Neil v. State of Ohio. 3 H. All the remedies against the marshal, necessary to compel him to pay over the money he has made, survive his term of service, and remain in full force against him until the execution shall be comThe judgment of the circuit court must, therefore, be pleted. reversed. 720, 521 296 NEIL, MOORE, AND COMPANY, Plaintiffs in Error, v. THE STATE OF 3 H. 720. The act of the legislature of Ohio, imposing a toll upon passengers in mail stage-coaches, over the Cumberland road, to the exclusion of all other passengers, does in effect exact a toll of mail coaches, and thus imposes upon the United States a part of the burden of supporting the Cumberland road, contrary to the compact between the State and the United States under which the State took the road. ERROR to the supreme court of the State of Ohio, in an action against the plaintiffs in error to recover tolls. The judgment of that court was for the plaintiffs, consequently denying the validity of the exemption set up by the defendants, who are plaintiffs in error, under the compact and act of congress mentioned in the opinion of the court. Ewing, for the plaintiff. Swayne, contrà. * [*740] TANEY, C. J., delivered the opinion of the court. This case has arisen out of two acts of assembly, passed by the legislature of Ohio, one in 1837, and the other in 1838, and an order of the board of public works of that State, whereby a toll has been imposed upon passengers travelling in the mail stage on the Cumberland road. We have already, at the present term, fully expressed the opinion of this court, in relation to the compacts between the United States and the States of Ohio, Pennsylvania, Maryland, and Virginia, concerning this road, and the rules by which they ought to be interpreted. It is only necessary, therefore, on this occasion, to apply the principles there stated to the case before us. The material parts of the laws in question are the 4th section of the act of 1837, and the 24th section of the act of 1838. The first imposes a toll of three cents on every passenger in the mail stage, at each toll-gate; and the second authorizes the board of public works to revise and modify the rates of toll to be paid by persons using the road; and in pursuance of this authority, the board passed an order Neil v. State of Ohio. 3 H. raising the toll on each passenger in the mail stage to ten cents. But no toll is charged, either by the law or the order of the board, upon persons travelling in any other carriage. The 4th section of the act of 1831, whereby the State of Ohio proposed, with the assent of congress, to take charge of the road and keep it in repair, contains a specific enumeration of the tolls she intended to charge upon carriages of every description, and other property; and after making this enumeration, the section concludes with the following proviso: "That no toll should 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 [*741 ] militia of any of the States." We shall hereafter speak of the 15th section of this act, which has been supposed to justify the toll in question. But, subject to the modifications, if any, authorized by that section, the entire contract in relation to the tolls, offered by the State and accepted by congress, is to be found in the 4th; the residue of the act containing nothing more than detailed regulations for the collection and application of the tolls. At the time this compact was made, it was well known that the mail was always transported by contractors, and that whenever it was conveyed in carriages, the vehicles belonged to them, and were their own private property, and not the property of the United States. It was equally well known that upon this road, as well as many others, the postmaster-general, in his contracts, uniformly required that the mail should be carried in a stage or coach capable of accommodating a certain number of passengers, the presence of the passengers being regarded as adding to the safety of the mail, and superseding the necessity of any other guard. This mode of transporting the mail must have been perfectly known to the State in 1831, when the agreement was made; and in providing for the exemption of carriages conveying the United States mail, both parties must have intended to exempt the vehicles usually employed in that service; and that carriages belonging to the contractors, although carrying passengers, were to pay no toll, while all other vehicles were to be charged at the rate specified in the law. The reason of this exemption is evident; for a toll charged upon the carriages of the contractor would, in effect, be a charge upon the postoffice department, since the contractor would be obliged to make pro Neil v. State of Ohio. 3 H. vision for this expense when bidding for the contract, and regulate his bill so as to cover it. In the proposition made by Ohio, nothing was said of a toll on the passengers in a carriage of any kind, but the charge is made upon the carriage itself, according to its description, and the number of horses, without any regard to the number of persons that may be travelling in it; and it is evident that it was at that time supposed that the rates specified and agreed of would prove sufficient to keep the road in repair, and that the United States would always thereafter have the free use of it, for mail-carriages of the usual kind, without any burden upon them, direct or indirect. If the expectations of the parties had been realized, and the tolls mentioned in the law had produced revenue enough to preserve the road, no one, we think, would have supposed that tolls could be collected from passengers in the mail stage, or that the specified charges upon the carriages could have been reduced, and the deficiency supplied by a toll upon persons travelling in the carriages which conveyed the mail. [ * 742 ] *In the case of Searight v. Stokes et al. 3 How. 151, we have already said that, with an agreement like this before us between the United States and a State, we must look at the relation in which the parties stood to one another, as well as to the subject-matter of the contract, and the object which the high contracting parties intended to attain; and we must expound it upon principles of justice, so as to accomplish the purposes for which it was made, and not defeat their inanifest intention, by a narrow and literal interpretation of its words. And regarding it in this point of view, we think it very clear that no part of the burden of supporting this road was intended to be levied upon the United