Lead Opinion
delivered die 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 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 state.?'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 off 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 Con-.' gress’: the states contributing nothing either to the máking of the road'of to the purchase of land over which it passes. They'did' nothing inore 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 ro.ad 'had thus been made — although it was constructed with the utmost’cáre, 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 merchandise; and that either a very great expénse must •be annually incurred in repairs, of 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 dissat-
' 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 con- ’ taining 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 aiiy 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 twp 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 iso 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 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, arid 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 riaake 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 6f the Ohio,- and other needfiil 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 rqad-become dilapidated, that even these large suriis were found inadequate to place it in a proper condition, ana by the act.of March 3d, 1835, the further sum of $346,188-^3-, was appropriated; but this law directed that no part ofi 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, im.1835, and thé 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 ihe history of the road, and of the legislation of Congress and the states
When the new arrangement first w-ent 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 parriage belonging to the United States dr 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 conveyancé.” • '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 opi-' nio.n upon -that subject; nor to inquire what were thé'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 w-Us 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 vtith. 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 m like manner with the United , States, when -the latter have the porver to enter into the contract. Neither do we see any just ground for questioning the power of Congress. The "Constitution gives'1 it the power to establish post-offices and posfroads; 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 fell into utter rain, and sought out, as it-must have done, some circuitous or tardy and difficulffroute, when by the, immediate payment
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 wp should hardly carry -out their true meaning and intention if w7e treated the contract as one between, individuals, bargaining wdth 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, arid 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 ha'd 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
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 re- ■ turn 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 opt 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 exemp- ' tion, 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 pontract, 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
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 á full knowledge of what had been done by the former, and that the stipulation .in favour 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 w.ould .justify the inference urged in the argument, where the words retained, by their fair construction,, convéy. 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
If we -are right in this view of the subject, the’ error consists in the mode by which the state endeavoured to attain its object. ’ Unquestionably the exemption of carriages béaring 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 fatter is as extensive in collecting toll as if the road had been made by herself,.except
It has been -strongly pressed in the argument, that the1 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, gréatly 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 violátion 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 eveiy 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 thenumber 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 clearly 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 fells. No such fact, however, appears or is suggested in the case before us, and the judgment of the Cits. cuit Court is .therefore affirmed.
Dissenting Opinion
I dissent from the opinion of the court. And as the case involves high principles .and, to some extent, the action and powers of a sovereign state, I will express' my opinion.
This was an amicable action to try whether the defendants, who are contractors for the transportation of the mail on the Cumberland road,- are liable, under the laws of Pennsylvania,- to pay- toll for stages in which the mail of the United Státes is conveyed.
This road was constructed by the federal government through the state of Pennsylvania, with its consent. Whether this power was thus constitutionally exercised, is an inquiry not necessarily involved in the decision of-this case. The road was made, and for some years it was occasionally repaired by appropriations from the Treasury of the United States. These appropriations were made with reluctance at -all' times, and sometimes were defeated. • This, as a permanent system of keeping the road in repair, was,-of necessity,abandoned; .and, with the assent of Pennsylvania, Congress passed a-bill to construct toll-gates: and impose ¿ tax.-on those who used the road. This bill was vetoed- by the President, on. the ground that Congress had no constitutio; ,al- powerto .pass it. The plan was then adopted to cede the road, on certain conditions, to the states' through which it had been established.
On -the 4th of April, 1831,' Pennsylvania passed “An act for the preservation of the Cumberland road.”
By'the 1st section it -was-.provided, that as sdon as the consent of the government of the United States shall have been obtained, certain commissioners, who were named, were tó be appointed, whose duties.in regard to the road'were specially defined. . The 2d section enacted, that to keep so much of the road in repair as lies in' the state of Pennsylvania, and pay the expense .of collection, &c.,. the commissioners should cause six toll-gates to be erected, and certain rates of toll were established. To this section there was a proviso, that no toll shall be received or collected for the passage of any wagon dr. 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 the union.”
