44 U.S. 720

3 How. 720

11 L.Ed. 800

NEIL, MOORE & COMPANY, PLAINTIFFS IN ERROR,v.

THE STATE OF OHIO, DEFENDANT.

January Term, 1845

1 THIS case was brought up under the 25th section of the Judiciary Act, by writof error, from the Supreme Court of Ohio.

2 It involved the construction of the acts of Congress and the state of Ohio,relative to the cession of the Cumberland road, which are narrated in apreceding part of this volume, in the case of Searight v. Stokes et al., p. 151.

3 It is proper, however, to state the law of Ohio with more particularity than itwas necessary to do in the report of that case. The proviso contained in the 4thsection of the act of 1831, was there recited, but the 5th section was not. Theyare as follows:

4 Sect. 4 lays tolls, and adds: 'Provided, That nothing in this act shall beconstrued so as to authorize any tolls to be received or collected from anyperson passing to or from public worship, or to or from any muster, or to orfrom his common business on his farm or woodland, or to or from a funeral, orto or from a mill, or to or from his common place of trading or marketing,within the county in which he resides, including their wagons, carriages andhorses, or oxen drawing the same: Provided also, That no toll shall be receivedor collected for the passage of any stage or coach conveying the United Statesmail, or horses bearing the same, or any wagon or carriage laden with theproperty of the United States, or any cavalry or other troops, arms or militarystores belonging to the same, or to any of the states comprising this union, orany person or persons on duty in the military service of the United States, or ofthe militia of any of the states.

5 'Sect. 5. That it shall be lawful for the General Assembly, at any future sessionthereof, without the consent of Congress, to change, alter, or amend this act:Provided, That the same shall not be so changed, altered, or amended, as toreduce 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 thesaid road, to the erection of gates and toll houses thereon, and for the paymentof the fees or salaries of the superintendent, the collectors of tolls, and of suchother agents as may be necessarily employed in the preservation and repair ofthe same, according to the true intent and meaning of this act.'

6 On the 6th of February, 1837, the state of Ohio passed an act, containing,among other provisions, the following, viz.:

7 'Sect. 4. That one daily stage, coach, or other vehicle, and no more, with thehorses drawing the same, belonging to any contractor or contractors forcarrying the United States mail on said road, with the passengers therein, shallbe permitted to pass in each direction free from the payment of tolls; and eachadditional stage, coach, or other vehicle belonging to such contractor orcontractors, although the same may contain a mail, or portion thereof, shall becharged with the same tolls as other vehicles of the like kind. But if thepostmaster-general shall order the mail to be divided, and carried in two ormore stages, coaches, or vehicles, in any one direction daily, then in such casethe coaches or vehicles in which mails shall actually be carried, shall pass freeof toll; but on each passenger transported in any such additional stage, coach, orvehicle, there shall be charged and collected at each gate, three cents, in mannerhereinafter provided.

8 'Sect. 5. That each and every driver of any stage, coach, or other vehicle,belonging to any such mail contractor or contractors, other than such as areentitled to carry passengers free of toll, shall, at each and every gate, report thenumber of seats occupied in such stage, coach, or other vehicle, to the keeper ofsuch gate, whose duty it shall be to open an account against the proprietor orproprietors of such stage, coach, or other vehicle, and charge, in a book to bekept for that purpose, three cents for each passenger, as provided in thepreceding section of this act; and said proprietor or proprietors shall pay over tosuch gate keeper, at the end of every three months after the taking effect of thisact, the aggregate amount of tolls which shall have become due for passengers,and charged as above provided.

9 'Sect. 6. That should the driver of any stage, coach, or other vehicle, belongingto such mail contractor or contractors, other than such as are entitled to carrypassengers free of toll, neglect or refuse to report to any gate keeper the numberof seats occupied in said stage, coach, or vehicle, it shall be the duty of suchgate keeper to charge the proprietor or proprietors of such stage, coach, or othervehicle, at the rate aforesaid, for each and every seat which might be occupiedin the same, to be recovered in an action of debt, in the name of the State of

Ohio, in any Court having competent jurisdiction.

10 'Sect. 8. That the board of Public Works, or their authorized agent, may beallowed to collect tolls from any proprietor or proprietors of any line of stages,post-coaches, or other vehicles for the conveyance of passengers, quarterly; andif any proprietor or proprietors of any such line of stages, post-coaches, or othervehicles as aforesaid, shall neglect or refuse to pay quarterly, that from and aftersuch neglect or refusal, the said proprietor or proprietors as aforesaid shall berequired to pay at each and every gate as they pass: Provided, That the Board ofPublic Works, or their authorized agent, shall have made out and presented toany such proprietor or proprietors, or any one of them, the amount of the tolldue from him or them for each and every gate.'

11 The act of the legislature, of March 19, 1838, provides as follows:

12 'Sect. 24. That the said Board of Public Works shall have power to revise therates of toll to be paid by persons passing on or using the National road in Ohio,and so to modify the same, from time to time, as to raise, and collect, in themost equal manner, the sum necessary to defray the expenses incident to thepreservation and repair of said road, to the erection of gates and toll-housesthereon, and for the payment of the fees or salaries of the superintendent, thecollectors of tolls, and of such other agents as may be necessarily employed inthe repair and preservation of the same, according to the true intent andmeaning of the act, passed February 4th, 1831, entitled 'An act for thepreservation and repair of the United States road."

13 The order of the Board of Public Works, above referred to, is as follows:

14 'By virtue of the powers vested in the Board of Public Works, by the 24thsection of the act 'in addition to an act for the preservation and repair of theUnited States road,' passed March 19th, 1838, it is hereby

15 'Ordered, That instead of the rate of toll charged on each passenger by the 4thsection of the act 'fixing the rates of tolls on the National road,' passed February6th, 1837, there shall be charged ten cents, at each gate, on each of suchpassengers.'

16 In October, 1842, a suit was brought in the Court of Common Pleas, in Franklincounty, against Neil, Moore & Co., for tolls on passengers conveyed in stagesby the defendants, on the National road, and the following agreed statement offacts was filed:

17 'In this case, the following facts are agreed by the parties: The partnership ofthe defendants, as alleged, is admitted. The plaintiff claims to recover for tollson passengers carried upon the National road, in Ohio, in coaches belonging tothe defendants, other than and besides one daily stage-coach, carrying the mailof the United States; which said coach, with the horses, passengers, and everything else pertaining to it, was permitted to pass toll free. The order of theBoard of Public Works, hereto annexed, was made in due form, at the datethereof, and is to be admitted in evidence. The passengers upon whom toll issought to be recovered, were carried by the defendants, as above mentioned,between the first days of April and October, A. D. 1842. The defendants werecontractors for carrying the mail of the United States upon said road, and saidpassengers were all carried in coaches in which a part of said mail was carriedat the same time; the mail being thus carried in more than one coach, pursuantto orders from the postmaster-general; one coach, containing a part of the mail,and the passengers, and baggage, and every thing on it, being, at the same time,permitted to pass toll free, as above stated. The mail was carried in one line ofcoaches, down to the time stated in the annexed statement of the postmaster-general, which, together with the accompanying orders of the department, aretaken in evidence in this case. Both before and since the construction of theNational road, it was the uniform practice, in Ohio, to carry passengers on thecoaches carrying the mail; and since the construction of the National road, noclaim was made for toll on such passengers, or coaches, or on any thingpertaining to them, except as shown by the case of The State of Ohio v. Neiland Moore, 7 Ohio, 132. Until the mail was carried in two separate lines ofcoaches, as specified in the said statement of the post-master-general, and in themanner and for the purpose therein mentioned, the defendants were required tocarry the mail in two separate lines of coaches, and did so carry it accordingly.It is admitted that the acts of the legislature of Ohio, and the orders of theBoard of Public Works, in existence when the tolls in question accrued, did notreduce or increase the rates of toll, hereby established, below or above a sumnecessary to defray the expenses incident to the preservation and repair of thesaid road, to the erection of gates and toll-houses thereon, and for the paymentof the fees or salaries of the superintendent, the collectors of tolls, and of suchother agents as may be necessarily employed in the preservation and repair ofthe same; but it is not intended by this admission to preclude the defendantsfrom objecting to the validity or legality of said charge of toll upon passengers,upon any ground they may think proper to take in the argument. It isunderstood and agreed that this case shall not in anywise prejudice the rights ofthe plaintiff, nor of the defendants, in any other suit, upon any demand notincluded in the facts hereby agreed. For the mutual convenience of the parties,this case is narrowed down so as to present only the question arising upon thefacts above stated. Any material fact left out in this agreement, may besupplied, by proof, on the trial, by either party, after giving the other party

