7 Or. 259 | Or. | 1879
By the Court,
The complaint alleges in substance that the appellant is a corporation organized under the laws of Oregon for the purpose of constructing and maintaining a wagon road from Dalles city in Wasco county, by the way of Canyon city and other points mentioned, to Fort Boise, Idaho territory, and collecting tolls thereon; that'prior to the incorporation of appellant congress passed the act granting land to the state of Oregon to aid in constructing a military wagon road be
The answer admits the incorporation to build the road and collect tolls, but denies that it undertook to maintain the road; admits the acceptance of the grant, with its conditions and obligations, and alleges that appellant did construct the road with such widths, gradations and bridges as to permit its regular use in transporting the troops, mails, etc., of the United States, under the provisions of said act of congress, and that long before respondent became mail carrier the road was examined and accepted by George L. Woods, then governor of Oregon, as constructed in accordance with the requirements of said acts; that the acceptance of the road by said Woods, as governor, was approved by the secretary of the interior before the time when respondent claims to have become mail carrier; denies any knowledge as to whether Gorman was mail contractor’, as alleged; denies that respondent was a duly or otherwise authorized mail carrier at the time of the alleged damages; admits the road was a mail route, but denies that respondent, as such carrier, carried the mails over the route; denies knowledge as to whether, in carrying the mails over the route, it was necessary to use wagons or other vehicles, or whether the mails were carried at respondent’s expense;
For further answer it is alleged that prior to the first day of January, 1876, the appellant abandoned its right to the road and its right to collect tolls thereon.
It is further alleged that the respondent has no legal capacity to sue, in this, that he has no contract with Gorman ; and that originally the contract for carrying the mails and the route in controversy was a part of a contract with one De Lacy, who failed to perform the contract on his part, and it was afterwards let to Gorman; that while De Lacy was contractor he let this route to Ad. Edgar, who thereafter employed J. H. Marshbanks and John Davis to carry the mails, and these latter sold out to respondent,
That whatever interest respondent may have had in carrying the mails over the route in question, was a certain proportion of the contract price therefor, and was in violation of the laws and regulations of the United States on that subject, and was void.
The reply denies the averment of compliance by appellant with the law, in the construction of the road; denies knowledge as to whether the governor of Oregon accepted it; and the same as to approval by the secretary of the interior; denies that respondents’ damage resulted from carrying passengers and freight; denies the abandonment of the road by appellant, the averments concerning his legal capacity to sue, and the averment of facts supposed to render his interest as mail carrier illegal and void.
The first assignment of error is that the court erred in
This assignment of error seems to be based on the following part of the bill of exceptions: “The plaintiff offered himself as a witness in his own behalf, and testified that he was mail carrier on that part of mail route 44,140, between Dalles and Canyon city, and was such at the time the alleged damages accrued, carrying the United States mails by himself and his employees, in stage coaches and on buck-boards drawn by horses; that one J. M. Gorman was the contractor with the United States government for the carrying the said mails, and that he, plaintiff, was carrying said mails under said Gorman’s contract, and received pay therefor from said Gorman. To the introduction of this evidence defendant’s counsel objected, and the objection was overruled, to which ruling of the court the defendant’s counsel excepted.”
It is claimed by appellant that this evidence was improperly admitted, for the reason that the laws of the United States forbids the sub-letting of mail contracts, and that it was improper to allow evidence to show that respondent was carrying the mail under Gorman, who was the contractor. (U. S. Postal Laws 1873, p. 57, sec. 271.) It appears from this statement that respondent was employed to carry the mail, and that he received his pay for so doing from Gorman. "We think the law of congress referred to does not prohibit a contractor from employing persons to assist him in carrying the mails. Such a construction would render the transportation of the mails difficult, if not impracticable.
The second error assigned is that the court erred in instructing the jury that: “ Under the acts of the legislature and under the act of congress, the defendant was and is obliged to keep the road in such condition as that the mails, among other things, may be safely, securely, and expeditiously transported over it.”
An act of congress, approved February 25,1867, granted to the state of Oregon certain lands to aid in the construction of a military wagon road from Dalles city on the Columbia river by way of Camp Watson, Canyon City and Mormon
The state of Oregon, by an act approved October 20, 1868, granted these lands to the appellant for the purpose of aiding said company (the appellant) in constructing the road mentioned and described in said act of congress upon the conditions and limitations therein prescribed. When the appellant accepted the grant it undertook to construct and maintain said road in such condition as to enable the mails to be transferred over it with safety and convenience to the mail carrier.
The act of the state legislature did not particularly prescribe the manner of constructing the road, but we think that the appellant, when it was organized as a corporation to construct a road in Oregon, undertook to construct it in the manner then prescribed by the laws of the state for the construction of such roads. While the road remained under the control of appellant it was obliged to maintain the same, and we think this instruction was not erroneous.
The third ground of error assigned is to the following instruction: “It was the duty of the road company to construct the road sixteen feet in width generally, and where there was necessity for cuts of six feet deep or more, the road need not be more than ten feet wide, with turnouts sixteen feet wide every quarter of a mile of such cut. This rule is not to be construed rigidly. A variation of a few feet will not be regarded as a material departure from the
The fourth error assigned is to the following instruction: “It was the duty of the road company to construct bridges over such streams along the road as are not fordable, but Avhen such streams are conveniently fordable at all seasons of the year the road company was not obliged to build bridges. Before plaintiff can recover he must show that he Avas engaged in transporting the United States mails; and upon this point it is sufficient if the testimony shows that the mails were delivered to him or his employees and by him or them transported over the route.” The first part of this instruction is correct, being in accordance with the statute of Oregon prescribing the manner in which such roads shall be constructed. (Statute, p. 531, sec. 30.) The last part of the instruction is correct, for if the respondent Avas recognized by the United States officers and the mails delivered to him, and by him transported, Ave think he would be a sufficiently accredited mail carrier to be entitled to pass over said road free of tolls.
The fifth error alleged is to the following instruction: “ On the subject of tolls I charge you that under the law a mail carrier or one employed in transporting the mails, has a right to pass along the Dalles military road and over the bridges over the streams on said road without paying tolls therefor. If the Dalles military road company has failed to build bridges at necessary points, and the plaintiff had to cross the streams over bridges owned by others and paid tolls therefor, he may recover the same; but.the amount of toll which he can recover is such as would have been charged
The sixth ground of error is alleged to be the refusal of the court to give this instruction: “That a contract with the government to carry the mails, either directly or through others, is not the government of the United States carrying the mails; and that the government of the United States was only and is entitled, when carrying by itself said mails, to have free transportation for its mails as by the contract under which the defendant as alleged took its grant.” This instruction is not skillfully worded and is scarcely intelligible, but we suppose the appellant’s counsel desired the court to say to the jury that the United States in order to have a right to pass its mails over this road free of toll must carry the mail itself and not by its mail contractors. We think this is not correct. The government being a corporation can not do any act except through agents, and all persons are its agents who are employed to perform its functions. Among these are those who are employed by the government to carry the mails. Where one person contracts with the government to carry the mails over long routes such contractors have authority to employ others under them to assist them, for where any person is employed to do a certain thing he has implied authority to employ the means necessary to accomplish it. Any other conclusion would defeat the accomplishment of the purpose of the government in letting the contract to carry the mails, and we think
These considerations dispose of the questions raised in the case, and as we find no substantial error in the proceeding of the circuit court its judgment will be affirmed.