By the 4th section the tolls were to be applied, after paying expenses of collection, &c., to the repairs of the road, the commissioners having. power to increase them, provided they shall not exceed-the rates of toll on the Harrisburg and Pittsburg road. The last section'provided that the toll" should not be altered below or above a' sum necessary to defray the expenses incident to the preservation and repair of said road, &c., and also, “that no change, alteration, or amendment shali-ever be adopted, that will in any wise defeat or affect the true intent and meaning of this act.”
By the 10th section of the above aet it was declared to have no effect lintil Congress should assent to the same, “ and •until'so much
By their act of the 24th.of June, 1834, Congress appropriated $300,000 to repair the Cumberland road east of the Ohio river, which'referred to the above act of Pennsylvania; and also to similar acts passed by Virginia and Maryland. And in the 4th section of the aet it was provided, “that as soon as the sum by this act appro-priáted, 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.” This surrender of the road was accepted .by Pennsylvania, by an act of. the. 1st of April, 1835.
■ The above acts constitute the compact between the state of Penm-sylvania and the union, in regard to the surrender of this road. The nature .and extent of this compact ¿re pow to be considered:
As before remarked; the constitutional power of Congress to -construct this road isr-not necessarily involved in 'this decision. By the act-of Congress of the-30th of April, -1802, to authorize the people-of ¡Ohio to'“form a constitution and state government,” among other propositions for- the acceptance of • thé state, it was proposed .that “ five-per-cent, of the net proceeds' of the-lands lying-withiu the said state, sold- by Congress, should be applied to the laying out and making public roads, leading from tire navigable waters falling into the. Atlantic, to the-.Ohio,.-to: the. said state,land through the samé; such roads to be laid under the authority of Congress, with the consent of the several states through which'the roads shall pass: provided the state shall agree not to tax land sold by the government until after the- expiration of five years from the time of such sale.”’ - -
By the'2d section of the act of thé 3d March, 1803, three .per. cent, of thembove- fund was placed' at the disposition of the state, tp be “ applied -to .the laying out, opening, and- making roads, within the state.” ' .
The above conditions, having been accepted by Ohio, constituted the compact under which .the Cumberland .road.was laid' out and.constructed by the authority of Congress. - And of this work it ttfay be. said, however great has been the expenditure through .the inexperience ór unfaithfulness cf public agents, that no public wrork has been so diffusive in its benefits to the • country. It opened a new avenue of commerce between the eastern and western states. Since its completion, and while it whs kept in repair, the annual transportation of goods and travel on it saved an expense equal to no inconsiderable part of the cost of the road. But its cession to the - states
Whatever expenditure was incurred in the construction of this road beyond the two per cent, reserved by the compact with Ohio, was amply repaid by the beneficial results of the work; and this was the main object of Congress. It was a munificent object, and worthy of the legislature of a great nation.
The road was surrendered to Pennsylvania and .the other states through which it had been constructed. But what was ceded' to Pennsylvania ? All the right of the United States which was not reserved by the compact of cession. This right may be supposed to arise from the compact' with Ohio; the consent of Pennsylvania to the construction of .the road, and the expense of its. construction, including the sums paid to individuals for the right of way. These, and whatever jurisdiction over the road, if any, might be exercised by the United States, were surrendered to Pennsylvania.- The road then .must be considered as much within the jurisdiction' and control of Pennsylvania, excepting the rights reserved in the compact, as if it had been constructed by the funds of that state. It is, therefore, important to ascertain die extent of the rights reserved by the United States.
■ In the closing paragraph of the 2d section of the act of 1831, above cited, it is provided, “ 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.” In addition to this, there were certain limitations imposed, as to the amount of tolls, on the state of Pennsylvania, which need not now be considered.