reasonable notice of such intention. It is agreed by the parties that the wholenumber of passengers charged with toll at all the gates, between the first daysof April and July, A. D. 1842, was ten thousand seven hundred and fifty-six,and that the whole number chargeable between the first day of July andOctober, A. D. 1842, was twelve thousand six hundred and seventeen; and thatif the plaintiff be entitled to recover, judgment shall be entered for the sum of$1075.58, with interest from the first day of July, 1842, and $1261.67 1/2, withinterest from the first day of October, A. D. 1842, and costs, or for such othersums as may be due, computing the tolls on said passengers at any other ratethan that fixed by the Board of Public Works, if the court deem it competent toadopt any other rate, with interest on the gross sums due on the first days ofJuly and October above mentioned, from those times respectively, and costs.'

18 The Court of Common Pleas were of opinion that judgment should be enteredfor the plaintiff, and the damages were assessed at $2438.25.

19 The defendants carried the case to the Supreme Court of Ohio, where, inDecember, 1843, the judgment of the court below was affirmed, and thefollowing certificate was annexed to the record.

20 'And it is hereby certified, that on the trial of this cause the defendants set upand claimed the right and authority to transport, in their two daily lines of mail-coaches, which carried the United States mail, under a contract with thepostmaster-general, and by the authority of the United States, passengerstravelling therein, free of toll, along the United States road, in the state of Ohio,and through the toll-gates erected by the said state thereon; that the saiddefendants set up and claimed this power and authority under and by virtue ofthe act of Congress approved the 2d day of March, A. D. 1831, entitled, 'An actdeclaring the assent of Congress to the act of the General Assembly of the stateof Ohio,' recited therein; and that in said case there were drawn in question theconstruction, effect, and validity, of said act of Congress, and the right andauthority claimed by the said defendants under the United States, by virtuethereof, and that the decision was against the validity of said act to confer theright and authority so claimed.'

21 The defendants sued out a writ of error, to bring this decision of the SupremeCourt of Ohio before this court.

22 Ewing, (in writing,) for plaintiffs in error.

23 Swayne, for defendant in error.

24 Ewing referred to the law of Ohio, passed in 1838, and the order of the Boardof Public Works, (both of which have been already cited,) and then proceededthus:

25 Under this law and this order, there was charged against the plaintiffs in error,on passengers transported in one of their lines of coaches, in which they carriedthe United States mail, by order of the postmaster-general, a large amount oftolls, which charge, as stated in the agreed case, is the foundation of this suit.

26 I contend that the second proviso in the 4th section of the statute of Ohio, ofFebruary 4th, 1831, which exempts from the payment of toll 'any stage or coachconveying the United States mail,' &c., when assented to by the act ofCongress of March 2d, 1831, became and was an essential part of a contract,over which Ohio alone had no power or control. On the other side, Iunderstand, it will be contended that the 15th section of the statute reserves toOhio the right to alter or abolish that exemption at pleasure. This is the firstquestion which we present for the consideration of the court.

27 If we leave out of view the 15th section, this statute, as assented to, is clearly acontract. By it the United States surrenders the road to Ohio, in consideration ofwhich Ohio agrees to levy tolls, and keep the road in repair, and suffer themails and other property of the United States to pass along it toll free. Now,could it have been the intent of the contracting parties to put it in the power ofone of them to annul at pleasure a valuable provision of that contract, and issuch intent unequivocally expressed in the 15th section? I think not. It is notreasonable to suppose it, and the statute does not necessarily require, if, indeed,it will admit of a construction which will allow it.

28 The first four sections of the statute contain, 1st, a contract. 2d, The means indetail, by which Ohio proposes to execute it on her part, couched in very specialdirections to the governor to that effect. The contract was not properly an act ofthe legislature, and I do not admit that it was so considered or treated of in the15th section. But all those matters which did not pertain to the contract, thoseprovisions which touched not its execution, but the mode and manner of itsexecution, fell at once within the sovereignty of Ohio; and the statute, so far asit relates thereto, became and was, to all intents and purposes, an act of herlegislature. Now, there are here a contract and a statute. Ohio reserves the rightto 'change, alter, and amend' the statute, but surely not to change, alter, andamend the contract. Indeed, if there be a contract, such a provision would bevoid, because it would be inconsistent with and destructive of it. But the twoprovisos in the 4th section, and the proviso in the 15th section, do all, as I think,look to the distinction between that which is contract, and that which is merely

a legislative act.

29 The first proviso in the 4th section, which makes some domestic exemptionsfrom toll, with which Congress had nothing to do, (such as persons going tomarket, to public worship, &c.,) is couched in this language, 'provided, thatnothing in this act shall be so construed as to authorize' the collection of tollsfrom such objects; but it does not say that no tolls shall be collected from them.This statute does not authorize such collection, yet some future act may. But thesecond proviso which follows this immediately, and which might have beenincluded under the first, without any 'provided also,' had it not been intended toplace the two subjects in totally different categories, declares 'that no toll shallbe received or collected for the passage of any stage or coach conveying theUnited States mail,' &c.—not confining it to the construction of this statutemerely, as in the other case, but a universal prohibition, extending to all futuretime.

30 The proviso in the 15th section seems to contemplate alteration and amendmentin the rates of toll, not in the objects on which it is to be levied.

31 'It shall be lawful for the General Assembly, at any future session thereof,without the consent of Congress, to change, alter, or amend this act: Provided,that the same shall not be so changed, altered, or amended, as to reduce orincrease the rates of toll hereby established below or above, &c.' So that theobjects exempted from toll by the second proviso, are, for that reason, out ofthe operation of the 15th section. There may, it is true, be some inconsistency inthe apparent ends and objects of the first proviso in the 4th and the proviso inthe 15th section the one implying that the objects subject to toll might, and theother that they might not, be thereafter extended. Yet both are inconsistent withthe supposition that toll might be levied on the objects exempted in the secondproviso. But it is still more important that the chief end and purpose of thecontract would be frustrated and destroyed by allowing Ohio to repeal thatproviso.

32 But if Ohio had a right to change and alter that proviso, and if it were sochanged by the act of February 24th, 1837, it is restored by the 24th section ofthe act of March 19th, 1838. That act empowers the Board of Public Works torevise the rate of tolls on the National road, and to modify the same so as toraise and collect, in the most equable manner, the sum necessary to defrayexpenses, &c., 'according to the true intent and meaning of the act of February,1831.' And the Board of Public Works, by virtue of the power so vested inthem, charged the toll which is the subject of this suit; so that at last the caserests upon 'the true intent and meaning of the act of February 4th, 1831,' just as

it stood when it was adopted by Congress, and became a contract between theUnited States and Ohio.

33 2. I contend that the levy of the toll, which is the subject of this suit, was aviolation of that contract.

34 Nominally, and in express words, by the statute of March 19th, 1838, thesecond mail-coach, as well as the first, is permitted to pass toll free; but toll ischarged against the proprietor of such coach for the passengers which arecarried in it. Now, no toll is charged to persons who pass the gates, unless theypass in a mail-coach. Out of the mail-coach they go free—in it, toll is chargedupon them against the proprietor, because he owns the mail-coach; or, in otherwords, toll is charged upon the mail-coach to the amount of ten cents for eachpassengers which it carries.

