# Neil v. Ohio/Dissent Daniel

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* Dissenting Opinion Daniel
United States Supreme Court
44 U.S. 720
Neil v. Ohio
Mr. Justice DANIEL.
From the decision just pronounced on behalf of the majority of the court, I am constrained to dissent. Upon the principles involved in the decision, so far as they have been assumed as the foundation of rights in the federal government, or in the postmaster-general as its agent or representative, independently of any agreement with the state of Ohio, my opinion has already been declared. That opinion was expressed on a similar point arising in the case of Searight v. Stokes et al., during the present term; it is unnecessary, therefore, on this occasion to repeat it. With respect to the compact which is said to have been made between the federal government and the state of Ohio, by the act of Congress relinquishing the control of the Cumberland road to the state, and by the act of the Ohio legislature, assuming the control and management of that road, it has not to my mind been shown that this compact has in any respect been violated by the state. A cursory view of the legislation, both by the state and by Congress, will establish the very converse of any such inference. That the several proceedings on the part of the state steer entirely clear of collision with the letter of that compact, has not, so far as I have heard, been even disputed. The statute of Ohio, passed on the 4th of February, 1831, after several provisions-1st, investing the governor of the state with power to take under his care that portion of the Cumberland road comprised within the limits of the state; 2dly, prescribing the rates of toll to be collected; 3dly, laying down regulations for the police of the road; contains in the second proviso of the 4th section the following enactment: 'Provided also, that no toll shall be received or collected for the passage of any stage or coach carrying the United States mail, or horses bearing the same, or any wagon or carriage laden with the property of the United States, or any cavalry or other troops, arms or military stores belonging to the same, or to any of the states of the union; or any person or persons on duty in the military service of the United States, &c., &c.' The 15th section of the same law is in the following words: 'That it shall be lawful for the General Assembly at any future session thereof, without the assent of Congress, to change, alter, or amend this act; provided that the same shall not be so changed, altered, or amended, as to reduce or increase the rates of toll hereby established, below or above a sum necessary to defray the expenses incident to the preservation and repair of the said road, to the erection of gates and toll-houses thereon, and for the payment of the fees or salaries of the superintendent, the collectors of tolls, and such other agents as may be necessarily employed in the preservation and repair of the same, according to the true intent and meaning of the act.' The act of Congress of the 2d of March, 1831, (4 Story L. U.S., p. 2250,) is nothing more than a literal recital of the law of Ohio, and an entire and unqualified assent to, and adoption of, that law. These statutes comprise all that has been ever done by the state and federal governments, which amounts to any thing in the nature of an agreement or compact between them in reference to the Cumberland road. Let us now inquire what it is that, by reasonable and proper construction, these laws import? And it should, in their examination, ever be borne in mind, that whatsoever the law of Ohio has ordained in reference to its subject matter; whatever rights or powers it has claimed for the state in regard to it, the act of Congress has unconditionally recognized the whole. The second proviso of the 4th section, already quoted, contains no stipulation that ordinary travellers or passengers, or any others indeed, or any descriptions of property, save those expressly enumerated in the proviso, shall pass upon the road free of toll. It concedes to the federal government that stages carrying the mail, i. e. the carriages and the horses necessary for their use, and the mail itself, should not pay toll; but with respect to private travellers, and to every thing within or without those carriages, the law is entirely silent. By what correct implication, then, can the power of the state to levy tolls on travellers in such carriages be taken away. I can conceive of no implication tending to such a result, which would not obviously do violence to the language of the statute, as it would be every correct rule of construction, and to every intendment consistent with the natural and plain objects of the law. The fact that the state has exacted tolls on passengers in the stages carrying the mails, only beyond a certain number of carriages so employed, can by no correct reasoning affect the right of the state in this matter, however it might be received as a measure either of policy or liberality; for having the power absolutely to exact tolls of all travellers on the road not exempted by the proviso, this power carried with it, by every sound rule of logic, the right to discriminate between the subjects of her power. She had then a perfect right to declare that travellers in specified carriages carrying the mail should pass free of toll, and that those transported in other vehicles, although bearing the mail, likewise should be subjected to the payment of toll. Such a regulation the state had the power to enact, had it been the dictate of mere caprice. A correct apprehension, however, of her policy and interests in reference to this road, and in reference to the accommodation of the public, will develop a more enlarged and more equitable motive for the measures adopted by the state, showing those measures to have been produced by the force of supervening circumstances. It cannot be denied, that in assuming the management of this road, the purpose of the state was to maintain and preserve it as a commodious highway. By the title of the law passed for its assumption, viz., 'An act for the preservation and repair of the United States road,' as well as by every clause and provision of that law, this object is clearly evinced. It is equally undeniable, that the means in contemplation for the accomplishment of this object were the usual and natural means by which artificial highways are supported, viz.: the tolls collectable on travellers and on property transported upon it. The concession to the federal government of the free passage of a portion of its mails over this road, and of the vehicles in which they might be carried, was an act of fairness and liberality which should not be made the pretext for abuse and monopoly, such as must, if permitted, dry up the source whence the means of maintaining the road are to be derived, and which would operate for the exclusive advantage of the favorites of such monopoly, and for the serious injury of the public. To guard against consequences like these, the power reserved by the 15th section of the law of 1831 was retained by the state, a power expressly recognized to its full extent by the act of Congress adopting the former law; and it can as little be doubted, that, in the practical experience of those consequences, and in the intention of applying a remedy for them, the law of Ohio of March 9th, 1838, and the order of the Board of Public Works of the same state, had their origin.
