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Searight v. Stokes. 3 H.

ion upon that subject; nor to inquire what were the 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 was 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 with 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 in like manner with the United States, when the latter have the power to enter into the contract. Neither do we see any just ground for questioning the power of congress. The constitution gives it the power to establish post-offices and post-roads; 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 fall into utter ruin, and sought out, as it must have done, some circuitous or tardy and difficult route, when, by the immediate payment * of an equivalent, it obtained in perpetuity the means of [ *167 ) performing efficiently a great public duty, which the constitution has imposed upon the general government. Large as the sum was which it paid for repairs, it was evidently a wise economy to make the expenditure. It secured this convenient and important road for its mails, where the cost of transporting them is comparatively moderate, instead of being compelled to incur a far heavier annual expense, as they must have done, if, by the destruction of this road, they had been forced upon routes more circuitous or difficult, when much higher charges must have been demanded by the contractors. Certainly, neither Ohio, nor Pennsylvania, nor Maryland, nor Virginia, appear from their laws to have doubted their own power or the power of congress. But we do not understand, that Pennsyl. vania now upon any ground disputes the validity of the compact or denies her obligation to perform it; on the contrary, she asserts her readiness to fulfil it in all its parts, according to its true meaning; but denies the construction placed upon it by the United States. It is to that part of the case, therefore, that it becomes the duty of the court to turn its particular attention.

It is true, that in the law of Pennsylvania, and of Maryland also,

Searight v. Stokes. 3 H.

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 we should hardly carry out their true meaning and intention if we treated the contract as one between individuals, bargaining with 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, and 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 had 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 impor[ * 168 ] tant than * any other post-road in the Union. Occasionally,

indeed, arms or military stores may be transported over it; and sometimes a portion of the military force may pass along it. But these occasions for its use, especially in time of peace, but rarely occur; the daily and necessary use of the road by the United States is as a post-road, forming an almost indispensable link in the chain of communication from the seat of government to its western borders.

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 return for the large expenditure she required to be made, before she would receive the road, she confined her exemption to matters of no

Searight v. Stokes. 3 H.

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 3, 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 out 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 exemption, 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 contract, 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 * a different construction. The United States have [ 169 ] unquestionably a property in the mails. They are not mere common carriers, but a government, performing a high official duty in holding and guarding its own property as well as that of its citizens committed to its care; for a very large portion of the letters and packages conveyed on this road, especially during the session of congress, consists of communications to or from the officers of the executive department, or members of the legislature, on public service, or in relation to matters of public concern. Nor can the word laden be construed to mean fully laden, for that would in effect de

Searight v. Stokes. 3 H.

stroy the whole value of the exemption, and compel the United States to pay a toll even on its military stores and other property, unless every wagon or carriage employed in transporting it was as heavily laden as it could conveniently bear. We think that a carriage, whenever it is carrying the mail, is laden with the property of the United States within the true meaning of the compact; and that the act of congress of which we have spoken, and to which the State assented, must be taken in connection with the state law of 1831 in expounding this agreement. Consequently, the half toll imposed by the act of 1836 cannot be recovered.

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 a full knowledge of what had been done by the former, and that the stipulation in favor 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 would justify the inference urged in the argument, where the words retained, by their fair construction, convey 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 govern[ * 170 ) ment * when carrying out through her territory the im

portant and necessary operations of the post-office department. Nor could she have supposed that congress would give privileges to one State which were denied to others; and, after having done equal justice to all in the repair and preparation of the road wherever needed, make different contracts with the different States;

Searight v. Stokes. 3 H.

and, while it bargained for the exemption of its mails in one or more of them, consent to pay toll in another. The fact that they are clearly and explicitly exempted from toll in Ohio and Virginia, is a strong argument to show that it was intended to exempt them in all, and that the compacts with Pennsylvania and Maryland were understood and believed to mean the same thing, and to accomplish the same objects. And this conclusion is greatly strengthened by the fact that Maryland, where the words of the law are precisely the same with those of Pennsylvania, has never claimed the right to exact toll from carriages carrying the mail; nor did Pennsylvania claim it in the first instance, and they were always allowed to pass free until the act of 1836. Indeed, that law itself appears to recognize the right of the mail and other property of the United States to go free, and the imposition of only half toll would seem to imply that the State intended to reach other objects, and did not desire to lay the burden upon any thing that properly belonged to the United States. And so far as we can judge from its legislation, Pennsylvania has never to this day placed any other construction upon its compact than the one we have given, and has never desired to depart from it.

If we are right in this view of the subject, the error consists in the mode by which the State endeavored to attain its object. Unquestionably the exemption of carriages bearing 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 latter is as extensive in collecting toll as if the road had been made by herself, except * in so far as she is restricted by her compact; and [ * 171 ] that compact does nothing more than exempt the carriages laden with the property of the United States, and the persons and

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