35 Now, it cannot for a moment be contended that, under this contract, (if it be acontract,) and within its spirit, either the horses drawing the mail-coach, or theperson driving it can be charged with toll. It would be a mere evasion tocontract that the mail should pass toll free, and yet charge toll on its necessaryincidents. I think it would be equally so, though not at first view so striking, tocharge toll on that which was its uniform incident at the time of the contract,because not absolutely indispensable to its passage. Thus it is with thetransportation of passengers. The agreed case shows that, at the time of thecontract, and before and since, it has been the uniform practice to carrypassengers in the mail-coaches.

36 It must be presumed that the contract was made with a view to that practice;and in stipulating that the mail-coaches should pass free of toll, that bothparties intended they should so pass with their usual incidents—horses,coachmen, guards, passengers. If not with all, with what part? It will beanswered, that only which is necessary. But the question recurs, how farnecessary, and who is to determine the necessity which will bring the casewithin the spirit of the contract? Horses are necessary, but how many? Personsto conduct the coach and protect the mail, but how many of them? May youtake an agent or guard free of toll? The necessity for each of these is in thesame degree with the necessity of passengers—both tend to the security of themail; but it is possible that it may go safely without either, and both or neithershould be exempt from toll.

37Such was clearly the understanding at, and long after, the date of the contract.The agreed case shows that Ohio permitted and still permits, one daily line of

mail-coaches to go, with its passengers, toll free. There was, therefore, a perfectunderstanding as to what was carried, and should continue to be carried, in themail-coach, and partake of its exemption. But the state now claims to limit thisexemption to the passengers in one daily line of mail-coaches, and to chargetoll on those transported in the second daily line. I think there is nothing towarrant this limitation. It is true, that at the time of making the contract the mailwas carried in one daily line of coaches, but there is nothing in the contract tolimit it to that; but, on the contrary, it must have been within the contemplationof the parties that the number of lines should be increased according to thewants of the country, and the convenience of the department. This, also, seemsto be admitted; for the second line of coaches is permitted to pass toll free, if itcarry no passengers. Now, if the first line of coaches has a right, under thecontract, to carry its passengers toll free, and if the second line has a right topass toll free, no toll can be charged upon it for its passengers, for they are justas much the usual and well understood incident of a second, as of a first line ofmail-coaches. Toll, therefore, can be charged upon them only where the mail isput into more than one line of coaches wrongfully, for the purpose of avoidingthe payment of toll. We show that such is not the case here.

38 3. But I contend, also, that the coach carrying the United States mail, upon apost road established by law, is a matter over which a state has no power orsovereignty, and which it cannot by law burden with any toll or impositionwhatsoever. It is another question, how a road, which is the property of a state,is to be made a post road; but when it once is so, and fairly the property of theUnited States, as this road was, and is to that extent and for that purpose, thestate has no power to interfere with, lay burdens upon, or prescribe the mannerof its use. The mail is transported under a law of Congress, by contracts madewith the postmaster-general. For the convenience of the public and the securityof the mails, he requires it to be carried in coaches adapted to the transportationof passengers, and the contracts could not be executed according to their spirit,and with due regard to the safety of the mails, should the contractor fail toprovide for the transportation of passengers. The compensation paid forcarrying the mail is fixed with a view to these duties and conditions, and anytax or toll levied on a contractor on account of passengers, by so much lessenshis compensation, or it compels the department to increase it to an equivalentamount. Nay, if such toll may be levied, it enables a state, at pleasure, toprohibit the transportation of passengers in all mail-coaches, and thus takeaway its greatest safeguard. In like manner, the state might tax, at its toll-gates,even to prohibition, a guard passing upon and with the coach carrying the mail.This case, as I view it, falls within the reasoning of the court in Dobbins v. TheCommissioners of Erie county, 16 Pet., 448, 450.

39 The transportation of the United States mail is a substantive power in Congress,to which the establishment of post-roads, though specially granted by theConstitution, is but an incident; for it can be only with a view to thetransportation of the mail that Congress could use the power to establish post-roads, and the passage of the mail in the coach along the post-road, with thehorses which move it, and the drivers who guide, and the passengers, or guardswho protect it from violation, are, to borrow the language of the court, inMcCulloch v. Maryland, which is repeated by Chief Justice Marshall, inWeston v. The City of Charleston, 2 Pet., 46, 'those means which are employedby Congress to carry into execution the power conferred on that body by thepeople of the United States,' and 'the attempt to use the power of taxation,' orthe levying of tolls 'on the means employed by the government of the union inpursuance of the Constitution, is itself an abuse, because it is the usurpation ofa power which the people of a single state cannot give;' for 'the states have nopower, by taxation or otherwise, to retard, impede, burden, or in any mannercontrol the operation of the constitutional laws enacted by Congress to carryinto execution the powers vested in the general government.

40 The right to tax these contracts for the transportation of the mail must operateupon the contractors before they make their bids, and thus have a sensibleeffect upon the contracts. If this power be allowed to exist at all, in this case,'its extent depends upon the will of a distinct government. It may be carried toan extent which will arrest them entirely.'

Swayne's argument was as follows:

41 Before proceeding to the discussion of the question arising in the case, Irespectfully submit to the consideration of the court the following preliminarypoints:

42 1. The act of the legislature of Ohio, of February 4, 1831, which lies at thebottom of this controversy, and upon which it must be determined, is a localstate law, and, being such, this court, in giving it a construction, will follow thedecisions of the highest judicial tribunal of that state. McKean v. DeLancy'sLessee, 5 Cranch, 32; Polk's Lessee v. Wendall, 9 Id., 87; Mutual Ass. Society v.Watts, 1 Wheat., 279; Shipp et al. v. Miller's heirs, 2 Id., 316; Gardner v.Collins, 2 Pet., 58; U. S. v. Morrison, 4 Id., 127; Anderson et al. v. Griffin, 5Id., 151.

43 'We receive the construction given by the courts of the nation as the true senseof the law, and feel ourselves no more at liberty to depart from that construction

than to depart from the words of the statute. On this principle, the constructiongiven by this court to the Constitution and laws of the United States, is receivedby all as the true construction; and on the same principle, the constructiongiven by the courts of the several states to the legislative acts of those states, isreceived as true, unless it conflict with the Constitution, laws or treaties of theUnited States.'

44 'This course is founded upon the principle supposed to be universallyrecognized, that the judicial department of every government, where suchdepartment exists, is the appropriate organ for construing the legislative acts ofthat government.' Elmendorf v. Taylor et al., 10 Wheat., 152.

45 'Nor is it questionable that a fixed and received construction of their respectivelaws in their own courts, makes in fact a part of the statute law of the country,however we may doubt the propriety of that construction.' Shelby et al. v. Guy,11 Wheat., 361.

46 2. If there be doubt in the minds of the court as to the proper construction of thelegislative act of 1831, that doubt will be so resolved as to sustain the claim ofthe defendant in error.

47 'The presumption must always be in favor of the validity of laws, if the contraryis not clearly demonstrated.' Cooper v. Telfair, 4 Dall., 14.

48 If the first of these points be sustained, it determines this case. This identicalquestion has been twice decided by the highest court of judicature of the state,in favor of the defendant in error. The first of these decisions was made in1835, by the Supreme Court of the state, sitting in bank, (The State of Ohio v.Neil & Moore, 7 Ohio, 132;) the second, by the Supreme Court in this case.

49 Why is this point not tenable? It is true, Congress assented to the act of thelegislature; but that assent was given without limit or qualification. It does notmake the act any the less 'the act of the legislature of a particular state'—nordoes it in any wise change the principles upon which it is to be construed. I amunable to perceive any reason why its construction should not be determined bythe same lights which are applied in this court to other state enactments; and Ithink it may be safely affirmed that every argument advanced in the authoritiescited, to sustain the principle which they decide, applies with undiminishedforce in this case.

50 If in this I err; if these two solemn decisions of the highest judicial tribunal of

the state have not settled the question, then I rely upon the merits of the case.

51 Before considering them, it is proper briefly to advert to the circumstancesunder which the road was ceded by the United States to the state of Ohio.