But it is argued that the exaction of tolls on travellers in stages carrying the mails, would be a violation of the compact between the two governments, because it would enhance the demands of contractors for transporting the mail, and thereby become a tax upon the federal treasury, and the same degree an impediment to the conveyance of the mails. It is a sufficient reply to such an argument to remark, that neither the law of Ohio nor the act of Congress adopting that law, stipulates any exemption from tolls on travellers, but the exemption is limited to carriages only; and it is an inflexible rule of contract, too familiar to be commented on here, that neither party, singly, can superadd a term or condition to a contract completed. This argument is therefore utterly without force, even if the effects it seeks to deduce could be demonstrated. It is fallacious too in another respect. The monopoly in support of which it is adduced, by enabling the mail contractor to drive off all competition, whilst it puts it in his power to withhold the tolls by payment of which the road would be supported, enables him to practise the very extortions upon the government which fair competition would be the surest means of preventing. But conceding, for the moment, that a denial to the contractor of the privilege now contended for, might enhance the price of transporting the mails, the question still very properly arises, whether this effect (were the language of the law even doubtful) would justify the extension to him of such a privilege? A just view of the legislation of both the state and federal governments, and of the obvious purposes of that legislation, must compel a negative answer to this question. The purposes designed by this legislation were the preservation and repair of the National road. Such are the objects announced, not only in the titles of the laws themselves, but provided for in all their enacting sections; and the quo modo declared by these enactments is the levying of tolls. Is it then reasonable or logical, or rather is it not inconsistent and contradictory, to attempt to deduce from them conclusions which fall not within their terms, but which go to defeat every end which must have been within the contemplation of the parties; for which indeed these enactments all profess to have been made. Is not this attempt in violation of all rules for the construction either of statutes or contracts, which always preserve the main and obvious intentions of legislators or of contracting parties, to the exclusion of minor though seemingly contradictory considerations? But the language of these laws is by no means equivocal. Except for the exemption contained in the second proviso of the 4th section of the Ohio statute of 1831, all mails and the carriages in which they are transported, the troops, arms, and property of the United States of every description, would have been subject to the payment of tolls; and the exemption can be extended no father than the plain and natural import of the language of that proviso will justify.
Again, it has been said, that the exaction of tolls from travellers in the mail-stages would be a violation of the contract, because by such a demand travellers would be excluded from those stages, and that the safety of the mails would be endangered by this exclusion; it being assumed by this argument that the travellers are to constitute a guard to the mails. To this seemingly strange and far-fetched argument, it might be sufficient to answer, as was done to the former, that no stipulation for the transportation of such a guard, (if by any violence to language ordinary casual wayfarers could be so denominated,) is contained in the contract; and that the attempt thus to introduce any such stipulation or engraft it upon that contract, is a palpable and unwarrantable interpolation upon its terms and its objects. In the next place, the propounders of this argument may be challenged to show either the duty or the willingness of such travellers, to take upon themselves the hazards, the trouble, or the responsibilities of guarding the United States mails. With equal cogency may those who thus reason be called upon to prove, that amongst the promiscuous multitudes who travel in stages, there may not be comprised those who roam the country with the view of committing depredations, and from whose designs the safety of the mails may be most endangered.
Upon a full consideration of this case, I am brought to conclude, that the acts of the legislature of Ohio, subsequent in date to the 2d of March, 1831, and the proceedings of the Board of Public Works of that state, founded upon those statutes, are in violation of no principle or right guarantied by the Constitution of the United States, nor of any acts of Congress passed in pursuance thereof; nor of any contract at any time existing between the state of Ohio and the federal government. I am farther of opinion, that the aforesaid laws of Ohio were on the contrary designed, and are of a tendency, fairly and justly, to distribute the tolls collectible within her limits, on the road in question, so as to make them properly subservient to the views of the federal government and of the government of Ohio, at the times of passing of the state law of February 4th, 1831, and the act of Congress of the 2d of March, 1831; and in conformity with the express language of those laws; and to prevent unwarrantable monopoly, and serious if not fatal detriment to the road. I think that the decision of the Supreme Court of Ohio, being a correct exposition of the laws designed to effect these important objects, ought therefore to be affirmed.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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