Some light may be cast on the import of the above reservation by a reference to somewhat similar compacts made in regard to the same subject between the .United States and the states of Ohio, Maryland, and Virginia. The Ohio act of the 2d of March, 1831, provides, in thé 4th section, “ 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 hoops, 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 tire United States, or of the militia of any of the states.” The 4tlr section of .the Maryland act of the 23d of January, 1832, provided, “ that no tells shall be received or col-lectéd for the passage of any wagon or carriage laden with the. property of the United States, on any cannon or military stores belonging to the United States, or to any of the stale's, composing this union.” In the Virginia -act of thé 7th of February, 1832, it is provided, “that no toll shall be received or collected for the passage, of any
The reservations in tire Pennsylvania and Maryland' acts are the same, and differ materially from those contained in-the acts of Ohio and Virginia. In the latter acts the mail-stage is excepted, but not in the former. - Pennsylvania and Maryland exempt from toll “ any .wagon or carriage ltulen with the property of the United States;” but the same exemption is contained in the Ohio and Virginia laws in addition to 'that of the-mail-stage. Now, can the reservations in these respective acts be construed to mean the same thing ? Is there no difference between the-acts of Ohio and Pennsylvania? Their language is different, and must not their meaning be ¿sought from the words in the respective acts ? They are separate and distinct compacts. The -Ohio law was first enacted, and was, probably, before the legislature of Pennsylvania when their .act was passed. But whether this be the fact -or not, they were both sanctioned, by Congress; and the-question-is, whether both compacts are substantially the same ? That .the legislature's did hot mean the same thing seems to me to be clear of all doubt.' Did Congress,' in acceding to these acts, consider that they were of the same import ? Such a presumption cannot.be sustained,Jwithout doing'violence to the language of the respective acts.
In both acts wagons laden with the property of the United States are exempted. In the Ohio act the mail-stage is exempted from toll, but not in the' act of Pennsylvania. Now, is the mail-stage exempted from toll by both acts- or by neither ? Is not either of these positions equally unsustainable ? The -exemption of the mail-stage must be struck out of.the Ohio-law to sustain on.e- of these positions, and to sustain the other it must be inserted in the' act of Pennsylvania. Does not the only difference consist in striking out in the one case and inserting in the other ? This must be admitted unless the words, “ wagon or carriage laden with the property of the United States,” mean one thing in the Ohio law, and quite a different thing 'in the law of Pennsylvania. These words have a sensible and obvious application in both acts, without including the mail-stage. In the Ohio law the words “ no toll shall be received or collected for the- passage of any stage or coach conveying the United-States mail,” cannot,-by any sound construction, be considered as surplusage; and yet they must be so considered if the Pennsylvania, act- exempt the mail-stage.
When one speaks of transporting the property of the United States, the meaning of the terms “ property of the United States,” is never mistaken. They mean munitions of war, provisions pur
The mail of the United States is. not the- property of the United States. What constitutes the mail ? Not the leathern bag, but its contents. A stage load of mail-bags coul'd not be called -the mail. They might be denominated the property of the United States, but not the -mail. The mail consists of packets of letters made up with post-bills, and directed to certain' post-offices for distribution or delivery ; and whether these be conveyed in a bag o.r out of it, they are equally the máil; but no bag without them is. or can be called the mail. Can these packets- be said to be the property of .the United States ? The" letters and their contents belong to individuals. No officer in the “government can abstract a letter, from the mail, not directed to him, without -incurring the penalty of. the law. And can these letters or mailed pamphlets or newspapers be called the property of the United States ? They in no sense, belong to the United States, and are never so denominated. If a letter be stolen ’ from the mail which contains a bank-note, the property in the note ,is laid in the person who wrote the letter in which the note is enclosed. From these views I am brought to the conclusion that, neither party to the compact under consideration could have understood “ a wagon or carriage laden with the property of the United States,” as including the mail-stage of the United States.
