# Searight v. Stokes/Opinion of the Court

* Court Documents
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* Opinion of the Court
* Dissenting Opinions McLean Daniel
United States Supreme Court
44 U.S. 151
Searight v. Stokes
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.C.OX, 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 Congress, Mr. Burnet, a senator from that state, said, that care was taken that the mail of the United States should pass free. 7 Reg. Deb., 287.
There are other differences between the laws of Pennsylvania and Ohio. The Virginia law is almost a copy of that of Ohio, although, in the spirit of old-fashioned Virginia hospitality, one who is visiting his neighbor is not allowed to be charged with any toll. Maryland copies the law of Pennsylvania. Maryland and Pennsylvania said, that the United States should first put the road in repair and erect toll-houses, whilst Virginia imposed no such restriction. The cost to Congress was about $750,000 in repairing the road and erecting gates. Before this time, the mail was carried in one line of coaches. The contract with the defendants for carrying it in 1835 was to pay them $9,708. In 1837, they were paid $27,600.
Under the present law, half toll is charged upon the coaches which carry the mail and passengers; if there is nothing but the mail they go free. Suppose we admit, that the mail is the property of the United States, can a coach be said to be 'laden with the property of the United States' when it has nine passengers in it and only a small mail bag? Or, could this be affirmed of a wagon laden with flour and one musket? Such a construction forces words from their true import. But the mail cannot be properly called the property of the United States. All carriers have a special property in their load to protect it from depredations. But what the law means is, that the United States must have an unqualified right of property in the subject matter. It will be necessary for the other side to make out two propositions:
1. That the mail is the property of the United States.
2. That a vehicle can be said to be laden with the mail when it has a single bag in it.
Coxe, for defendants in error.
(Mr. Coxe traced the history of the road as it is found in the laws and in 1 State Papers, tit. Miscellaneous, 432, 474, 714, 718, 940, 947.)
The error of the argument on the other side is in supposing that Ohio was the only party interested in the original construction of the road. The United States was a large landed proprietor, and wished to open an easy access to the lands in the west, in order that sales might be increased. Pennsylvania, it is true, did not cede the land over which the road passed, but she was deeply interested in the general result. The United States did not claim sovereign power over it. Still they have some interest in it, and we do not claim more than all incorporated companies have over the roads which they make. The Pennsylvania act is different from that of Ohio. But the reason is, that the road was completed in the former state and not in the latter. (Mr. Coxe here reviewed the particular provisions of the several acts.) Is there any ground to suppose, that Congress intended to make a different contract with different states? The conditions are essentially the same: one exempts the property of the United States, and the other, the mail. The act of Pennsylvania speaks of 'vehicles carrying the United States mail,' thus recognizing the mail as belonging to the government. The mail is one of the most valuable branches of the government, connecting itself closely with the business of the people, and a proportion of the mail matter is absolutely the property of the government, being communications from one public officer to another. The mail is fenced round with protection, by law, from robbery and depredation, and the bags and locks are public property. The act of congress of 1831, throughout, recognizes the mail as being the property of the government. Unless passengers were to go in the coaches, there would have to be a guard; but they are the best guard. The contracts require, that stages shall be suitable for passengers. The right of altering the contract is always reserved to the government, and although there may be three lines now instead of one formerly, yet the letter of the postmaster-general to the governor of Pennsylvania shows, that the mail could not now be carried in one coach. If there can be a toll imposed upon carriages when there are passengers, why not also when there are no passengers? and such an amount may be taxed as will prevent the running of the mail. A question of power cannot be decided by the greater or lesser exercise of it: 4 Wheat. 327, 351, 387, 417, 426, 429.
Nelson, attorney-general, on the same side.
