measures as in his opinion should be proper to obtain the consent for making the road, of the state or states through which the same may have been laid out; the expense of the road to be charged to the two per cent. fund.
Pennsylvania, Virginia, and Maryland all gave their assent. Pennsylvania passed her law on the 9th of April, 1807, and gave power to those who were to make the road to enter upon land, dig, cut, and carry away materials, &c. The road was laid out from Cumberland, in Maryland, to Wheeling, on the Ohio river, and made; but a great difficulty having arisen, on the part of the United States, in keeping it in repair, the road fell into decay, and a new system of legislation was adopted to attain this object.
On the 4th of February, 1831, the state of Ohio passed a law for the preservation and repair of the United States road. It provided, that whenever the consent of Congress should be obtained, the governor of the state should take the road under his care, erect gates and toll-houses, appoint a superintendent, collectors of tolls, &c., with this proviso amongst others: '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.'
The law contained the necessary provisions for the preservation of good order upon the road, and also a stipulation that the tolls should be neither below nor above a sum necessary to defray the expenses incident to the preservation and repair of the same.
On the 2d of March, 1831, Congress assented to this act.
On the 4th of April, 1831, Pennsylvania passed an act 'for the preservation and repair of the Cumberland road.' It provided for the appointment of commissioners, who were directed to build toll-houses and erect toll-gates, to collect tolls, with the following exceptions: 'And provided, also, That nothing in this act shall be construed so as to authorize any tolls to be received or collected from any person or persons passing or repassing from one part of his farm to another, or to or from a mill, or to or from any place of public worship, funeral, militia training, elections, or from any student or child going to or from any school or seminary of learning, or from persons and witnesses going to and returning from courts: and provided, further, that no toll 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 4th section directed the amount of tolls, after deducting expenses, to be applied to the repairs and preservation of the road, and gave the commissioners power to increase or diminish the rates of tolls, provided that they should at no time be increased beyond the rates of toll established by an act incorporating a company to make a road from Harrisburg to Pittsburg, passed in 1806. The toll fixed by this act upon a coach and four horses was twenty cents for every five miles.
The 10th section was as follows: 'And be it enacted, &c., That this act shall not have any force or effect until the Congress of the United States shall assent to the same, and until so much of the said road as passes through the state of Pennsylvania be first put in a good state of repair, and an appropriation made by Congress for erecting toll-houses and toll-gates thereon, to be expended under the authority of the commissioners appointed by this act: Provided, the legislature of this state may, at any future session thereof, change, alter, or amend this act, provided that the same shall not be so 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 said road, for the payment of the fees or salaries of the commissioners, the collectors of tolls, and other agents. And provided, further, that no change, alteration, or amendment shall ever be adopted, that will in any wise defeat or affect the true intent and meaning of this act.'
On the 23d of January, 1832, Maryland passed an act, which, in its essential provisions, was the same with that of Pennsylvania; and on the 7th of February, 1832, Virginia passed a similar law.
On the 3d of July, 1832, Congress declared its assent to the above mentioned laws of Pennsylvania and Maryland in these words, 'to which acts the assent of the United States is hereby given, to remain in force during the pleasure of Congress,' and appropriated $150,000 to carry into effect the provisions of said acts; and on the 2d of March, 1833, assented to the act of Virginia, with a similar limitation.
On the 24th of June, 1834, Congress passed an act for the continuation and repair of the Cumberland road, appropriating $300,000 to that object.
The 4th section was as follows: 'And be it further enacted, That as soon as the sum by this act appropriated, or so much thereof as is necessary, shall be expended in the repair of said road, agreeably to the provisions of this act, the same shall be surrendered to the states respectively through which said road passes; and the United States shall not thereafter be subject to any expense for repairing said road.'
On the 1st of April, 1835, Pennsylvania passed a supplement to the act above mentioned, accepting the surrender by the United States, &c., &c.