Are there any considerations connected with this subject which lead to a different conclusion from-that stated. The fact that four distinct compacts wrere entered into with four states to keep this road in repair, cannot have this effect. We must judge of the intention of the parties to the compact by their language. I know of no other rule of construction. Two of these compacts exempt the mail-stage from toll, and two of them do. not exempt it. Now, if the'same construction, in this-respect,must be.given to all of them,"
What effect can the expenditures of the United States, in -the construction of this road, have Upon this question? In my judgment,'none whatever. The reservation must be construed by its terms, and not by looking behind it. The federal government has been amply repaid for the expenditures in the construction of this road, great and wasteful as they may have been, by the resulting benefits to the nation.. It is now the road of Pennsylvania, subject only to the terms of the compact. In the act surrendering this road to the states respectively, through which it passes, Congress say, -ft and .the United States shall not thereafter be subject to any expense for repairing said road.” To. get clear of this expense was the object of the cession of it to the states. But does this affect the question under consideration. The repairs of the road are provided for, by the tolls which the state of Pennsylvania is authorized to impose. And this is the meaning of the above provision. It is supposed, that the exaction of toll’on the mail-stage' would conflict with that provision. -But how does it conflict with it? The toll on the mail-stage is not paid by the government, but by the contractor. And whether this toll will increase the price paid by the.government for the transportation of the mail, is a matter that cannot be detérmined. Competition is invited and.bids are made for this service, and the price to be'paid depends upon 'contingent circumstances. The toll would be paid, in' part, if not in whole, by a small increase of price for the transportation of passengers. The profits of the contractor might, perhaps, be somewhat lessened by the toll, or it might increase, somewhat, the cost of Conveying the mail. But this, is indirect and contingent; • so that in no sense can it be considered as repugnant to the above' provision. “ The United States are not to be subject to any expense for repairing this roadand they are not, in the sense of the law, should the Post-office Department have to pay, under the contingencies named, a part of the toll stated. Whether it does pay it or- not, under future contracts, Cannot be known ; and what-' ’ ever expense it may pay, will be for the use, and not the repain, of the road.
The act of the 13th of June, 1836, which is supposed to be in violation of the compact, I will now consider. That act provides, That all wagons, carriages, or. other modes of conveyance, pass-^ upon that part of the Cumberland road which passes through Pennsylvania, carrying goods, cannon, or military stores belonging the United States, or to any individual state of the union, which excepted from the payment of toll by tire second section of an passed the 4th of April, 1831, shall extend only so far as to relieve such wagons, carriage's, and other inodes of conveyance, the payment of - toll to the proportional amount of such goods
By the act of 1831,- “every chariot, coach, coachee, stage, wagon, phaeton, or chaise, with two horses and four wheels, were •to- be charged at each gate twelve cents; for either of the carriages last mentioned, with four horses, eighteen cents.” Is the act of 1836, which imposes half-toll on “the mail-stage, with passengers or goods,” repugnant to the above provision ? I think it is not, in any respect.
, If the mail be. not the property of the United States, then the stage in which it is conveyed is not within the exception of the act of 1831, and it is liable to pay toll. That only which is within the exception is exempted. That the mail is in no sense the property of the United States, and was not so understood by the parties to the compact, has already been shown. 'It follows, therefore, that a law of Pennsylvania, imposing on such stage a half or full rate of toll, is no violation of the compact.
' -But, if the mail-stage were placed on a footing with á wagon or carriage laden with the property of the United States, is the act of 1836, requiring it to pay toll, a violation of the compact ? I think it is not. A wagon or carriage laden with the property' of the United States, means a wagon or carriage having, as before remarked, a full or usual load. Such a vehicle is exempted from toll by the act of 1831. But suppose such wagon or carriage should have half its load, of the property of the United States,-and the other half of the property of individuals, for which the ordinary price for transportation was paid; is such a wagon, thus laden, exempted from toll? Surely-it is not. An exemption under such circumstances would be a fraud upon the compact. It should be required to pay half-toll; and this is what the law of Pennsylvania requires. The mail-stage by that law is only half-toll, when it conveys passengers with the mad.; There is, then, no legal objection to the exaction of this toll. It is in .every point of view just, and within the spirit of the compact.
In. the argument for the United States, the broad ground was assumed, that no state had the power to impose a toll on a stage used' for the transportation of the mail. That it is a means of the federal government to cany into effect its constitutional powers, and, consequently, is not a subject of state taxation. To sustain this position the cases of McCulloch v. The State of Maryland,
In the first case, this court held, “that a state government had no
Neither of these cases reach or affect, the principle involved in the case under consideration. The officer .'of the United States was considered as a means or ’instrument of the government, and, therefore, could not be taxed by the state, as an officer. . To make that case the same in principle as .the ohe before us, 'the officer must claim exemption from toll as a means of the government, in passing. over a toll-bridge or turnpike-road constructed by. a state, or by-an association of individuals, under a state law.. 'The principle of the other case is equally inapplicable»' Maryland taxed, the' franchise of the Bank, of the United States, and if the law' establishing- that bank were constitutional, the franchise ivas- no -more liable 'to taxation by a state than rights and privileges' conferred on one or more individuals, under any law of the union. With the same .propriety a judge of the United States might be subjected to a tais .by- a'state for the exercise of his judicial functions. And so of every other officer and public agent. But the court held that the stock ip the bant owned by a citizen might be taxed.