The question lies in a narrow compass. It is, whether there is a contract between the United States on the one hand and Pennsylvania on the other; and if so, what is its nature? The act of 4th April, 1831, is the foundation of the compact. It proposed to provide for the repair of the road. Commissioners were appointed on condition that the United States would repair the road and erect gates. The act was to have no force until Congress assented to it, and appropriated money for toll-houses and gates. Here is a proposal, an offer for a contract. The 10th section says, that it shall not go into operation until an appropriation is made, but there is nothing said about ceding jurisdiction. Congress, in 1832, assented, on condition that Pennsylvania would execute her part of the contract and keep the road in repair. The power of Congress over internal improvements is not drawn into the case at all. The United States have a right to purchase the privilege of transporting the mail over any road. If Pennsylvania had said, give us $750,000, and your mail shall pass free, would not such a contract have been within the competency of the parties to make, and have been good? The consideration was a valuable one to Pennsylvania. She cannot now deny the right of the United States to make the road, because she accepted the cession, and actually holds title under the United States. 9 Laws U.S., 232, 233, act of surrender by United States.
There was a power reserved to Pennsylvania to change the regulations of the road, provided the compact was not infringed. But the act of 1836 asserts the authority of the legislature to vary the original terms, and levies half tolls. It cannot be said by the other side, that the two acts do not clash with each other, because the legislature says they do. That the mail is property is too plain to be argued.
What were the circumstances under which the acts were passed? The road had been in use for twelve or fourteen years before 1831. The mail was carried in stages, without paying any toll, in the same description of vehicle as that now taxed. There never was any other species of property of the United States carried on it; at least, the record does not show that there was. Was it a lure, then, to the government to spend $800,000 for the privilege of passing property free which it had never transported on the road, and was not likely to transport?
It has been said, that because Ohio was more specific in her legislation, therefore Pennsylvania did not mean to exempt the mail. But of what authority is the act of another state? The object was the same with them all.
We have the opinion of the executive and judicial departments of Pennsylvania, 2 Watts & S. (Pa.), 163.
But suppose there was no compact. The act of 1836 would still have been invalid. It is not a general law to collect tolls, but directed specifically against the mail. The property of the contractors is, no doubt, subject to taxation by a state; but a law levelled exclusively against the mail is a different thing. A power to destroy the means implies a power to destroy the thing itself. The case of McCulloch v. Maryland, 4 Wheat., was an attempt to tax the means by which the bank carried on its operations. In Weston v. City of Charleston, 2 Pet., 449, the same principle was established. It was held that loans were means to execute the powers of Congress, and to tax the stock would impair the means. So, 15 Pet., 435, 448. It has been said, that if these tolls are not collected the road will go out of repair. But can this be so? The whole amount charged is only $1200 a year, upon a road on which $800,000 were expended as late as 1835, built at the request of Pennsylvania, and which she pledged her faith to keep in repair. It has been said also that the privilege of passing free may be abused; that one hundred stages may be run upon the road. But the record presents no such case.
The stages are used bona fide by the contractors under their contract with the postmaster-general.
Walker, for plaintiffs in error, in reply and conclusion.
If the court shall be against us on the interpretation of the compact, we shall have to invite their attention to the following grave questions:
1. That the federal government has no power, under the Constitution, to construct a road within the limits of a state.
2. That the consent of a single state cannot enlarge the powers of the federal government, even within its own limits, and much less within the limits of another state.
3. That the two per cent. fund referred to in the several acts of appropriation, was exhausted before the road reached the Pennsylvania line.
4. That the consent of Pennsylvania, under the law of 9th of April, 1807, was based upon the appropriation of the two per cent. fund, and that alone, to the construction of said road within her limits.
5. That Congress possessed no power, under the Constitution, to collect toll upon said road in the state of Pennsylvania.
6. That the state of Pennsylvania had jurisdiction of said road, and the right to collect toll, and possessed this power as one of the rights not delegated in forming the Constitution of the union, and which could only be relinquished by an amendment of the Constitution.
7. That the right to collect toll in this case was never surrendered by the state of Pennsylvania.
The power of the federal government to construct roads has been abandoned for eight years past. The authority to establish post-roads, is merely to designate the road from point to point; and if the United States have no constitutional power, an act of one of the states cannot confer it. If there was no power to make the road, there was none to repair it or collect tolls; and an agreement to repair it was null and void, as being repugnant to the Constitution. The jurisdiction which Pennsylvania had, originally, over the soil of the road, was never surrendered; and if it had been, her legislature had no power to surrender it.