52 'In the construction of the statutory or local laws of a state, it is frequentlynecessary to recur to the history and situation of the country, in order toascertain the reason as well as the meaning of many of the provisions in them,to enable a court to apply with propriety the different rules of construingstatutes.' Preston v. Browder, 1 Wheat., 115.

53 At the time of the passage of the act of the legislature, of 1831, a considerablepart of the road in Ohio had been finished and in use some time. It was rapidlygoing to ruin. The general government made no appropriations, and took noother step to keep it in repair. There was no prospect of any such provisionbeing made. The same course had been pursued in regard to the road east of theOhio river, and large sections of it were nearly impassable. Under thesecircumstances, the state of Ohio came forward and proposed to take charge ofthe road within her limits, and keep it in repair upon the terms specified in theact referred to. Congress immediately assented, and the state thereupon tookcharge of the road. This act provided for a loan of money to the road fund. Suchloans have been frequently made since for repairs; and notwithstanding that thetolls have been repeatedly extended and enlarged, both as to objects and rates,the road is at this time largely in debt, and yet needs constant and large repairs.With all the tolls now levied upon it, inclnding the important item incontroversy in this suit, the road is a heavy burden to the state, and has required,and still requires unremitted vigilance and effort to prevent it from becoming anentire ruin.

54 Treating the question under consideration as an open one, I lay down twopropositions:

55 1st. That the state has as broad a right to levy and collect tolls upon this road, asif it had been constructed by her, without the United States having been in anywise connected with it; subject, however, to this perpetual and only restriction—that the whole amount collected shall be neither more nor less than sufficientto meet the costs and charges, direct and incidental, of keeping the road inrepair.

56 2d. That the levying of toll upon passengers conveyed in mail-coaches is not inconflict with the proviso in the 4th section of the act of 1831—'that no toll shall

be collected for the passage of any stage or coach conveying the United Statesmail, or horses bearing the same.'

57 If the first of these propositions be sound, the second is not material in thiscase. I rely, however, confidently upon both.

58 1. As to the first proposition.

59 It has been shown already that Congress consented unqualifiedly to all theprovisions of the act of the legislature of February 4, 1831.

60 For the sake of clearness and continuity of view, at the hazard of being tedious,I will here again quote the 15th section of that act. It is the turning point of thiscase.

61 'Sect. 15. That it shall be lawful for the General Assembly at any future sessionthereof, without the assent of Congress, to change, alter, or amend this act,provided the same shall not be so changed, altered or amended, as to reduce orincrease the rates of toll hereby established, below or above a sum necessary todefray the expenses incident to the preservation and repair of said road, to theerection of gates and toll-houses thereon, and for the payment of the fees orsalaries of the superintendent, the collectors of tolls, and of such other agents asmay be necessarily employed in the preservation and repair of the same,according to the true intent and meaning of this act.'

62 First. The power 'to change, alter, or amend,' is given in the broadest language.What is the restriction? Simply that 'the rates of toll' thereby established, shallnot be reduced or increased 'below or above a sum necessary' for thepreservation and repair of the road. This is the only restriction upon the powerof the state. The object of both parties was to preserve the road. Congress askedno guaranty beyond this, and the state gave none. To secure the preservation ofthe road, and at the same time to get rid of the burden, was the inducement tothe general government. To prevent the destruction of the road, and to providethe means of preserving it, from the road itself, was the purpose of the state.

63 Such being the only restriction upon the power of the state, whenever any act isdone by her, the validity of which is questioned, the true mode of arriving at asound conclusion, is to inquire whether it is within this restriction. If it be not,however unwise or impolitic it may be, it is as valid as any other act of thestate.

64Since the passage of the act of 1831, various objects, not enumerated in it, havebeen subjected to toll; but it is admitted in the agreed facts, that the 'rates' of allthe tolls are neither above nor below the sum prescribed in the act. Passengersin one of the lines of mail-coaches are a part of these objects. Are they withinthis restriction? Suppose the stages and horses carrying the mail had in likemanner been embraced in these objects, and subjected to toll, as upon otherturnpike roads; how could they be said to be within a restriction, which doesnot allude to them in the most distant manner, and which relates to a whollydifferent subject?

65 It may possibly be contended that the proviso in this section is confined to therates of toll upon the objects enumerated in that act. If it be so, it is immaterialin this case. The tolls in that act have been repeatedly increased, but neverreduced. If this construction be adopted, then the agreed fact, that all the tolls(including those upon new objects) are neither 'below nor above' the sumrequired to be collected, is an immaterial matter. Whichever construction beadopted, it is clear that levying toll upon an object not subjected to toll by theact of 1831, is not within this restriction.

66 The literal meaning of this proviso may possibly be as suggested, but a fewwords will be sufficient to show that such is not the proper construction. If itwere, this absurd consequence would follow; the state may raise the tolls uponthe objects specified in the act so high as to yield a sum sufficient to keep theroad in repair: and in addition, levy any amount of tolls upon other objects, andapply it to other purposes.

67 To insist upon such a construction, would be about as rational as for thedefendant in error to contend, that coaches carrying a part of the mail are notwithin the terms and meaning of the clause exempting from toll coachescarrying the mail.

68 If we look beyond the letter of the proviso to the context of the act, no doubtcan remain as to its true meaning. Either construction, however, affects thedefendant in error alike, and suits equally with the views here presented.

69 After this examination of the subject, can it be doubted, that it was the intentionof both parties, when the acts of 1831 were passed, that the state should haveall the power claimed for it in this proposition, subject only to the restrictionmentioned.

70 Second. The act of February 4, 1831, contains a proviso, at the end of the 1st

section, and two at the close of the 4th section, to which, in connection, I desireto call the attention of the court.

71 The first provides that the number of gates on the road shall not exceed one forevery twenty miles.

72 The second exempts from toll, persons passing to or from public worship; or, toor from musters; or, to or from their common business on their farms orwoodlands; or, to or from a funeral; or, to or from a mill; or, to or from theircommon places of trading, or market, including their carriages and horses, oroxen drawing the same.

73 The third exempts from toll, any stage or coach conveying the mail of theUnited States, and the horses drawing the same; any wagon or carriage ladenwith the property of the United States; any cavalry or other troops of the UnitedStates; arms or military stores belonging to the United States; arms or militarystores belonging to any of the states, or to any person or duty in the militaryservice of the United States, or of the militia of any of the states.

74 All these provisos stand upon the same footing. They are alike obligatory as toduration and inviolability.

75 If the state can 'alter, amend, or change' any of them, she can all. She canabrogate all or none. All or none were intended to be perpetual and unalterable.

76 The state has found it necessary, besides increasing the rates of toll, to increasethe number of gates. There are gates now every ten miles, and, in someinstances, 'half gates' at the end of five miles.

77 She has abrogated the exemption from toll in favor of those going to mill,market, and their common places of trading.

78 She has abrogated nearly all the other exemptions.

79 That in favor of mail-coaches and horses is one of the few left.

80 Was it a violation of the act of 1831 to erect these gates, and abrogate theseexemptions? Was it within the restriction contained in the 15th section?

81 Have not all those passing the additional gates, and all those going to mill,

market, or their usual places of trading, much more ground for complaint thanthe plaintiffs in error? Can they resist the payment of the new tolls imposedupon them?

82 If the state had a right to make these changes in the act of 1831, and to abrogatethese exemptions, has she not the same right to abrogate the remainingexemption as to mail-coaches, whenever she may think proper to do so?Wherein lies the difference, and how are the cases distinguished?

83 It will be observed that these exemptions contain no words of perpetuity.

84 The part of the statute which contains them is separated from the partcontaining the power to alter and amend and restricting it, by ten interveningsections, which are wholly silent upon the subject.

85 If it had been the intention of the legislature that this exemption as to mail-coaches and horses should be perpetual, would there not have been added, atthe end of the 15th section, after the other perpetual restriction which itcontains, a clause like this:

86 'And provided also, That no toll shall ever be collected from any stage-coachcarrying the mail of the United States, nor from the horses drawing the same.'