On the 13th of June, 1836, Pennsylvania passed another act 'relating to the tolls on that part of the Cumberland road which passes through Pennsylvania, and for other purposes,' the 1st section of which was as follows: 'That all wagons, carriages, or other modes of conveyance, passing upon that part of the Cumberland road which passes through Pennsylvania, carrying goods, cannon, or military stores belonging to the United States, or to any individual state of the union, which are excepted from the payment of toll by the 2d section of an act passed the fourth of April, anno Domini eighteen hundred and thirty-one, shall extend only so far as to relieve such wagons, carriages, and other modes of conveyance from the payment of toll to the proportional amount of such goods so carried belonging to the United States or to any of the individual states of the union; and that in all cases of wagons, carriages, stages, or other modes of conveyance, carrying the United States' mail, with passengers or goods, such wagon, stage, or other mode of conveyance, shall pay half toll upon such modes of conveyance.'
On the 5th of April, 1843, another act was passed by Pennsylvania, the 39th section of which was as follows: 'That from and after the passage of this act, the commissioner of the Cumberland road shall have power to increase the rate of tolls on all stage-coaches drawn by four or more horses, to any sum not exceeding one dollar, at each gate upon said road within the state of Pennsylvania; and the said commissioner shall have the same power to enforce the payment and collection of tolls authorized by the act of thirteenth of June, eighteen hundred and thirty-six, relating to tolls on that part of the Cumberland road passing through Pennsylvania, by stopping such coach or coaches, as is provided by the act of fourth of April, eighteen hundred and thirty-one, for the preservation and repair of the Cumberland road; and to exercise all the means and remedies authorized by said acts for the collection of tolls and prevention of fraud on said road; reserving also to the said commissioner the right to sue or maintain any action therefor, as he might or could do at common law, in addition to the remedies herein provided.'
A suit was brought on the 29th November, 1842, in the Circuit Court of the United States for the western district of Pennsylvania, by agreement of parties, and a statement of facts, signed by the respective counsel, in the nature of a special verdict, as follows:
'It is agreed that this case be submitted to the court on the following statement of facts, as if found by a jury.
'The plaintiff is the commissioner and superintendent of so much of the Cumberland or National road as lies within the state of Pennsylvania, duly appointed under and by virtue of the laws of that state in such case provided, and is a citizen of said state. The defendants and Richard C. Stockton, whom they have survived, are and were citizens of Maryland. The defendants, together with the said Richard, whom they have survived, were joint partners in certain contracts for carrying the mail of the United States hereunto annexed. The route described in said contracts extended over so much of the road called the Cumberland or National road as lies within the commonwealth of Pennsylvania. Said contracts were duly executed between the postmaster-general of the United States thereto lawfully authorized by the laws of the United States, and said contractors in conformity with law. The mail of the United States was transported by said contractors in accordance with the provisions of said contracts, during the time therein stipulated, in carriages constructed in conformity with the directions and requirements of the postmaster-general; said carriages were constructed and accommodated as well for the transportation of the mail, as for carrying passengers and their baggage, but the number of said passengers was limited so as not to interfere with or impede the transportation of the mail, and in no case was any passenger carried when the transportation of the mail would be thereby retarded or interfered with. The said National road within the territorial limits of Pennsylvania was, so far and to such extent as the Constitution and laws of the United States, and the state of Pennsylvania, vested the same, the property of the United States, and had been constructed under the authority of said laws by the United States. The Constitution and laws of the United States, and of the commonwealth of Pennsylvania, bearing upon this subject, and the executive proceedings of the same respectively, are to be deemed and considered part of this agreed case. No tolls were paid by said contractors for or upon any vehicle or carriages employed or used by them for the transportation of said mail during the period of the existence of said contracts, notwithstanding said carriages ordinarily as aforesaid carried passengers, and said contractors received the passage money therefor for their own use.