The speech of Mr. Burnet gives the history of this matter. The road was going to ruin, and Congress refused to appropriate. The friends of the road in Ohio obtained the passage of an act there. It was a favorite in that state, but not in Pennsylvania. The latter state had commenced a large system of improvement from Philadelphia to Pittsburg, and knew that this Cumberland road would draw off the travel from her own works. The law of Pennsylvania was, therefore, dissimilar from that of Ohio. Ohio did not require the road to be put in repair before accepting the cession, but Pennsylvania did. There are many other important differences between the two laws. Congress hastened to accept the Ohio law before Pennsylvania acted. What reason is there to think that Pennsylvania intended to imitate Ohio? There is none. If so, why was the phraseology changed? Some words must have been intentionally omitted, and yet this court is now asked to insert them, to change places with the legislature at Harrisburg, and do what it refused to do. Although, in general, the mail may be property, can it be considered so here, where there is a special exclusion? Every word of a statute must receive a meaning, unless the court are compelled to consider some words synonymous. In the Ohio law, the words 'mail' and 'property' are not synonymous: it exempts a 'stage or coach carrying the mail,' and a 'wagon or carriage, carrying property of the United States;' referring to different vehicles, carrying different things. The 'mail' is never carried in wagons. The government recently brought a large copper rock from Lake Superior. This could not have passed free unless under the head of property. Ohio had, therefore, two distinct provisions in her law; Pennsylvania only adopted one of them. The toll on 'stages' included the coach carrying the mail, in words and letters. The Ohio law asked her to exempt the mail, but she refused.
But does 'property' include the mail? Does a department, when making a schedule of its property, include the contents of the mail? The United States is only a common carrier, and paid as such. If not, then postage is exacted for carrying the property of the United States. It is the property of the persons interested; they can recover it at law. It has been said that because a common carrier has a special property in what he carries, therefore the United States have a property in the mail. But this technical principle was unknown to the farmers and mechanics who passed the act of 1831. Again, what is the meaning of 'laden?' it is the bulk of the load. If an officer of the United States puts a single box in a wagon, and the rest of the load is private property, could it be said, with any propriety that the wagon was 'laden' with the property of the government? To justify this, other words must be interpolated into the law, viz., 'in whole or in part.' But they are not there. If 'property' means the mail,' then the section must read, 'laden with the mail;' and if this be so, a single mail-bag will not exempt the coach from tolls. If the contractors had a steam-wagon conveying 100 passengers and a small mail-bag, would they all go free? It is said that we attack the mail, but we do not. The government pays turnpike gates everywhere else. When companies make roads with their own money, they allow the government to use them on the same terms with every one else. If it can seize upon roads, the postmaster-general would soon get rid of all difficulties with railroad companies. But we deny the right.
But upon whom does the tax fall in this case? The record says that stages conveying nothing but the mail pass free. It is then the passengers who pay the tax. The contractors must increase the fare. The government is not a party upon the record, and the postmaster-general has no business to come here by counsel. The whole difficulty has arisen from an effort of contractors to draw custom to their own line from roads where tolls are charged. All opposition stages, too, must be broken down on this road, because those stages will be charged with toll.
It is said that passengers are a guard to the mail. They do not consider themselves as paying their passage money for the privilege of guarding the mail. But, upon this theory, the contractors ought to be bound to carry some always; whereas the stages frequently run without any passengers.
Pennsylvania has been charged with violating her faith. But how can this be? She derives no revenue from the road; the whole of the tolls are expended upon repairs, and that too in a case where her own pecuniary interests suffer, because the travel is drawn away from her own roads. The true interest of the United States is to maintain our view of the case; because, if tolls enough are not collected to keep the road in repair, it must go to ruin, and then the contractors will charge a higher price for carrying the mail, even at a slower pace.