87 Nothing of this kind is to be found in any part of the act.

88 I think these views fully sustain the first proposition.

89 2. As to the second proposition.

90 The ground upon which the plaintiffs in error mainly rely, is, I understand, thatpassengers conveyed in coaches carrying the mails are within the proviso of thefourth section of the act of 1831, which exempts the coach and horses from toll,and consequently that such passengers are exempted also.

91 If this were so, I think I have shown, that it was in the power of the legislatureat any time to abrogate all or any part of this exemption, and if it werenecessary, I might safely contend that as respects such passengers, thelegislature has done so.

92 But I rely confidently upon the proposition, that such passengers are not within

this exemption.

93 In the year 1835, the Supreme Court of Ohio, in bank, in a case between thesame parties, (adverted to elsewhere in this argument in another connection,)delivered the following unanimous judgment upon this point:

94 'First, then, is the act of the General Assembly imposing this toll,unconstitutional? Or, in other words, is it a tax on the coach itself, calculated inits consequences to impede or obstruct the conveyance of the United Statesmail? We hold the negative. The coach, the horses, the drivers, and theproprietors are exempted in express terms. But it is said that contracts for thetransportation of the mail were made in reference to the conveyance ofpassengers. Such may have been the case. The postmaster-general is notauthorized, however, to make any contract exempting passengers, either incoaches, or on foot, from the payment of toll. His contracts can extend only tothe mail, and the mode of its conveyance. The defendants have the right to theroad secured to them by the acts of Congress, and of the Assembly, free fromtoll, for such carriages, horses, and attendants, as may be necessary to enablethem fully to comply with their contracts; but when they attempt to go beyondthis, and resort to means to increase their profits, not necessarily connected withtheir contracts, they, like others, are rightfully subjected to the inconvenience ofpaying the toll, which the convenience of a good road imposes.

95 'The proposition cannot, we think, be maintained, that passengers are necessaryfor the conveyance of the mail, and if they are not, a tax on them is, in no lightin which the subject can be viewed, a tax on the coach itself, nor calculated, inits consequences, to impede or obstruct the transportation of the mail.' State ofOhio v. Neil & Moore, 7 Ohio, 133.

96 This opinion was adhered to and deliberately affirmed in the case at bar. Thereasoning of the court seems to me to be conclusive. It covers the whole groundof the objections urged by the plaintiffs in error. Further discussion can addlittle to its force. I should not fear to rest this part of the case entirely upon it.The proposition which it maintains, however assailed, requires, I think, littleeffort to support it. It seems to me to be such, as almost to present one of thosecases, in which 'the truth is discoverable by its own light, without the aid ofargument.'

97 This toll is levied, not upon the plaintiffs in error, but upon the passengersconveyed in their coaches. If those from whom it is exacted pay it, surely it isno burden upon those who convey them. The latter are not compelled to pay it,

unless they assume it. Stripped of all circumlocution, the language of theplaintiffs in error is, in effect, this: Allow us to receive this toll, instead of thestate, and the mail will be carried at less cost to the Post-office Department. Thesame reasoning upon which they rely, would apply equally to every thing elsethey may choose to carry in their mail-coaches, or indeed, in any other vehiclein which they may carry a part of the mail, with the sanction of the postmaster-general. The answer is, that the general government has not asked, and that thestate had not conceded, any such exemption. I do not see but that the sameargument would apply with equal force to any other toll collected on the road.Give to the plaintiffs in error any other toll, and undoubtedly they would carrythe mail at so much less cost to the government.—The circle of this argument iswide enough to include every toll levied upon the road. If we depart from theconstruction of this exemption, contended for by the defendant in error, whereshall the departure be limited?

98 Another act of the legislature of Ohio provides, that 'all boats' belonging to theUnited States 'shall be permitted to navigate either of the canals of this state,free from the payment of tolls.' 38 Ohio Laws, 87. Does this exemption of theboat from toll, exempt from toll also the lading upon it belonging to privateindividuals? If the exemption of the coach exempts the passengers, why doesnot the exemption of the boat also exempt the lading?

99 Before and at the time of the passage of the act of 1831, it was no more 'usual'to convey passengers in mail-coaches on the National road, than it was beforeand at the time of the passage of this law, to transport lading in boats upon thecanal. 'If not necessary, it is useful' in the same manner. Were the boatremoved, by contract, from point to point upon the canal, the exemption of thelading would as much lessen the cost of the removal of the boat, as theexemption of the passengers would lessen the cost of the transportation of themail. Were the boat a mail-boat, the exemption of the lading would be muchmore important to the United States than the exemption of passengers asclaimed in this case. Lading is as closely associated with the idea of a boatupon the canal, as passengers are with that of a mail-coach on the Nationalroad. The term boat as much includes lading, as the term mail-coach doespassengers. I am aware of no argument applicable to one, that does not applyequally to the other. In my apprehension the parallel is perfect.

100 To insist seriously that the exemption of the boat exempts the Iading, wouldprobably be deemed by all a gross absurdity. Does not this claim of theplaintiffs in error, by the clearest analogy, embrace that case and lead to thisresult?

101 A proposition leading to a consequence so absurd, must, itself, necessarily beunsound.

102 It will be observed that the decision of the Supreme Court in 1835 was madebefore the plaintiffs in error entered into the contract with the postmaster-general, which was in existence when this cause of action arose. That contractwas made, and this liability incurred, of course, with full knowledge of thatdecision.

103 It will also be observed that the objection to the toll in question does not comefrom the general government, which is said to be aggrieved, nor from thoseupon whom the toll is laid, but from the mail contractors, who have voluntarilyassumed a vicarious responsibility for their passengers, and patriotically seek inthis suit, unbidden, to vindicate the violated rights of the United States.

104 Upon what consideration this is done, it is not material to inquire.

105 Since the foregoing was written, I have seen the argument of the plaintiffs inerror. It renders a few additional remarks necessary.

106 It is not denied that it was within the power of Congress to surrender the road tothe state upon any terms that might be agreed upon. The whole question is,What were the terms? They are to be found in the 15th section of the act of1831. There is the 'contract.' The power to 'alter, change, and amend,' is, (asbefore remarked,) unlimited by 'any qualification,' except as to the amount to becollected. Mr. Ewing's argument would change the contract, and impose acondition which is contrary both to the terms and implication of the agreement.In order to warrant his construction of this act, it would be necessary (assuggested in the preceding argument) to 'dislocate' the proviso upon which herelies from its place in the 4th section, and, thrusting it over the ten interveningsections, interpolate it as a second proviso at the end of the 15th section.Otherwise, it is clear that the construction for which he contends is bothgrammatically and logically incorrect. It is only by confusing these provisostogether, and losing sight of their different and relative places in the context,that any doubt can arise on this point.

107 It is admitted that it was competent for the state to abrogate all the exemptionscontained in the 4th section, except that relating to mail-coaches. Thedistinction attempted to be established between that and those which precede it,is unwarranted by any principle of construction with which I am acquainted.They stand upon the same footing, and are all alike alterable or unalterable.

108 When the act of 1831 was passed, the legislature obviously believed that theroad, with all the exemptions specified in the 4th section, would yield a sumsufficient for its preservation. But as the experiment was an untried one, thestate was willing to bind herself by no restriction whatever, but that the sumcollected should be neither more nor less than sufficient to keep the road inrepair. Her experience has shown the wisdom of this caution.

109 The act of February 6th, 1837, imposes a toll at each gate, of three cents, uponthe passengers in question. The act of March 19th, 1838, authorizes the Boardof Public Works to 'revise' the rates of all the tolls—'to be paid by personspassing on, or using, the National road.' In the exercise of this power the boardhas raised the toll in controversy from three to ten cents. It is admitted that theyhave not transcended the limitation contained in the 15th section of the act of1831. Their action, then, is 'according to the true intent and meaning of the actof February 4th, 1831.' The legislature used the language just quoted in the actof 1838, obviously with a view to the restriction contained in the 15th section ofthe act of 1831, and not, as intimated in the argument of the plaintiff in error,for the purpose of submitting the question to the board, as an open one—whether the act of 1831 permitted such a toll to be exacted. That question hadbeen determined by both the legislature and the Supreme Court. The dutydevolved upon the board was, to 'revise,' upon the principles indicated, the pre-existing tolls.

