UNITED STATES SUPREME COURT DECISIONS ON-LINE

Under the acts of Congress and of the State of Ohio, relating to the surrender and acceptance of the Cumberland Road, a toll charged upon passengers traveling in the mail stages without being charged also upon passengers traveling in other stages is against the contract, and void.

It rests altogether in the discretion of the Postmaster General to determine at what hours the mail shall leave particular places and arrive at others and to determine whether it shall leave the same place only once a day or more frequently.

It is not, therefore, the mere frequency of the departure of carriages carrying the mail that constitutes an abuse of the privilege of the United States, but the unnecessary division of the mail bags amongst a number of carriages in order to evade the payment of tolls. clubjuris

Page 44 U. S. 721

This case involved the construction of the acts of Congress and the State of Ohio relative to the cession of the Cumberland Road, which are narrated in a preceding part of this volume in the case of Searight v. Stokes, 4 U.S. 151.

It is proper, however, to state the law of Ohio with more particularity than it was necessary to do in the report of that case. The proviso contained in the 4th section of the act of 1831 was there recited, but the 5th section was not. They are as follows:

Sec. 4 lays tolls, and adds:

"Provided that nothing in this act shall be construed so as to authorize any tolls to be received or collected from any person passing to or from public worship, or to or from any muster, or to or from his common business on his farm or woodland, or to or from a funeral, or to or from a mill, or to or from his common place of trading or marketing within the county in which he resides, including their wagons, carriages and horses, or oxen drawing the same, 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."

"SEC. 5. That it shall be lawful for the general assembly, at any future session thereof, without the consent 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 of such other agents as may be necessarily employed in the preservation and repair of the same, according to the true intent and meaning of this act."

On 6 February, 1837, the State of Ohio passed an act containing, among other provisions, the following, viz.:

"SEC. 4. That one daily stage, coach, or other vehicle, and no more, with the horses drawing the same, belonging to any contractor or contractors for carrying the United States mail on said road, with the passengers therein, shall be permitted to pass in each direction free from the payment of tolls; and each additional stage, coach, or other vehicle belonging to such contractor or contractors, although the same may contain a mail, or portion thereof, shall be charged with the same tolls as other vehicles of the like kind. But if the Postmaster General shall order the mail to be divided, and carried in two or more stages, coaches, or vehicles, in anyone direction daily, then in such case the coaches or vehicles in which mails

Page 44 U. S. 722

shall actually be carried, shall pass free of toll; but on each passenger transported in any such additional stage, coach, or vehicle, there shall be charged and collected at each gate, three cents, in manner hereinafter provided."

"SEC. 5. That each and every driver of any stage, coach, or other vehicle, belonging to any such mail contractor or contractors, other than such as are entitled to carry passengers free of toll, shall, at each and every gate, report the number of seats occupied in such stage, coach, or other vehicle, to the keeper of such gate, whose duty it shall be to open an account against the proprietor or proprietors of such stage, coach, or other vehicle, and charge, in a book to be kept for that purpose, three cents for each passenger, as provided in the preceding section of this act, and said proprietor or proprietors shall pay over to such gate keeper, at the end of every three months after the taking effect of this act, the aggregate amount of tolls which shall have become due for passengers, and charged as above provided."

"SEC. 6. That should the driver of any stage, coach, or other vehicle, belonging to such mail contractor or contractors, other than such as are entitled to carry passengers free of toll, neglect or refuse to report to any gate keeper the number of seats occupied in said stage, coach, or vehicle, it shall be the duty of such gate keeper to charge the proprietor or proprietors of such stage, coach, or other vehicle, at the rate aforesaid, for each and every seat which might be occupied in the same, to be recovered in an action of debt, in the name of the State of Ohio, in any court having competent jurisdiction."

"SEC. 8. That the board of Public Works, or their authorized agent, may be allowed to collect tolls from any proprietor or proprietors of any line of stages, post coaches, or other vehicles for the conveyance of passengers, quarterly; and if any proprietor or proprietors of any such line of stages, post coaches, or other vehicles as aforesaid, shall neglect or refuse to pay quarterly, that from and after such neglect or refusal, the said proprietor or proprietors as aforesaid shall be required to pay at each and every gate as they pass, provided that the Board of Public Works or their authorized agent shall have made out and presented to any such proprietor or proprietors, or any one of them, the amount of the toll due from him or them for each and every gate."

The Act of the legislature of March 19, 1838, provides as follows:

"SEC. 24. That the said Board of Public Works shall have power to revise the rates of toll to be paid by persons passing on or using the national road in Ohio, and so to modify the same, from time to time, as to raise, and collect, in the most equal manner, the sum necessary to defray the expenses incident to the preservation and repair of 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 of such other agents as may be necessarily employed in

Page 44 U. S. 723

the repair and preservation of the same, according to the true intent and meaning of the Act passed February 4, 1831, entitled 'An act for the preservation and repair of the United States road.'"