The act of 1836 is only declaratory of that of 1831, and not inconsistent with it. The latter exempts wagons when laden with the property of the United States in the whole; and the former proportions the exemption to the amount of property thus owned. The imposition of half-toll is, in fact, a privilege granted. The whole of the Pennsylvania legislation is one continued series, instead of being separate and inconsistent acts. The law of 1831 accepted the road, when it should be put in repair and toll-houses erected. The act of Congress, making the appropriation, did not pass till 1834; and in April, 1835, Pennsylvania accepted the surrender, and appointed commissioners. Between that time and the first of January, 1836, gates were erected, and the act of 1836, now under consideration, was passed without any loss of time. The case in Watts & Sergeant has been referred to, but here is a certified copy of the record, showing that, from 1836 to 1839, bills were made out quarterly. Before the act of 1836, all the stages, except the fast line, paid tolls. These were therefore collected under the act of 1831. There were only two lines, and the commissioners agreed to excuse one, on condition that the other paid. This was half-toll, and was the foundation of the law.
Mr. Chief Justice TANEY delivered the opinion of the court.
The question in this case is, whether the state of Pennsylvania can lawfully impose a toll on carriages employed in transporting the mail of the United States over that part of the Cumberland road which passes through the territory of that state? The dispute has arisen from an act of the legislature of Pennsylvania, passed in 1836, whereby wagons, carriages, stages, and other modes of conveyance, carrying the United States mail, with passengers or the goods of other persons, are charged with half the toll levied upon other vehicles of the like description. The plaintiff in error is the commissioner and superintendent of the road, appointed by the state. The defendants are contractors for carrying the mail, and they insist that their carriages, when engaged in this service, are entitled to pass along the road free from toll, although they are conveying passengers and their baggage at the same time. In order to obtain the opinion of this court upon the subject, an amicable action was instituted by the plaintiff in the Circuit Court of the United States for the western district of Pennsylvania, for the tolls directed to be collected by the law above mentioned, and the facts in the case stated by consent. The judgment of the Circuit Court was against the plaintiff, and it is now brought here for revision by writ of error.
The Cumberland road has been so often the subject of public discussion, and the circumstances under which it was constructed and afterwards surrendered to the several states through which it passes, are so generally known, that we shall forbear to state them further than may be necessary for the purpose of showing the character of the present controversy, and explaining the principles upon which the opinion of this court is founded.
The road in question is the principal line of communication between the seat of government and the great valley of the Mississippi. It passes through Maryland, Pennsylvania, Virginia, and Ohio, and was constructed at an immense expense by the United States, under the authority of different and successive acts of Congress: the states contributing nothing either to the making of the road or to the purchase of land over which it passes. They did nothing more than enact laws authorizing the United States to construct the road within their respective limits, and to obtain the land necessary for that purpose from the individual proprietors upon the payment of its value.
After the road had thus been made-although it was constructed with the utmost care, sparing no efforts to make it durable-it was still found to be incapable of withstanding the wear and tear produced by the number of carriages continually passing over it, engaged in transporting passengers, or heavily laden with agricultural produce or merchandize; and that either a very great expense must be annually incurred in repairs, or the road, in a short time, would be entirely broken up and become unfit for use. As no permanent provision had been made for these repairs, applications were made to Congress for the necessary funds; and as these demands upon the public treasury unavoidably increased, as the road was extended or longer in use, they naturally produced a strong feeling of dissatisfaction and opposition in those portions of the union which had no immediate interest in the road; and the constitutional power of Congress to make these appropriations was also earnestly, and upon many applications, contested by many of the eminent statesmen of the country. It therefore became evident, that unless some other means than appropriations from the public treasury could be devised, a work which every one felt to be a great public convenience, in which a large portion of the union was directly and deeply interested, and which had been constructed at so much cost, must soon become a total ruin.
In this condition of things, the state of Ohio, on the 4th of February, 1831, passed an act, proposing, with the assent of Congress, to take under its care immediately the portion of the road within its limits which was then finished, and the residue from time to time as different parts of it should be completed, and to erect toll gates thereon, and to apply the tolls to the repair and preservation of the road, specifying in the law the tolls it proposed to demand, and containing a proviso in relation to the property of the United States, and to persons in its service, in the following words: '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.' On the 2d of March, in the same year, Congress passed a law assenting to this act of Ohio, which is recited at large in the act of Congress, with all its provisions and stipulations.