110 It is said that the state still exempts from toll the two lines of mail-coaches, andthe passengers conveyed in one of them.

111 This is true; and the exemption is practically larger and more injurious to thefund arising from the road, than it was when the act of 1831 took effect. Then,the exemption was confined to one line of coaches and the passengersconveyed in it. How long the state will be able to continue this exemption in itspresent extent, will depend upon the amount of expenditure necessary to keepthe road in repair. She is bound by her contract with the United States to collectthis amount. The sum constantly increases as the road becomes more worn. Herforbearance during the few years which has elapsed since she took charge ofthe road, can surely afford no argument against any right to which she isentitled under a fair construction of the act of cession.

112 It is said, also, that this road 'is a post road established by law.'

113 Admitting this to be so, in my view of the subject it does not affect the questionunder consideration. But the assumption is erroneous. Congress has designated

the points where post-offices shall be established, and directed the mail to beconveyed to them; but the road is not specified upon which it shall be conveyed.This, then, is no more 'a post road established by law,' than any other road overwhich the mail is carried. Indeed, the power to establish post roads, it is said,has never been exercised by Congress in any instance. 3 Story Const., 43.

114 Whenever this power shall be exercised either as respects state roads alreadyexisting, or those to be constructed for that purpose by the general government,a host of new and most difficult questions will at once arise between the severalstates and the United States. A glance at the learned work referred to will showthem. It is unnecessary to consider any of them here.

115 This not being a post road established by law, the argument founded upon thatassumption falls to the ground.

116 It may, however, be contended, that this and all other roads upon which themail is conveyed, are established as post roads by necessary implication fromthe acts of Congress establishing post-offices upon them, and directing the mailto be conveyed to such offices.

117 If so, the answer is obvious. If the United States buy in the property of a debtorin satisfaction of a judgment, such property is still liable to taxation by the state.A branch of the Bank of the United States was not liable to be taxed, but thereal estate held by the bank, which the branch occupied, was so liable.

118 It has never been questioned that the coaches and horses belonging to thecontractor, which he uses in the transportation of the mail, are liable to taxationby the state, like all other individual property, and if the contractor convey themail upon a turnpike on which tolls are collected, he is liable to the same tollsas other persons. The power to levy such taxes and collect such tolls, is withinthe exceptions distinctly recognized in all the cases decided by this court inwhich this subject has been considered. 4 Wheat., 316; 9 Id., 867; 12 Id., 136; 2Pet., 46; 16 Id., 442.

119 The argument upon the other side is broad enough to maintain the proposition,that such coaches and horses are exempted both from taxation and toll.

120 Whenever the general government uses the instrumentality of private means toeffect its objects, such means are liable to taxation or toll, as the case may be, tothe same extent as if they were employed in the business of private individuals.This reasoning applies as much to this road as to any other; and the case must

necessarily turn upon other points.

121 It is strenuously contended, that the exemption of the coaches and horses fromtoll, exempts also the passengers as an 'incident.'

122 It will be readily perceived by the court, that if the argument of the defendant inerror fail on all the other points, yet, 'unless the plaintiff in error succeed inmaintaining this proposition, the judgment below must be affirmed.'

123 If my recollection serves me correctly, it is not many years since thetransportation of passengers in the mail lines, on the great routes, was greatlyrestricted, if not entirely prohibited, by the head of the Post-Office Department.Does he contract for the conveyance of passengers? Is that a matter aboutwhich the government concerns itself? The letter of the postmaster-general inthis case sets up no such claim as is insisted upon by the plaintiff in error, andmanifests no interest in the subject.

124 It has been held by this court, that a branch of the Bank of the United Stateswas not liable to taxation by a state, but that the stock in the bank, held by acitizen of the state, was. 4 Wheat., 316. Was not the argument for theexemption of the stock in that case much stronger than the argument for theexemption of the passengers here? The analogy is too obvious to needcomment. If the right claimed to collect toll from passengers be sustained, it isapprehended that 'the state might tax at its toll-gates, even to prohibition, aguard passing upon a coach carrying the mail.' The connection between the mailand the coach, horses, driver, and guard, is certainly very different from thatwhich subsists between the mail and the passengers. No right has been assertedby the legislature to collect toll from the proper incidents of the mail upon thisroad. When such a case shall occur, it will be early enough to adjudicate uponit. The question in this case is a very different one. It relates solely topassengers.

125 For a fuller examination of this point, I refer to the preceding argument.

126 Ewing, in reply.

127 I have said in the opening argument, that the National road in Ohio was, at thetime of the transfer to that state, and still is, a post road. This is denied by Mr.Swayne.

128 Acts of Congress, passed every four years since its construction, direct that the

128 Acts of Congress, passed every four years since its construction, direct that themail shall be carried daily from town to town, (as from Wheeling to Zanesville,and thence to Columbus,) which towns are upon the National road. The agreedcase shows that the mail was so carried upon said road ever since itsconstruction. The usage applying the law to this road, and the subsequent lawscoinciding with the usage, the reservation in the contract of the right totransport the mail along the road, and its subsequent continued transportation,make it, I contend, as fully a post road, as if it had been expressly declared soby act of Congress.

129 Mr. Chief Justice TANEY delivered the opinion of the court.

130 This case has arisen out of two acts of Assembly, passed by the legislature ofOhio, one in 1837, and the other in 1838, and an order of the Board of PublicWorks of that state, whereby a toll has been imposed upon passengers travellingin the mail-stage on the Cumberland road.

131 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 bywhich they ought to be interpreted. It is only necessary, therefore, on thisoccasion, to apply the principles there stated to the case before us.

132 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 onevery passenger in the mail-stage, at each toll-gate; and the second authorizesthe Board of Public Works to revise and modify the rates of toll to be paid bypersons using the road; and in pursuance of this authority the board passed anorder raising the toll on each passenger in the mail-stage to ten cents. But notoll is charged, either by the law or the order of the board, upon personstravelling in any other carriage.

133 The 4th section of the act of 1831, whereby the state of Ohio proposed, with theassent of Congress, to take charge of the road and keep it in repair, contains aspecific enumeration of the tolls she intended to charge upon carriages of everydescription, and other property; and after making this enumeration, the sectionconcludes with the following proviso: 'That no toll should be received orcollected for the passage of any stage or coach conveying the United Statesmail, or horses bearing the same, or any wagon or carriage laden with theproperty of the United States, or any cavalry or other troops, arms or militarystores belonging to the same or to any of the states comprising this union, orany person or persons on duty in the military service of the United States, or of

the militia of any of the states.'

134We shall hereafter speak of the 15th section of this act, which has beensupposed 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 bythe state and accepted by Congress, is to be found in the 4th; the residue of theact containing nothing more than detailed regulations for the collection andapplication of the tolls.

135 At the time this compact was made, it was well known that the mail was alwaystransported by contractors, and that whenever it was conveyed in carriages, thevehicles belonged to them, and were their own private property, and not theproperty of the United States. It was equally well known that upon this road, aswell as many others, the postmaster-general, in his contracts, uniformlyrequired that the mail should be carried in a stage or coach capable ofaccommodating a certain number of passengers, the presence of the passengersbeing regarded as adding to the safety of the mail, and superseding thenecessity of any other guard.

136 This mode of transporting the mail must have been perfectly known to the statein 1831, when the agreement was made; and in providing for the exemption ofcarriages conveying the United States mail, both parties must have intended toexempt the vehicles usually employed in that service; and that carriagesbelonging 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. Thereason of this exemption is evident; for a toll charged upon the carriages of thecontractor would, in effect, be a charge upon the Post-office Department, sincethe contractor would be obliged to make provision for this expense whenbidding for the contract, and regulate his bid so as to cover it.