A toll exacted for the passage over a. bridge or on a.tumpike-roád is not, strictly speaking, a tax. - It is a. compensation for a benefit-conferred. Money has been expended in the’ construction of the road .or bridge, which adds greatly to- the comforts and facilities of travelling, and on this ground compensation is demanded. . Now, can the United States .claim the right to use such road or bridge free ■ from toll ? Can they place locomotives on the rail-roads of the states or of companies, and use them by virtue of their sovereignty ? Siich' acts, would appropriate private property for public purposes, without compensation; and this the Constitution of the union prohibits.
It is said, in the argument; that as well might U, revenue-cutter be taxed by a state ag to impose a toll on the stage which conveys thé mail. The revenue-cutter plies on the thoroughfare of natiolis or of
Pennsylvania stands pledged to keep the road in repair, by the use of the means stipulated in the compact. And she has bound herself, “ that, no change, alteration, or amendment shall ever be adopted that will in any wise defeat or affect the true intent and meaning of the aót of 1831.” In my judgment, that state has in no respect violated the compact by the act of 1836. If the mail-stage can be included in the exemption by the terms, “ wagon or carriage laden with the property of the United States,” still the half-toll on such stage, when it contains passengers, is within the compact. But, as has been shown, the mail-stage is not included in the exemption, and, consequently, it was liable to be charged with full toll. The state, therefore, instead of exceeding its powers under the compact, has not yet exercised them to the extent which the act of 1831 authorizes;
With the profoundest respect for the opinions of my brethren, I find myself constrained openly to differ from the decision'which, on behalf of the majority of the court, has just been pronounced. This case, although in form a contest between individuals, is in truth a question between the government of the United States and the government of Pennsylvania. It is, to a certain extent, a question of power between those two governments; and, indeed, so far as it is represented to be a question of compact, the very consideration on which the interests of the federal government are urged involves implications) affecting mediately or directly what are held to be great and fundamental principles in our state and federal systems. It brings necessarily into view the operation and effect of-the compact insisted upon as controlled and limited by the powers of both the contracting parties. In order to show more plainly the bearing of the principles above mentioned upon the case before us, they will here be more explicitly, though cursorily, referred to.
I hold, then, that neither Congress nor the federal government in the exercise of all or any of its powers or attributes, possesses the power to construct roads, nor any.other description of what have been called internal improvements, within the' limits of the states. That the territory and soil of the several states appertain to them by’ title-paramount to the Constitution,.-and-cannot be taken, save with the exceptions of those portions ther.eof-which might be ceded for the seat; of the federal government and for sites permitted to be purchased for forts, arsenals, dock-yards, &c., &e. That the power of
In accordance with the principles above stated, and which with me are fundamental, I am unable to perceive how the federal government could acquire any power over the Cumberland road by making appropriations, or by expending money to any amount for its construction or repair, though these appropriations and expenditures may have been made with the assentj and even with the solicitation of Pennsylvania. Neither the federal government separately,nor conjointly with the state of Pennsylvania, could have power .to repeal the Constitution. Arguments drawn from convenience or inconvenience can have no force with me in questions of constitutional power; indeed, they .cannot be admitted at all, for if once admitted, they sweep away every barrier erected by the Constitution against implied authority, and may cover every project which the human mind may conceive. It matters not, then, what or how great the advantage which the government of the United States may-have proposed to itself or to others in undertaking this road; such purposes or objects could legitimate no acts either expressly forbid--, den or not plainly authorized. If the mere, appropriation or disbursement of money can create rights in the government, they may-extend this principle indefinitely, and with the very worst tendencies — those tendencies would be the temptation to prodigality in the government and a dangerous influence with respect to others.