'Under the laws of the United States and of the state of Pennsylvania, so much of said Cumberland or National road as lies within the limits of the state of Pennsylvania, was ceded by the United States, and accepted by Pennsylvania, upon the terms and conditions expressed and contained in said statutes. Since the year 1835, the state of Pennsylvania has held said road under and by virtue of said laws, and has performed the terms and conditions therein prescribed in every respect, unless the imposition and claim of tolls as herein stated is so far an infraction of the compact created by said laws. Payment of tolls imposed by and under the laws of Pennsylvania, has been demanded of said contractors by the plaintiff and his predecessors in office, for and on account of their carriages so as aforesaid employed in the transportation of the mail with passengers so carried as aforesaid; such payment of tolls has been resisted and refused by said contractors on the ground that the carriages employed in the transportation of the mail of the United States, on said road, were not under the said compact and laws legally liable to the payment of said tolls.
'The said carriages employed in the transportation of the mail were four-wheel carriages drawn by four horses each, and they ran over said route and through the six gates which are upon said road within the said state of Pennsylvania, twice daily, being their eastern and western routes. The full rates of toll established by law upon said road in Pennsylvania, for a daily line of four-horse post coaches or stages, were, at each of the said six gates, including the eastern and western routes, daily
From 1 January, 1836, to 1 April, 1837, 40 cents.
April, 1837, to _____ 1839, 60 cents.
After 1839, to present time, 100 cents.
'If, upon the foregoing state of facts, the court shall be of opinion that the defendants are liable to pay tolls for their carriages so employed in the transportation of the mail of the United States, judgment to be entered for the plaintiff for the sum of $6,000. If it shall be of opinion that the said carriages so employed are not subject to the payment of said tolls, then judgment to be entered for the defendants.
R. P. FLENNIKEN, for Plaintiffs.
RICH'D. S. COX, for Defendants.'
Upon this statement of facts the court below directed judgment to be entered in favor of the defendant, and to review this decision of the court the writ of error was brought.
Veech and Walker, for the plaintiffs in error.
Coxe and Nelson, attorney-general, for the defendants in error.
(This case was argued at the preceding term of the court by Flenniken and Walker, for the plaintiffs in error, and Coxe, for defendants, but the court ordered a re-argument at the present term.
Veech, for plaintiffs in error,
After reciting the history of the road, said, that if the road was the property of the United States, it might be considered a hardship that the mail could not pass free. But Pennsylvania had only granted the right of way. She was the last of the three states who argued that it should be made, and then stipulated that it should pass certain points.
The United States had no jurisdiction over the soil, and no more power over it than state officers had when they were making state roads. No one thought of making any provision for keeping the road in repair. As soon as ten miles were made, a difficulty arose upon this point. 1 Collection of Surveys, &c., published in 1839, by order of the Senate. Report of Shriver, communicated to Congress by Mr. Gallatin.
Mr. Gallatin said, that 'tolls were suggested, but that could only be done by authority of the state.' Same book, 133, 639.
Mr. Dallas, when Secretary of the Treasury, made a report on the subject, in which he said that provision ought to be made for keeping the road in repair, but that Congress, of itself, had no power in the premises. Doc. No. 59, page 653.
The road continued to decay until 1822, when a bill was passed to erect gates and collect tolls, which was vetoed by the President of the United States. Congress then appropriated a small sum for repairs. Mr. Buchanan moved an amendment, providing for a cession of the road to the states through which it passed, on condition that they would collect tolls and keep it in repair. There was no reservation in favor of the mail.
In 1823 the same amendment was offered, without any reservation.
Between 1828 and 1832, the road became so much out of repair that another movement was made. (The counsel here referred to the several acts which were passed by state legislatures and by Congress.) In the mean time, Pennsylvania had constructed roads leading from Philadelphia to Pittsburg, and the question was, whether she should turn the travel off her own roads to one which passed through only a small portion of the state. The Pennsylvania legislature struck out a part of the Ohio bill, which they had before them. When the Ohio bill was before ...