137 In the proposition made by Ohio, nothing was said of a toll on the passengers ina 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 thenumber of persons that may be travelling in it; and it is evident that it was atthat time supposed that the rates specified and agreed on would prove sufficientto keep the road in repair, and that the United States would always thereafterhave the free use of it, for mail-carriages of the usual kind, without any burdenupon them, direct or indirect.

138 If the expectations of the parties had been realized, and the tolls mentioned inthe 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 carriageswhich conveyed the mail.

139 In the case of Searight v. Stokes and others, we have already said, that with anagreement like this before us between the United States and a state, we mustlook at the relation in which the parties stood to one another, as well as to thesubject-matter of the contract, and the object which the high contracting partiesintended to attain; and we must expound it upon principles of justice, so as toaccomplish the purposes for which it was made, and not defeat their manifestintention, by a narrow and literal interpretation of its words. And regarding it inthis point of view, we think it very clear that no part of the burden of supportingthis road was intended to be levied upon the United States, but was to beobtained altogether from other sources; and that the relative position andprivileges of the mail-coaches in regard to tolls, as prescribed in the law, wereto be always afterwards maintained, unless a deficiency or superabundance ofrevenue should render it necessary to increase or diminish the rates fixed in thelaw. For if this were not the case, the whole detailed and particular provision inrelation to the things to be charged, and the rates to be imposed, as set forth inthe law of Ohio, and so cautiously recited in the act of Congress consenting tothe surrender of the road, would be nugatory and without an object. On theother hand, this mode of proceeding was the natural and proper one, where twosovereignties were contracting with each other by means of legislative action;and it was obviously adopted by the parties in this instance in order to show theterms proffered by Ohio, and assented to by Congress, and forms the conditionsof the compact between them, so far as their respective rights were concerned.

140 We proceed to apply these principles to the question before us. The law of thestate, and the order of its Board of Public Works, impose a toll upon every onetravelling in the mail-stage, while the passengers in every other vehicle areallowed to go free. If this can be done, it is manifest that the United States willderive no benefit from the compact, and so far from enjoying the privilege forwhich they stipulated, and for which they paid so heavily in the construction ofthe road, a large portion of the burden of repairs will be thrown upon them. Thisis strikingly illustrated by comparing the toll charged upon coaches similar tothose employed in conveying the mails, with the toll indirectly levied upon themail-stage, by a charge upon its passengers. According to the rates contained inthe 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 themail, it pays nothing on its passengers. This sum is therefore the whole amountof 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 althoughunder the order of the Board of Public Works, no toll is charged directly uponthe carriage, yet every passenger must pay ten cents at each gate, so that thecarriage of a mail-contractor, containing six passengers, pays nearly double asmuch as a like carriage owned by any one else with the same number. Andwhat still more strongly marks the disadvantages to which the United States aresubjected by this order of the board, these passengers may be persons in theservice of the United States, passing along the road in the execution of somepublic duty, for the order makes no exceptions in their favor. And although thistoll, in form, is laid upon the passengers and not upon the vehicle, the result isthe same; for in either case it is, in effect, a charge upon the proprietor of thecarriage, diminishing his profits in that portion of his business; and when thuslevelled exclusively at passengers in the mail-stage, it accomplishes indirectlywhat evidently cannot be done directly by a toll upon the carriage, and in itsconsequences must seriously affect the interests of the United States. For inbidding for a contract upon a road so much travelled as this, the bidder wouldundoubtedly be greatly influenced by the advantages which a contract wouldgive him in the conveyance of passengers, as his carriages, when carrying themail, are entitled to go free. But if they, and they alone, are to be subjected tothis burdensome and unequal toll, it is obvious that he must seek to reimbursehimself, by enlarging his demand upon the government. Indeed, if this systemof levying toll can be sustained, the mischief may not stop here; and it will bein the power of any one of the states through which the road passes so tograduate the tolls as to drive all passengers from the mail-stages into otherlines, and by that means compel the United States, contrary to their wishes, andcontrary to the public interest, to transport the mails in vehicles in which nopassenger would travel.2

141 Novertheless we do not mean to deny the right of the state to impose a toll uponpassengers in the mail-stages, provided, the power is exercised, in a manner andupon principles, consistent with the spirit and meaning of the argument bywhich the road was transferred to the care of the states. On the contrary, in thecase of Searight v. Stokes and others, we have already said that such a toll maybe lawfully collected. But as no toll on passengers had been proposed by thelaw of Pennsylvania, the opinion, on that occasion, is expressed in generalterms, as to the right; the case then under consideration, not calling upon thecourt to speak more particularly upon the subject. The Ohio law, however,brings the question directly before us, and makes it necessary to state morefully and precisely the opinion of the court.

142 The true meaning of the compact we understand to be this. The carriagescarrying 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 propertyof the United States and the persons employed in their service, as mentioned inthe proviso hereinbefore rected; and the road was to be kept in repair by therevenue derived from the tolls specified in the Ohio law, according to the ratesthere set forth, provided they should prove to be sufficient for the purpose. Notoll was at that time proposed upon passengers in any vehicle, and passengers inthe mail-stage therefore had no peculiar privilege in going free, and merelypassed along the road upon the same terms with those who were travelling inother carriages. And as the compact contains no stipulation for the exemptionof travellers in the mail-stages, the general government can demand noadvantages in their behalf, which are not extended to passengers in othervehicles. 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 theprivilege and advantages intended to be secured to the carriages conveying themail, over those granted to other vehicles, shall be preserved in substance andreality as well as in form; and that the passengers in the mail-stages shall not beselected 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.

143 If, therefore, the revenue from the road, according to the rates originally agreedon, was found to be inadequate, then the state had undoubtedly a right toincrease the rate on any thing before subject to toll; or might, if it was deemedmore advisable, leave the tolls as they stood, and charge in addition to them atoll on passengers. And if instead of selecting the persons travelling in the mail-coaches, and laying the burden exclusively upon them, all passengers invehicles of any kind had been equally charged, the real and substantialadvantages and privileges to which the United States are entitled under theagreement would have been preserved, and the equality in relation topassengers originally existing between the mail-coaches and other carriageswould 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 imposedequally upon passengers in every description of vehicle, that persons travellingin the mail-stages can be lawfully charged, without first obtaining the assent ofCongress.

144 The 15th section of the law of 1831 has been relied on in the argument, asreserving to the state the right to make any alteration it might afterwards thinkproper without regard to the interest of the general government. It is true thatthis section begins with a declaration that it shall be lawful for the GeneralAssembly at any future session, without the assent of Congress, to change,alter, or amend the act. But this clause evidently relates to the variousprovisions 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 nointerest in these details, and they were therefore properly retained in the handsof the state. And so in regard to the privilege of passing free on certainoccasions, given by the law, it is undoubtedly in the power of the state, if itthinks proper, to revoke it, since the exemption was a mere voluntary act,founded on no valuable consideration, but growing out of what was thensupposed to be a just and liberal policy, which the state could afford toexercise; but which it had the right to change whenever it was deemednecessary to do so. But a full and valuable consideration had been paid by theUnited States for the privileges reserved to them, and they were a part of thecontract which transferred the road to the care of the state. And this being thecase, the section in question cannot by any sound rule of construction beregarded as inconsistent with the contract contained in another part of the samelaw, and as placing the rights secured to one party entirely at the discretion andthe control of the other. The reservations of power to the state, evidently relateto subjects in which the general government had no separate interest; and theywould have been altogether unnecessary and useless if the state had notconsidered the preceding part of the law as the proffer of a compact which wasto be obligatory upon it, if assented to by Congress.