In my view, then, the federal government could erect no tollgates nor make any exaction of tolls upon this road; nor could that government, in consideration of what it had done or contributed,
The United States may contract with companies or with .communities for the transportation of their mi ils, or any of their property, as well as with carriers of a different description; and consequently could contract with the state of Pennsylvania. But Ifchat is meant to be insisted on here is, that the government could legally claim no power to collect tolls, no exemption from tolls, nor any diminution of tolls in their favour, purely in consequence of their having expended money on the road, and without the recognition by Pennsylvania of that expenditure, as a condition in any contract they might make with that state. Without such recognition, the federal government must occupy the same position 'with other travellers or carriers, and remain, subject to every regulation of her road laws .which the state could legally impose on others.
This brings us to an examination of the statutes of Pennsylvania, and to an inquiry into any stipulations which the state is said' to have made with the federal government, as' declared in those statutes. That examination will, however, be premised by some observations, which seem to be called for on this occasion. These acts of the Pennsylvania legislature have been compared with the acts of other legislative bodies relative to this ro.ád, and it has been supposed that the Pennsylvania laws should be interpreted in conjunction with those other state laws, and farther, that all these separate state enactments should be taken, together with the acts of Congress passed as to them respectively, as forming one, or as parts of one entire compact with the federal government. I cannot concur in such a view of this case. On the contrary, I must consider each of the states that have legislated in respect to this road, as competent to 'speak for herself; as speaking in reference-to her own interests and policy, and independently of-all others; and unshackled by the proceedings of any others. By this rule of construction let us examine the statutes of Pennsylvania. The act of April 4th, 1831, Which may be called the compact law as it contains all that Pennsylvania professed to undertake.
. Upon the' construction to be given to the ist and 2d sections of the statute of 1831, and to the 1st section of the statute of 1836, depends the decision of the case-before us. By thé' defendant in error it is insisted that, by the sections of the act of 1831 above “Cited, stages or stage-coaches, transporting the mail of the United States, are wholly exempted by compact from the payment of tolls, although the mails may constitute but a small portion of their lading; and
Farther illustration of the language and objects of the legislature of Pennsylvania may be derived from the circumstance, that, in the law of 1831, they couple the phrase “ property of the United States” with “ property of the states.” The same language is used in reference to both; they are both comprised-in the same sentence; the same exemption is extended to both. Now the states have no mails to be transported. It then can by no means follow, either by necessary or even plausible interpretation, that by “ property of the United States” was meant the “mails of the United States,” any more than by “ property of the states” was meant the “mails” of those states; on the contrary, it seems far more reasonable that the legislature designed to make no distinction with regard to either, but intended that the term “property” should have the same signification in reference both to the state and federal governments.
In theacceptation of the term “property,” insisted on for the defendants in-error, the mails committed to the contractor are the property of that contractor also. Yet it would. hardly have been contended that in a provision for exempting the “ property” of a mail contractor from tolls, either a vehicle belonging to the United States, and in the use of such a contractor, or the mail which he carried in it, would be so considered as his property as to bring them within that exemption ; yet such is the conclusion to which the interpretation contended
If the interpretation here given of the act of 1831 be correct, then admitting that act to be a compact between Pennsylvania and the United State's, the former has,- by the 1st section of the act of 1836, infracted no stipulation in that compact. Pennsylvania never did, according to my understanding of her law of 1831, agree to the exemption from, tolls for stages,"wagons, or vehicles of any kind, intended for carrying the mails of the United States. These stood upon the like footing with other carriages. If this be true, then by the act of 1836, in which she has- subjected to half-tolls only, stages, wagons, &c., carrying the mails, and at the same time transporting passengers or goods, so far from violating her compact,- or inflicting a wrong upon the government or upon mail contractors, that state has extended to. them a-privilege and an advantage which, under the 3d proviso of tire act of 1831, they did not possess. My opinion is, that 'the plaintiff in the court below had an undoubted right 'of recovery.