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Neil v. State of Ohio. 3 H.

mail stages shall not be selected and set apart, as the especial objects upon which burdens are to be laid, and to which travellers in other carriages are not to be subjected.

If, therefore, the revenue from the road, according to the rates originally agreed on, was found to be inadequate, then the State had undoubtedly a right to increase the rate on any thing before subject to toll; or might, if it was deemed more advisable, leave the tolls as they stood, and charge in addition to them a toll on passengers. And if, instead of selecting the persons travelling in the mail coaches, and laying the burden exclusively upon them, all passengers in vehicles of any kind had been equally charged, the real and substantial advantages and privileges to which the United States are entitled under the agreement would have been preserved, and the equality in relation to passengers originally existing between the mail coaches and other carriages would not have been disturbed. And it is in this manner only, in our judgment, and as a toll in addition to that specifically stated in the contract, and imposed equally upon passengers in every description of vehicle, that persons travelling in the mail stages can be lawfully charged, without first obtaining the assent of congress.

The 15th section of the law of 1831 has been relied on in the argument, as reserving to the State the right to make any alteration it might afterwards think proper without regard to the interest of the general government. It is true that this section begins with a declaration that it shall be lawful for the general assembly, at any future session, without the assent of congress, to change, alter, or amend the act. But this clause evidently relates to the various provisions made in the law for the collection and disbursement of the money arising from the tolls proposed to be charged. The United States could have no interest in these details, and they were, therefore, properly retained in the hands of the State. And so in regard to the privilege of passing free on certain occasions, given by the * law, it is undoubtedly in the power of the State, if it [ * 745 ) thinks proper, to revoke it, since the exemption was a mere voluntary act, founded on no valuable consideration, but growing out of what was then supposed to be a just and liberal policy, which the State could afford to exercise; but which it had the right to change whenever it was deemed necessary to do so. But a full and valuable consideration had been paid by the United States for the privileges reserved to them, and they were a part of the contract which transferred the road to the care of the State. And this being the case, the section in question cannot by any sound rule of construction be regarded as inconsistent with the contract contained in another part

Neil v. State of Ohio. 3 H.

of the same law, and as placing the rights secured to one party entirely at the discretion and the control of the other. The reservations of power to the State, evidently relate to subjects in which the general government had no separate interest; and they would have been altogether unnecessary and useless if the State had not considered the preceding part of the law as the proffer of a compact which was to be obligatory upon it, if assented to by congress.

There is a clause in the law of 1837, which would appear to distinguish between the mail stages, in relation to toll, where more than one mail passed along the road on the same day. Upon this point it may be proper to say, that, in the opinion of the court, it rests altogether in the discretion of the postmaster-general, where the power has been conferred on him by congress, to determine at what hours the mail shall leave particular places and arrive at others; and to determine whether it shall leave the same place only once a day or more frequently. Upon this point his decision is absolute, when the discretion is committed to him by the laws of the United States, and cannot be controlled by a State or by the courts. And in the case of Searight v. Stokes and others, 3 How. 151, when the court speak of abuses by the contractors in the number of carriages employed, and of the right of the court to enforce the compact, it will be seen by a reference to the opinion, that it is confined to cases where the mail-bags, directed to leave the post-office at the same time, are unnecessarily divided among a number of carriages in order to evade the payment of toll; and the opinion expressed on that occasion by the court does not apply to stages leaving the postoffice with mails at different hours, in obedience to the orders of the department. In the latter case it is immaterial whether the mails are light or heavy. The postmaster-general is, upon this subject, the proper and only judge of what the public interest and convenience requires, and his decision cannot be questioned by the courts.

The provision upon this subject, however, appears to have been intended to guard against abuses by contractors, rather than to interfere with the powers of the postmaster-general. And in regard to the toll imposed, as hereinbefore mentioned, if it is necessary for the

support of the road, it is in the power of the parties to the [ * 746 ] compact * to modify it at their pleasure, and to give the

State the power it has exercised. But according to the terms of the contract, as it was originally made, and still stands, the toll upon passengers in the mail stages, laid in the manner hereinbefore stated, cannot lawfully be demanded, and the judgment of the state court must therefore be reversed.

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Neil v. State of Ohio. 3 H.

DANIEL, J. From the decision just pronounced on behalf of the majority of the court, I am constrained to dissent. Upon the principles involved in the decision, so far as they have been assumed as the foundation of rights in the federal government, or in the postmastergeneral as its agent or representative, independently of any agreement with the State of Ohio, my opinion has already been declared. That opinion was expressed on a similar point arising in the case of Searight v. Stokes et al., during the present term ; it is unnecessary, therefore, on this occasion, to repeat it. With respect to the compact which is said to have been made between the federal government and the State of Ohio, by the act of congress relinquishing the control of the Cumberland road to the State, and by the act of the Ohio legislature, assuming the control and management of that road, it has not to my mind been shown that this compact has in any respect been violated by the State. A cursory view of the legislation, both by the State and by congress, will establish the very converse of any such inference. That the several proceedings on the part of the State steer entirely clear of collision with the letter of that compact, has not, so far as I have heard, been even disputed. The statute of Ohio, passed on the 4th of February, 1831, after several provisions — 1, Investing the governor of the State with power to take under his care that portion of the Cumberland road comprised within the limits of the State ; 2, Prescribing the rates of toll to be collected; 3, Laying down regulations for the police of the road; contains in the second proviso of the 4th section the following enactment: “ Provided, also, that no toll shall be received or collected for the passage of any stage or coach carrying 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 of the Union; or any person or persons on duty in the military service of the United States, &c., &c.” The 15th section of the same law is in the following words: “ That it shall be lawful for the general assembly at any future session thereof, without the assent of congress, to change, alter, or amend this act; provided that the same shall not be so changed, altered, or amended, as to reduce or increase the rates of toll hereby established, below or above a sum necessary to defray the expenses incident to the preservation and repair of the said road, to the erection of gates and toll-houses * thereon, and for the payment of the fees or [ * 747 ] salaries of the superintendent, the collectors of tolls, and such other agents as may be necessarily employed in the preservation and repair of the same, according to the true intent and mean