The measure proposed by the state of Ohio seems to have been received with general approbation; and on the 4th of April, 1831, Pennsylvania, about two months after the passage of the law of Ohio, passed an act similar in its principles, but varying from it in some respects on account of the different condition of the road in the two states. In Ohio it was new and unworn, and therefore needed no repair; while in Pennsylvania, where it had been in use for several years, it was in a state of great dilapidation. While proposing, therefore, to take it under the care of the state, and to charge the tolls specified in the act, it annexed a condition that the United States should first put so much of it as passed through that state in good repair, and an appropriation be also made by Congress for erecting toll-houses and toll-gates upon it. The clause in relation to the passage of the property of the United States over the road, also varies from the language of the Ohio law, and is in the following words: '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 example of Pennsylvania was followed by Maryland and Virginia, at the next succeeding sessions of their respective legislatures: the law of Maryland being passed on the 23d of January, 1832, and the Virginia law on the 7th of February following. The proviso in relation to the property of the United States, in the Maryland act, is precisely the same with that of Pennsylvania, and would seem to have been copied from it, while the proviso in the Virginia law, upon this subject, follows almost literally the law of Ohio.
With these several acts of Assembly before them, Congress, on the 3d of July, 1832, passed a law declaring the assent of the United States to the laws of Pennsylvania and Maryland, to remain in force during the pleasure of Congress; and the sum of $150,000 was appropriated to repair the road east of the Ohio river, and to make the other needful improvements required by the laws of these two states. No mention is made of Virginia in this act of Congress, because in her law the previous reparation of the road, and the erection of toll-houses and gates, at the expense of the United States, was not in express terms made the condition upon which she accepted the surrender of the road; but the assent of Congress was afterwards given to her law by the act of March 2d, 1833, which, like the contract with the two other states, was to remain in force during the pleasure of Congress.
The sum appropriated, as above mentioned, was, however, found insufficient for the purposes for which it was intended, and by an act of June 24th, 1834, the further sum of $300,000 was appropriated; and this act states the appropriation to be made for the entire completion of the road east of the Ohio, and other needful improvements, to carry into effect the laws of Pennsylvania, Maryland, and Virginia, each of which is particularly referred to in the act of Congress; and further directs that as far as that sum is expended, or so much of it as shall be necessary, the road should be surrendered to the states respectively through which it passed. But so greatly had the road become dilapidated, that even these large sums were found inadequate to place it in a proper condition, and by the act of March 3d, 1835, the further sum of $346,188.58 was appropriated; but this law directed that no part of it should be paid or expended until the three states should respectively accept the surrender; and that the United States 'should not thereafter be subject to any expense in relation to the said road.' Under this act of Congress the surrender was accordingly accepted, in 1835, and the money applied as directed by the act of Congress, and from that time the road has been in the possession of and under the control of the several states, with toll-gates upon it. This is the history of the road, and of the legislation of Congress and the states upon that subject, (so far as it is necessary now to state it,) up to the time when the road passed into the hands of the states. We shall have occasion hereafter to speak more particularly of the act of Congress last mentioned, because it is the act under which the states finally took possession of the road.
When the new arrangement first went into operation no toll was charged in any of the states upon carriages transporting the mail of the United States; and no toll upon such carriages has ever yet been claimed in Ohio, Maryland, or Virginia. But on the 13th of June, 1836, the state of Pennsylvania passed a law, declaring that carriages, &c., carrying the property of the United States or of a state, which were exempted from the payment of toll by the act of 1831, should thereafter be exempted only in proportion to the amount of property in such carriage belonging to the United States or a state, 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.' And we are now to inquire whether this half-toll can be imposed upon carriages carrying the mail under the compact between the United States and Pennsylvania.