States, but was to be obtained altogether from other sources; and that the relative position and privileges of the mail-coaches in regard to tolls, as prescribed in the law, were to be always afterwards maintained, unless a deficiency or superabundance of revenue should render it necessary to increase or diminish the rates fixed in the law. For if this were not the case, the whole detailed and particular provision in relation to the things to be charged, and the rates to be imposed, as set forth in the law of Ohio, and so cautiously recited in the act of congress1 consenting to the surrender of the road, would be nugatory and without an object. On the other hand, this mode of proceeding was the natural and proper one, where two sovereignties were contracting with each other by means of legislative action; and it was obviously 1 4 Stats. at Large, 483. Neil v. State of Ohio. 3 H. adopted by the parties in this instance in order to show the terms proffered by Ohio, and assented to by congress, and forms the conditions of the compact between them, so far as their respective rights were concerned. We proceed to apply these principles to the question before us. The law of the State, and the order of its board of public works, impose a toll upon every one travelling in the mail stage, while the passengers in every other vehicle are allowed to go free. If this can be done, it is manifest that the United States will derive no benefit from the compact, and so far from enjoying the privilege for which they stipulated, and for which they paid so heavily in the construction of the road, a large portion of the burden of repairs will be thrown upon them. This is strikingly illustrated by comparing the toll charged upon coaches similar to those employed in conveying the mails, with the toll indirectly levied upon the mail stage, by a charge upon its passengers. According to the rates contained in the law of which we are speaking, a four-wheel carriage, drawn by four horses, pays at each gate thirty-one and a quarter cents, and if it is not conveying the mail, it pays nothing on its passengers. This sum is, therefore, the whole amount of the toll to which it is liable. Now the mails on this road have, we understand, been always transported in coaches of the above description; and although under the order of the board of public works no toll is charged directly upon the carriage, yet every passenger must pay ten cents at each *gate, so that the carriage of a mail-contractor, containing [* 743 ] six passengers, pays nearly double as much as a like carriage owned by any one else with the same number. And what still more strongly marks the disadvantages to which the United States are subjected by this order of the board, these passengers may be persons in the service of the United States, passing along the road in the execution of some public duty, for the order makes no exceptions in their favor. And although this toll, in form, is laid upon the passengers and not upon the vehicle, the result is the same; for in either case it is, in effect, a charge upon the proprietor of the carriage, diminishing his profits in that portion of his business; and when thus levelled exclusively at passengers in the mail stage, it accomplishes indirectly what evidently cannot be done directly by a toll upon the carriage, and in its consequences must seriously affect the interests of the United States. For in bidding for a contract upon a road so much travelled as this, the bidder would undoubtedly be greatly influenced by the advantages which a contract would give him in the conveyance of passengers, as his carriages, when carrying the mail, are entitled to go free. But if they, and they alone, are to be sub Neil v. State of Ohio. 3 H. jected to this burdensome and unequal toll, it is obvious that he must seek to reimburse himself, by enlarging his demand upon the government. Indeed, if this system of levying toll can be sustained, the mischief may not stop here; and it will be in the power of any one of the States through which the road passes so to graduate the tolls as to drive all passengers from the mail stages into other lines, and by that means compel the United States, contrary to their wishes, and contrary to the public interest, to transport the mails in vehicles in which no passenger would travel. Nevertheless, we do not mean to deny the right of the State to impose a toll upon passengers in the mail stages, provided the power is exercised in a manner and upon principles consistent with the spirit and meaning of the agreement by which the road was transferred to the care of the States. On the contrary, in the case of Searight v. Stokes et al., we have already said that such a toll may be lawfully collected. But as no toll on passengers had been proposed by the law of Pennsylvania, the opinion, on that occasion, is expressed in general terms, as to the right; the case then under consideration not calling upon the court to speak more particularly upon the subject. The Ohio law, however, brings the question directly before us, and makes it necessary to state more fully and precisely the opinion of the court. The true meaning of the compact we understand to be this. The carriages carrying the mail, with their passengers, travelling in the known and customary manner, were to pass toll free, as well as other vehicles laden with the property of the United States and the persons employed in their service, as mentioned in the proviso hereinbefore recited; and the road was to be kept in repair by the [* 744 ] *revenue derived from the tolls specified in the Ohio law, according to the rates there set forth, provided they should prove to be sufficient for the purpose. No toll was at that time proposed upon passengers in any vehicle, and passengers in the mail stage, therefore, had no peculiar privilege in going free, and merely passed along the road upon the same terms with those who were travelling in other carriages. And as the compact contains no stipulation for the exemption of travellers in the mail stages, the general government can demand no advantages in their behalf, which are not extended to passengers in other vehicles. But they have a right to insist that the equality upon this subject, which the law of Ohio originally proposed, shall still be maintained; that the privilege and advantages intended to be secured to the carriages conveying the mail, over those granted to other vehicles, shall be preserved in substance and reality as well as in form; and that the passengers in the |