Neil v. State of Ohio. 3 H.

ing of the act.” The act of congress of the 2d of March, 1831, 4 Story, L. U. S. p. 2250, is nothing more than a literal recital of the law of Ohio, and an entire and unqualified assent to, and adoption of that law. These statutes comprise all that has been ever done by the State and federal governments, which amounts to any thing in the nature of an agreement or compact between them in reference to the Cumberland road. Let us now inquire what it is that, by reasonable and proper construction, these laws import? And it should, in their examination, ever be borne in mind, that whatsoever the law of Ohio has ordained in reference to its subject matter; whatever rights or powers it has claimed for the State in regard to it, the act of congress has unconditionally recognized the whole. The second proviso of the 4th section, already quoted; contains no stipulation that ordinary travellers or passengers, or any others indeed, or any descriptions of property, save those expressly enumerated in the proviso, shall pass upon the road free of toll. It concedes to the federal government that stages carrying the mail, i. e. the carriages and the horses necessary for their use, and the mail itself, should not pay toll; but with respect to private travellers, and to every thing within or without those carriages, the law is entirely silent. By what correct implication, then, can the power of the State to levy tolls on travellers in such carriages be taken away. I can conceive of no implication tending to such a result, which would not obviously do violence to the language of the statute, as it would to every correct rule of construction, and to every intendment consistent with the natural and plain objects of the law. The fact that the State has exacted tolls on passengers in the stages carrying the mails, only beyond a certain number of carriages so employed, can by no correct reasoning affect the right of the State in this matter, however it might be received as a measure either of policy or liberality; for having the power absolutely to exact tolls of all travellers on the road not exempted by the proviso, this power carried with it, by every sound rule of logic, the right to discriminate between the subjects of her power. She had then a perfect right to declare that travellers in specified carriages carrying the mail should pass free of toll, and that those transported in other vehicles although bearing the mail, likewise should be subjected to the payment of toll. Such a regulation the State had the power to enact, had it been the dictate of mere caprice. A correct apprehension, however, of her policy and interests in reference to this road, and in reference to the accommodation of the public, will develop a more enlarged and more

equitable motive for the measures adopted by the State, [ 748 ] showing those measures to have been produced by the

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Neil v. State of Ohio. 3 H.

force of supervening circumstances. It cannot be denied, that in assuming the management of this road, the purpose of the State was to maintain and preserve it as a commodious highway. By the title of the law passed for its assumption, namely, " An act for the preservation and repair of the United States road," as well as by every clause and provision of that law, this object is clearly evinced. It is equally undeniable, that the means in contemplation for the accomplishment of this object were the usual and natural means by which artificial highways are supported, viz: the tolls collectable on travellers and on property transported upon it. The concession to the federal government of the free passage of a portion of its mails over this road, and of the vehicles in which they might be carried, was an act of fairness and liberality which should not be made the pretext for abuse and monopoly, such as must, if permitted, dry up the source whence the means of maintaining the road are to be derived, and which would operate for the exclusive advantage of the favorites of such monopoly, and for the serious injury of the public. To guard against consequences like these, the power reserved by the 15th section of the law of 1831 was retained by the State, a power expressly recognized to its full extent by the act of congress adopting the former law; and it can as little be doubted, that, in the practical experience of those consequences, and in the intention of applying a remedy for them, the law of Ohio of March 9, 1838, and the order of the board of public works of the same State, had their origin.

But it is argued that the exaction of tolls on travellers in stages carrying the mails, would be a violation of the compact between the two governments, because it would enhance the demands of contractors for transporting the mail, and thereby become a tax upon the federal treasury, and in the same degree an impediment to the conveyance of the mails. It is a sufficient reply to such an argument to remark, that neither the law of Ohio nor the act of congress adopting that law, stipulates any exemption from tolls on travellers, but the exemption is limited to carriages only; and it is an inflexible rule of contract, too familiar to be commented on here, that neither party, singly, can superadd a term or condition to a contract completed. This argument is therefore utterly without force, even if the effects it seeks to deduce could be demonstrated. It is fallacious too in another respect. The monopoly in support of which it is adduced, by enabling the mail contractor to drive off all competition, whilst it puts it in his power to withhold the tolls by payment of which the road would be supported, enables him to practise the very extortions upon the government which fair competition would be the surest means of preventing. But conceding, for the moment,

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VOL. XV.

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