It will be seen from this statement, that the constitutional power of the general government to construct this road is not involved in the case before us; nor is this court called upon to express any opinion upon that subject; nor to inquire what were the rights of the United States in the road previous to the compacts hereinbefore mentioned. The road had in fact been made at the expense of the general government. It was the great line of connection between the seat of government and the western states and territories, affording a convenient and safe channel for the conveyance of the mails, and enabling the government thereby to communicate more promptly with its numerous officers and agents in that part of the United States west of the Alleghany mountains. The object of the compacts was to preserve the road for the purposes for which it had been made. The right of the several states to enter into these agreements will hardly be questioned by any one. A state may undoubtedly grant to an individual or a corporation a right of way through its territory upon such terms and conditions as it thinks proper; and we see no reason why it may not deal in like manner with the United States, when the latter have the power to enter into the contract. Neither do we see any just ground for questioning the power of Congress. The Constitution gives it the power to establish post-offices and post-roads; and charged, as it thus is, with the transportation of the mails, it would hardly have performed its duty to the country, if it had suffered this important line of communication to fall into utter ruin, and sought out, as it must have done, some circuitous or tardy and difficult route, when by the immediate payment of an equivalent it obtained in perpetuity the means of performing efficiently a great public duty, which the Constitution has imposed upon the general government. Large as the sum was which it paid for repairs, it was evidently a wise economy to make the expenditure. It secured this convenient and important road for its mails, where the cost of transporting them is comparatively moderate, instead of being compelled to incur a far heavier annual expense, as they must have done, if, by the destruction of this road, they had been forced upon routes more circuitous or difficult, when much higher charges must have been demanded by the contractors. Certainly, neither Ohio, nor Pennsylvania, nor Maryland, nor Virginia, appear from their laws to have doubted their own power or the power of Congress. But we do not understand, that Pennsylvania now upon any ground disputes the validity of the compact or denies her obligation to perform it; on the contrary, she asserts her readiness to fulfil it in all its parts, according to its true meaning; but denies the construction placed upon it by the United States. It is to that part of the case, therefore, that it becomes the duty of the court to turn its particular attention.
It is true, that in the law of Pennsylvania, and of Maryland also, assented to by Congress, the exemption of carriages engaged in carrying the mail is not so clearly and specifically provided for as in the laws of Ohio and Virginia. But in interpreting these contracts the character of the parties, the relation in which they stand to one another, and the objects they evidently had in view, must all be considered. And we should hardly carry out their true meaning and intention if we treated the contract as one between individuals, bargaining with each other with adverse interests, and should apply to it the same strict and technical rules of construction that are appropriate to cases of that description. This, on the contrary, is a contract between two governments deeply concerned in the welfare of each other; whose dearest interests and happiness are closely and inseparably bound up together, and where an injury to one cannot fail to be felt by the other. Pennsylvania, most undoubtedly, was anxious to give to the general government every aid and facility in its power, consistent with justice to its own citizens, and the government of the United States was actuated by a like spirit.
This was the character of the parties and the relation in which they stood. Besides, a considerable number of the citizens of the state had a direct interest in the preservation of the road; and the state had manifested its sense of the importance of the work by the act of Assembly of 1807, which authorized the construction of the road within its limits; and again in the resolution passed in 1828, by which it proposed to confer upon Congress the power of erecting gates and charging toll. Yet the only value of this road to the general government worth considering is for the transportation of the mails; and in that point of view it is far more important than any other post-road in the union. Occasionally, indeed, arms or military stores may be transported over it; and sometimes a portion of the military force may pass along it. But these occasions for its use, especially in time of peace, but rarely occur; the daily and necessary use of the road by the United States is as a post-road, forming an almost indispensable link in the chain of communication from the seat of government to its western borders.
