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Searight v. Stokes. 3 H.

tion by the State that they were not to be taxed as stockholders, on account of their stock, as was the case in the 11th section of the act of 1821. The franchise is their corporate property, which, like any other property, would be taxable, if a price had not been paid for it, which the legislature accepted, as the consideration for allowing them to use the franchise during the continuance of their charters. The capital stock is another property - corporately associated, for the purpose of banking - but in its parts is the individual property of the stockholders in the proportions they may own them. Being their individual property, they may be taxed for it, as they may for any other property they may own. This is not only the case in Maryland. A franchise for banking is in every State of the Union recognized as property. The banking capital attached to the franchise is another property, owned in its parts by persons, corporate or natural, for which they are liable to be taxed, as they are for all other property, for the support of government.

We are of opinion that the stockholders in the old banks are exempt from the tax imposed by the act of 1841, c. 23, during the continuance of their charters under the act of 1821, but that the stockholders in the old and new banks are liable to be taxed by the act of 1811, or that they can claim no exemption under the act of 1834, by which their charters were further extended.

The judgment of the court of appeals is therefore reversed, and the cause will be remanded, with directions to enter up a judgment for the plaintiff in error.

6 H. 301.

3h 151 3h 742 3h 743 3h 745 3h 746 12h 296

WILLIAM SEARIGHT, Commissioner and Superintendent of the Cum

berland Road, within the State of Pennsylvania, Plaintiff in Error, v. William B. Stokes and Lucias W. Stockton, who have survived RICHARD C. STOCKTON, Defendants in Error.

3 H. 151. The act of the legislature of Pennsylvania, passed in 1836, imposing a toll upon carriages

carrying the mail of the United States over that part of the Cumberland road within that State, is in conflict with the compact between that State and the United States arising from the act of congress of March 3, 1835, (4 Stats. at Large, 772,) under which the State took possession of the road.

Error to the circuit court of the United States for the eastern district of Pennsylvania. The case is stated in the opinion of the court.

Beach and Walker, for the plaintiffs.
Coxe and Nelson, (attorney-general,) contrà.

Searight v. Stokes. 3 H.

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Taney, C. J., delivered the opinion of the court. [ * 162 ] 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 [ *163 ] 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 ami. cable 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 still found to be incapable of withstanding the wear and tear produced by the number of carriages continually passing over it, en

- it was Searight v. Stokes. 3 H.

gaged in transporting passengers, or heavily laden with agricultural produce or merchandise; 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 demạnds upon the public treasury unavoidably increased, as the road was extended or

longer in use, they naturally produced a strong feeling of [ * 164 ] * 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

1 4 Stats. at Large, 483.

Searight v. Stokes. 3 H.

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 be- [ * 165 ] longing 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 tollhouses 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 2, 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 24, 1834,3 the further sum of $300,000 was appropriated; and

2 Ib. 655.

3 Ib. 680.

14 Stats. at Large, 553. VOL. XV.

30

Searight v. Stokes. 3 H.

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 3, 1835, the further sum of $316,188.58, 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 con[*166 ) gress and the States upon that subject, (so far as it is nec

essary 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 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 opin

power

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