The order of the Board of Public Works, above referred to, is as follows:

"By virtue of the powers vested in the Board of Public Works by the 24th section of the act 'in addition to an act for the preservation and repair of the United States road,' passed March 19, 1838, it is hereby"

"Ordered that instead of the rate of toll charged on each passenger by the 4th section of the act 'fixing the rates of tolls on the national road,' passed February 6, 1837, there shall be charged ten cents, at each gate, on each of such passengers."

In October, 1842, a suit was brought in the Court of Common Pleas in Franklin County against Neil, Moore & Co., for tolls on passengers conveyed in stages by the defendants, on the national road, and the following agreed statement of facts was filed:

"In this case, the following facts are agreed by the parties:"

"The partnership of the defendants, as alleged, is admitted. The plaintiff claims to recover for tolls on passengers carried upon the national road in Ohio in coaches belonging to the defendants, other than and besides one daily stage coach, carrying the mail of the United States, which said coach, with the horses, passengers, and everything else pertaining to it, was permitted to pass toll free. The order of the Board of Public Works, hereto annexed, was made in due form at the date thereof, and is to be admitted in evidence. The passengers upon whom toll is sought to be recovered, were carried by the defendants, as above mentioned, between the first days of April and October, A.D. 1842. The defendants were contractors for carrying the mail of the United States upon said road, and said passengers were all carried in coaches in which a part of said mail was carried at the same time, the mail being thus carried in more than one coach, pursuant to orders from the Postmaster General, one coach, containing a part of the mail and the passengers, and baggage, and everything on it, being, at the same time, permitted to pass toll free, as above stated. The mail was carried in one line of coaches, down to the time stated in the annexed statement of the Postmaster General, which, together with the accompanying orders of the department, are taken in evidence in this case. Both before and since the construction of the national road, it was the uniform practice, in Ohio, to carry passengers on the coaches carrying the mail, and since the construction of the national road, no claim was made for toll on such passengers, or coaches, or on anything pertaining to them, except as shown by the case of State of Ohio v. Neil and Moore, 7 Ohio 132. Until the mail was carried in two separate lines of coaches, as specified in the said statement of the Postmaster General, and in the manner and for the

Page 44 U. S. 724

purpose therein mentioned, the defendants were required to carry the mail in two separate lines of coaches, and did so carry it accordingly. It is admitted that the acts of the Legislature of Ohio, and the orders of the Board of Public Works, in existence when the tolls in question accrued, did not 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 of such other agents as may be necessarily employed in the preservation and repair of the same; but it is not intended by this admission to preclude the defendants from objecting to the validity or legality of said charge of toll upon passengers, upon any ground they may think proper to take in the argument. It is understood and agreed that this case shall not in anywise prejudice the rights of the plaintiff, nor of the defendants, in any other suit, upon any demand not included in the facts hereby agreed. For the mutual convenience of the parties, this case is narrowed down so as to present only the question arising upon the facts above stated. Any material fact left out in this agreement may be supplied, by proof, on the trial, by either party, after giving the other party reasonable notice of such intention. It is agreed by the parties that the whole number of passengers charged with toll at all the gates, between the first days of April and July, A.D. 1842, was ten thousand seven hundred and fifty-six, and that the whole number chargeable between the first day of July and October, A.D. 1842, was twelve thousand six hundred and seventeen, and that if the plaintiff be entitled to recover, judgment shall be entered for the sum of $1,075.58, with interest from the first day of July, 1842, and $1,261.67 1/2, with interest from the first day of October, A.D. 1842, and costs, or for such other sums as may be due, computing the tolls on said passengers at any other rate than that fixed by the Board of Public Works, if the court deem it competent to adopt any other rate, with interest on the gross sums due on the first days of July and October above mentioned, from those times respectively, and costs."

The court of common pleas were of opinion that judgment should be entered for the plaintiff, and the damages were assessed at $2,438.25.

The defendants carried the case to the Supreme Court of Ohio, where, in December, 1843, the judgment of the court below was affirmed, and the following certificate was annexed to the record.

"And it is hereby certified, that on the trial of this cause the defendants set up and claimed the right and authority to transport, in their two daily lines of mail coaches, which carried the United States mail, under a contract with the Postmaster General, and by the authority of the United States, passengers traveling therein, free of toll, along the United States road in the State of Ohio, and

Page 44 U. S. 725

through the toll gates erected by the said state thereon; that the said defendants set up and claimed this power and authority under and by virtue of the act of Congress approved the 2d day of March, A.D. 1831, entitled, 'An act declaring the assent of Congress to the act of the General assembly of the State of Ohio,' recited therein, and that in said case there were drawn in question the construction, effect, and validity, of said act of Congress, and the right and authority claimed by the said defendants under the United States, by virtue thereof, and that the decision was against the validity of said act to confer the right and authority so claimed."

The defendants sued out a writ of error, to bring this decision of the Supreme Court of Ohio before this Court. clubjuris

Page 44 U. S. 740