Now, as this was well known to the parties, can it be supposed that when Pennsylvania, by her act of 1831, proposed to take the road, and keep it in repair from the tolls collected upon it, and exempted from toll carriages laden with the property of the United States, she yet intended to charge it upon the mails? That in return for the large expenditure she required to be made, before she would receive the road, she confined her exemption to matters of no importance, and reserved the right to tax all that was of real value? And when Congress assented to the proposition, and incurred such heavy expenses for repairs, did they mean to leave their mails through Maryland and Pennsylvania still liable to the toll out of which the road was to be kept in repair? Upon this point the act of Congress of March 3d, 1835, is entitled to great consideration. For it was under this law that the states finally took possession of the road and proceeded to collect the tolls. By so doing they assented to all the provisions contained in this act of Congress; and one of them is an express condition, that the United States should not thereafter be subject to any expense in relation to the road. Yet under the argument, the expenses of the road are to be defrayed out of the tolls collected upon it. And if the mails in Pennsylvania and Maryland may be charged, it will be found, that instead of the entire exemption, for which the United States so expressly stipulated, and to which Pennsylvania agreed, a very large proportion of the expenses of repair will be annually thrown upon them. We do not think that either party could have intended, when the contract was made, to burden the United States in this indirect way for the cost of repairs. So far as the general government is concerned, it might as well be paid directly from the Treasury. For nobody, we suppose, will doubt that this toll, although in form it is paid by the contractors, is in fact paid by the Post-office Department. It is not a contingent expense, which may or may not be incurred, and about which a contractor may speculate; but a certain and fixed amount, for which he must provide, and which, therefore, in his bid for the contract he must add to the sum he would be otherwise willing to take. It is of no consequence to the United States whether charges for repairs are cast upon it through its Treasury or Post-office Department. In either case it is not free from expense in relation to the road, according to the compact upon which it was surrendered to and accepted by the states.
Neither do the words of the law of Pennsylvania of 1831 require a different construction. The United States have unquestionably a property in the mails. They are not mere common carriers, but a government, performing a high official duty in holding and guarding its own property as well as that of its citizens committed to its care; for a very large portion of the letters and packages conveyed on this road, especially during the session of Congress, consists of communications to or from the officers of the executive department, or members of the legislature, on public service or in relation to matters of public concern. Nor can the word laden be construed to mean fully laden, for that would in effect destroy the whole value of the exemption, and compel the United States to pay a toll even on its military stores and other property, unless every wagon or carriage employed in transporting it was as heavily laden as it could conveniently bear. We think that a carriage, whenever it is carrying the mail, is laden with the property of the United States within the true meaning of the compact: and that the act of Congress of which we have spoken, and to which the state assented, must be taken in connection with the state law of 1831 in expounding this agreement. Consequently the half-toll imposed by the act of 1836 cannot be recovered.
The acts of assembly of Ohio and Virginia have been relied on in the argument by the plaintiff in error; and it has been urged that, inasmuch as the laws of these states, in so many words, exempt carriages carrying the mail of the United States, the omission of these words in the law in question shows that Pennsylvania intended to reserve the right to charge them with toll. And it is moreover insisted that, as the law of Ohio which contains this provision passed some time before the act of Pennsylvania, it ought to be presumed that the law of the latter was drawn and passed with a full knowledge of what had been done by the former, and that the stipulation in favor of the mail was designedly and intentionally omitted, because the state of Pennsylvania meant to reserve the right to charge it.
The court think otherwise. Even if the law of Ohio is supposed to have been before the legislature of Pennsylvania, it does not by any means follow that the omission of some of its words would justify the inference urged in the argument, where the words retained, by their fair construction, convey the same meaning. Indeed, if it appeared that the Ohio law was in fact before the legislature of Pennsylvania when it framed its own act upon the subject, it would rather seem to lead to a contrary conclusion. For it cannot be supposed that in the compact which the United States was about to form with four different states, and when the agreement with one would have been of no value without the others, Pennsylvania would have desired or asked for any privileges to herself which were not extended to the other states, nor that she would be less anxious to give every facility in her power to the general government when carrying out through her territory the important and necessary operations of the Post-office Department. Nor could she have supposed that Congress would give privileges to one state which were denied to others; and, after having done equal justice to all in the repair and preparation of the road wherever needed, make different contracts with the different states; and, while it bargained for the exemption of its mails in one or more of them, consent to pay toll in another. The fact that they are clearly and explicitly exempted from toll in Ohio and Virginia is a strong argument to show that it was intended to exempt them in all, and that the compacts with Pennsylvania and Maryland were understood and believed to mean the same thing, and to accomplish the same objects. And this conclusion is greatly strengthened by the fact that Maryland, where the words of the law are precisely the same with those of Pennsylvania, has never claimed the right to exact toll from carriages carrying the mail; nor did Pennsylvania claim it in the first instance, and they were always allowed to pass free until the act of 1836. Indeed that law itself appears to recognise the right of the mail and other property of the United States to go free, and the imposition of only half-toll would seem to imply that the state intended to reach other objects, and did not desire to lay the burden upon any thing that properly belonged to the United States. And so far as we can judge from its legislation, Pennsylvania has never to this day placed any other construction upon its compact than the one we have given, and has never desired to depart from it.
