# Lake Superior and Mississippi Railroad Company v. United States/Dissent Miller

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* Opinion of the Court
* Dissenting Opinion Miller
United States Supreme Court
93 U.S. 442
Lake Superior and Mississippi Railroad Company v. United States
MR. JUSTICE MILLER, with whom concurred MR. JUSTICE CLIFFORD, MR. JUSTICE SWAYNE, and MR. JUSTICE DAVIS, dissenting.
I propose to state briefly the reasons why I cannot concur in the judgment of the court in these cases.
The grants of lands to these railroads are of great value, and were made before a single dollar was expended in their construction, and were so necessary to the success of these enterprises, that it may be safely assumed that the roads would not have been built without them.
The only compensation, which can properly be so called, to the United States, is found in the following proviso to the third section of the grant to the Atchison, Topeka, and Santa F e Railroad Company: 'The said railroad and branches shall be and remain public highways for the use of the government of the United States, free from all toll or other charge upon the transportation of any property or troops of the United States.' 12 Stat. 773. This act was passed in 1863; and a grant to the other company, passed in 1864, contained a proviso in the same words, with the substitution of the word 'for' in place of the word 'upon' preceding the word 'transportation.'
The only question in these cases is, What right or privilege did Congress intend to secure to the government by this proviso?
Notwithstanding the argument, built upon the assertion that railroads in England were first used as other roads by the persons who used them furnishing their own vehicles of transportation, and, perhaps, motive power, and that there may possibly exist at this day one or two short railroad tracks connecting coal-mines with other railroads, on which each mining company furnishes its own cars and locomotives, I venture the assertion, that there does not now exist in the United States, and has not ever existed, any railroad track over which the general public actually ran, each man for himself, his own cars propelled by his own locomotives, and managed and controlled by his own conductors, engineers, brakesmen, &c. In short, I deny that at the date of these grants there was in existence any practicable system anywhere in the United States by which the government or any one else could use the track of a railroad without using its usual and necessary appurtenances; namely, its cars, locomotives, d ep ots, agents, officers, and servants. I will not discuss the proposition, because its truth or falsehood is open to the observation and experience of all men who know any thing of the present railroad system of the world.
It follows, that if the United States secured any thing by the proviso, the use of the road by the government, for which no toll or other charge was to be made, must be the only use which is at all practicable, and the same use which is made of it by all others who have occasion to employ it.
Nothing is gained in the argument by the criticism on the phrase, 'public highway for the use of the government.' Railroads, such as we have described them, and limited in the manner of their use to their own rolling-stock, managed by their own officers, are, if not technically so, really public ways. They exist nowhere except by statutory authority of the government. They would not be tolerated for a moment in any State of the Union, unless they were free in some mode of use to all the public. They no more dare to refuse to transport persons and property of the general public over the whole or any part of their road, than a ferryman would refuse to do the same thing over his ferry.
They have received grants, corporate subscriptions, and municipal gifts, on the ground that they are for the public use, which could be valid on no other ground. Loan Association v. Topeka, 20 Wall. 661. And they are subject to such legislative regulations as are ferries, bridges, turnpikes, and other public means of conveyance and transportation, where they have secured no restriction on this legislative power either by contract or by constitutional provision.
The words 'public highways for the use of the government' only express that the roads are to be open to the use of the government as to others, and are introductory to the modification of the terms on which this use is by the contract conceded to the United States; namely, that it is to be 'free of toll or other charge upon the transportation of any property or troops of the United States.'
Much stress in the argument of counsel is laid upon the word 'toll,' which, it is said, is inapplicable in any other sense than a charge for the use of the road-bed. If we should concede this, it would advance the argument but little; for the use of the road is to be free from toll or other charge on transportation. Now, what is suit brought for in these cases but for a charge for transportation,-a charge upon transportation by these companies? If it is not a toll, it is another charge for transportation. If it is a toll, it is equally to be free.
But the word 'toll' has never been restricted to the limited sense here contended for.
In 6 Com. Dig. 349, art. 'Toll' a 'toll thorough,' which is the class of tolls relating to ways, is said to be 'a sum demanded for a passage through a highway or for a passage over a ferry.' In the case of the ferry, it surely will not be said that the toll is for the use of the river; nor will it be denied that it is for transportation over the river by means of the ferryman's boat, his labor, and if it be in a steamboat, it is the very class of means used by a railroad company. A 'toll thorough,' then, as understood at the common law, did include compen sation for something more than the use of a road-bed or a water-way, and did include, when applied to a proper case, compensation for the means of locomotion and transportation used by the party who claimed the right of toll.
So, also, 'toll' is the word used to express the compensation allowed by law or custom to a miller for grinding grain. 2 Bouv. Law Dict. 598. Now, the motive power of ancient mills in England was principally the water of rivers or other streams, and the owner of the grain did nothing but to bring his grist to the mill and carry it away. It is true that in this country there is, and has been, a class of mills run by horsepower, where the owner of the grain furnished the horses, and the other party the mill; and in these, also, the compensation is called by both statutes and customs, 'toll.' These instances are sufficient to show that neither by the common law of England, by its statutes, nor by customary usage there or in the United States, is the word 'toll' limited to compensation for the use of a road, a way, a mill, or a ferry, where the moving power comes from the party using it; but, on the contrary, that it is and always has been applied to compensation for such use when the thing used, and the motive power by which it was used, came from the party charging the toll, as well as when it came from the party paying it.
It is, therefore, a word properly used to express the charges made by railroad companies for transportation of persons and property in the manner which is now usual, and, I may add, universal.
We are seeking to ascertain the meaning which the Congress of the United States attached to a certain form of words; and if that body had, before the use of the words in the two statutes which we are construing, made any public and official declaration of the sense in which they used them, both the grantees in these later statutes, and this court, must be bound by that declaration.
The form of proviso under consideration had been adopted in many previous grants of land for railroad and other purposes; among others, in 1852, to the State of Missouri, for the Hannibal and St. Joseph and the Pacific Railroad.
Upon the outbreak of the rebellion these roads suffered very much from the intestine war of the State, and were called upon almost beyond the extent of their ability for transportation of troops, food, and munitions of war, for the government of the United States. It was found that if they were to do all this without compensation they would soon be bankrupt, and had better abandon their property to the government.
In view of this great hardship, unanticipated by any one at the date of their grants, Congress made provision by the joint resolution of March 6, 1862 (12 Stat. 614), for an equitable arrangement by which the companies could discharge some portion of their obligation, and yet receive from the government such compensation, during the existence of the war, and in view of the public exigency, as might be just and reasonable. But the preamble declared, that in doing this they did not waive the right of the United States to have their property and troops transported free from toll or other charges of said railroad, as contemplated by the provisions of the grant already referred to.
Here was, in 1862,-the year before the first of the grants under consideration was made, and two years before the other,-a declaration by Congress, placed on the statute-book, that they understood and claimed that this form of words gave them the right to have all their troops and property transported by these companies free of charge; and that as full performance was, in the condition of things at that time, impossible, they waived the exercise of that right as long as the war lasted, and would make a provisional arrangement for that time to enable the companies to get along.
Were not the parties who received and acted upon grants made the next year bound to know and understand the sense in which Congress used this form of words? Can they now be heard to say that another and far different meaning was attached to them by Congress from that which the same body asserted for them a year before? If they did not wish to accept the grants under that construction, they need not do it. But if they did accept them, and have sold the land, they are bound by the public statutory construction previously given by Congress of the meaning which they attached to the words used in the grants. For these reasons, I am of opinion that the judgment of the Court of Claims ought to be affirmed.

## Notes

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