If we are right in this view of the subject, the error consists in the mode by which the state endeavored to attain its object. Unquestionably the exemption of carriages bearing the mail is no exemption of any other property conveyed in the same vehicle, nor of any person travelling in it, unless he is in the service of the United States, and passing along in pursuance of orders from the proper authority. Upon all other persons, although travelling in the mail-stage, and upon their baggage or any other property, although conveyed in the same carriage with the mail, the state of Pennsylvania may lawfully collect the same toll that she charges either upon passengers or similar property in other vehicles. If the state had made this road herself, and had not entered into any compact upon the subject with the United States, she might undoubtedly have erected toll-gates thereon, and if the United States afterwards adopted it as a post-road, the carriages engaged in their service in transporting the mail, or otherwise, would have been liable to pay the same charges that were imposed by the state on other vehicles of the same kind. And as any rights which the United States might be supposed to have acquired in this road have been surrendered to the state, the power of the latter is as extensive in collecting toll as if the road had been made by herself, except in so far as she is restricted by her compact; and that compact does nothing more than exempt the carriages laden with the property of the United States, and the persons and baggage of those who are engaged in their service. Toll may therefore be imposed upon every thing else in any manner passing over the road; restricting, however, the application of the money collected to the repair of the road, and to the salaries and compensation of the persons employed by the state in that duty.
It has been strongly pressed in the argument, that the construction placed upon the compact by the court would enable the contractors to drive every other line of stages from the road, by dividing the mail-bags among a multitude of carriages, each of which would be entitled to pass toll free, while the rival carriages would be compelled to pay it. And that by this means the contractors for carrying the mail would in effect obtain a monopoly in the conveyance of passengers throughout the entire length of the road, greatly injurious to the public, by lessening that disposition to accommodate which competition is sure to produce, and enhancing the cost of travelling beyond the limits of a fair compensation.
The answer to this argument is, that under the agreement they have made, according to its just import, the United States cannot claim an exemption for more carriages than are necessary for the safe, speedy, and convenient conveyance of the mail. And if measures such as are suggested were adopted by the contractors, it would be a violation of the compact. The postmaster-general has unquestionably the right to designate not only the character and description of the vehicle in which the mail is to be carried, but also the number of carriages to be employed on every post-road. And it can scarcely, we think, be supposed, that any one filling that high office, and acting on behalf of the United States, would suffer the true spirit and meaning of the contract with the state to be violated or evaded by any contractor acting under the authority of his department. But undoubtedly, if such a case should ever occur, the contract, according to its true construction, could be enforced by the state in the courts of justice; and every carriage beyond the number reasonably sufficient for the safe, speedy, and convenient transportation of the mail would be liable to the toll imposed upon similar vehicles owned by other individuals. In a case where an error in the post might be so injurious to the public, it would certainly be necessary that the abuse should be elearly shown before the remedy was applied. But there can be no doubt, that the compact in question, in the case supposed, would not shield the contractor, and upon a case properly made out and established, it would be the duty of a court of justice to enforce the payment of the tolls. No such fact, however, appears or is suggested in the case before us, and the judgment of the Circuit Court is therefore affirmed.

## Notes

* ↑ There is no doubt that the state may impose conditions and limitations upon corporations seeking to do business within its limits. State v. Doyle, 40 Wis., 175; S.C.. 22 Am. Rep., 692; Glen Falls Ins. Co. v. Judge of Jackson Circuit, 21 Mich., 580; S.C.. 4 Am. Rep., 504; Morse v. Home Ins. Co.,, 30 Wis., 496; S.C.. 11 Am. Rep., 580.
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