145 There is a clause in the law of 1837, which would appear to distinguish betweenthe mail-stages, in relation to toll, where more than one mail passed along theroad on the same day. Upon this point it may be proper to say, that, in theopinion of the court, it rests altogether in the discretion of the postmaster-general, where the power has been conferred on him by Congress, to determineat what hours the mail shall leave particular places and arrive at others; and todetermine whether it shall leave the same place only once a day or morefrequently. Upon this point his decision is absolute, when the discretion iscommitted to him by the laws of the United States, and cannot be controlled bya state or by the courts. And in the case of Searight v. Stokes and others, whenthe court speak of abuses by the contractors in the number of carriagesemployed, and of the right of the court to enforce the compact, it will be seenby 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 dividedamong a number of carriages in order to evade the payment of toll; and theopinion expressed on that occasion by the court does not apply to stages leavingthe post-office with mails at different hours, in obedience to the orders of thedepartment. In the latter case it is immaterial whether the mails are light orheavy. The postmaster-general is, upon this subject, the proper and only judgeof what the public interest and convenience requires, and his decision cannot bequestioned by the courts.

146 The provision upon this subject, however, appears to have been intended toguard against abuses by contractors, rather than to interfere with the powers ofthe postmaster-general. And in regard to the toll imposed, as hereinbeforementioned, if it is necessary for the support of the road, it is in the power of theparties to the compact to modify it at their pleasure, and to give the state thepower it has exercised. But according to the terms of the contract, as it wasoriginally made, and still stands, the toll upon passengers in the mail-stages,laid in the manner hereinbefore stated, cannot lawfully be demanded, and thejudgment of the state court must therefore be reversed.

147 Mr. Justice DANIEL.

148 From the decision just pronounced on behalf of the majority of the court, I amconstrained to dissent. Upon the principles involved in the decision, so far asthey have been assumed as the foundation of rights in the federal government,or in the postmaster-general as its agent or representative, independently of anyagreement with the state of Ohio, my opinion has already been declared. Thatopinion 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 thisoccasion to repeat it. With respect to the compact which is said to have beenmade between the federal government and the state of Ohio, by the act ofCongress relinquishing the control of the Cumberland road to the state, and bythe act of the Ohio legislature, assuming the control and management of thatroad, it has not to my mind been shown that this compact has in any respectbeen violated by the state. A cursory view of the legislation, both by the stateand by Congress, will establish the very converse of any such inference. Thatthe several proceedings on the part of the state steer entirely clear of collisionwith the letter of that compact, has not, so far as I have heard, been evendisputed. The statute of Ohio, passed on the 4th of February, 1831, after severalprovisions—1st, investing the governor of the state with power to take underhis care that portion of the Cumberland road comprised within the limits of thestate; 2dly, prescribing the rates of toll to be collected; 3dly, laying downregulations for the police of the road; contains in the second proviso of the 4thsection the following enactment: 'Provided also, that no toll shall be received orcollected 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 ofthe United States, or any cavalry or other troops, arms or military storesbelonging to the same, or to any of the states of the union; or any person orpersons on duty in the military service of the United States, &c., &c.' The 15thsection of the same law is in the following words: 'That it shall be lawful forthe General Assembly at any future session thereof, without the assent ofCongress, 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 tollhereby established, below or above a sum necessary to defray the expensesincident to the preservation and repair of the said road, to the erection of gatesand toll-houses thereon, and for the payment of the fees or salaries of thesuperintendent, the collectors of tolls, and such other agents as may benecessarily employed in the preservation and repair of the same, according tothe true intent and meaning 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 thelaw 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 federalgovernments, which amounts to any thing in the nature of an agreement orcompact between them in reference to the Cumberland road. Let us now inquirewhat it is that, by reasonable and proper construction, these laws import? And itshould, in their examination, ever be borne in mind, that whatsoever the law ofOhio has ordained in reference to its subject matter; whatever rights or powers ithas claimed for the state in regard to it, the act of Congress has unconditionallyrecognized the whole. The second proviso of the 4th section, already quoted,contains no stipulation that ordinary travellers or passengers, or any othersindeed, or any descriptions of property, save those expressly enumerated in theproviso, shall pass upon the road free of toll. It concedes to the federalgovernment that stages carrying the mail, i. e. the carriages and the horsesnecessary for their use, and the mail itself, should not pay toll; but with respectto private travellers, and to every thing within or without those carriages, thelaw is entirely silent. By what correct implication, then, can the power of thestate to levy tolls on travellers in such carriages be taken away. I can conceiveof no implication tending to such a result, which would not obviously doviolence to the language of the statute, as it would be every correct rule ofconstruction, and to every intendment consistent with the natural and plainobjects of the law. The fact that the state has exacted tolls on passengers in thestages carrying the mails, only beyond a certain number of carriages soemployed, 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; forhaving the power absolutely to exact tolls of all travellers on the road notexempted by the proviso, this power carried with it, by every sound rule oflogic, the right to discriminate between the subjects of her power. She had thena perfect right to declare that travellers in specified carriages carrying the mailshould pass free of toll, and that those transported in other vehicles, althoughbearing the mail, likewise should be subjected to the payment of toll. Such aregulation the state had the power to enact, had it been the dictate of merecaprice. A correct apprehension, however, of her policy and interests inreference to this road, and in reference to the accommodation of the public, willdevelop a more enlarged and more equitable motive for the measures adoptedby the state, showing those measures to have been produced by the force of

supervening circumstances. It cannot be denied, that in assuming themanagement of this road, the purpose of the state was to maintain and preserveit as a commodious highway. By the title of the law passed for its assumption,viz., 'An act for the preservation and repair of the United States road,' as well asby every clause and provision of that law, this object is clearly evinced. It isequally undeniable, that the means in contemplation for the accomplishment ofthis object were the usual and natural means by which artificial highways aresupported, viz.: the tolls collectable on travellers and on property transportedupon it. The concession to the federal government of the free passage of aportion of its mails over this road, and of the vehicles in which they might becarried, was an act of fairness and liberality which should not be made thepretext for abuse and monopoly, such as must, if permitted, dry up the sourcewhence the means of maintaining the road are to be derived, and which wouldoperate for the exclusive advantage of the favorites of such monopoly, and forthe serious injury of the public. To guard against consequences like these, thepower 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 adoptingthe former law; and it can as little be doubted, that, in the practical experienceof those consequences, and in the intention of applying a remedy for them, thelaw of Ohio of March 9th, 1838, and the order of the Board of Public Works ofthe same state, had their origin.

149 But it is argued that the exaction of tolls on travellers in stages carrying themails, 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 the same degree animpediment to the conveyance of the mails. It is a sufficient reply to such anargument to remark, that neither the law of Ohio nor the act of Congressadopting that law, stipulates any exemption from tolls on travellers, but theexemption 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 aterm or condition to a contract completed. This argument is therefore utterlywithout force, even if the effects it seeks to deduce could be demonstrated. It isfallacious too in another respect. The monopoly in support of which it isadduced, by enabling the mail contractor to drive off all competition, whilst itputs it in his power to withhold the tolls by payment of which the road wouldbe supported, enables him to practise the very extortions upon the governmentwhich fair competition would be the surest means of preventing. But conceding,for the moment, that a denial to the contractor of the privilege now contendedfor, might enhance the price of transporting the mails, the question still veryproperly arises, whether this effect (were the language of the law evendoubtful) would justify the extension to him of such a privilege? A just view of

the legislation of both the state and federal governments, and of the obviouspurposes of that legislation, must compel a negative answer to this question.The purposes designed by this legislation were the preservation and repair ofthe National road. Such are the objects announced, not only in the titles of thelaws themselves, but provided for in all their enacting sections; and the quomodo declared by these enactments is the levying of tolls. Is it then reasonableor logical, or rather is it not inconsistent and contradictory, to attempt to deducefrom them conclusions which fall not within their terms, but which go to defeatevery end which must have been within the contemplation of the parties; forwhich indeed these enactments all profess to have been made. Is not thisattempt in violation of all rules for the construction either of statutes orcontracts, which always preserve the main and obvious intentions of legislatorsor of contracting parties, to the exclusion of minor though seeminglycontradictory considerations? But the language of these laws is by no meansequivocal. Except for the exemption contained in the second proviso of the 4thsection of the Ohio statute of 1831, all mails and the carriages in which they aretransported, the troops, arms, and property of the United States of everydescription, would have been subject to the payment of tolls; and the exemptioncan be extended no father than the plain and natural import of the language ofthat proviso will justify.

150 Again, it has been said, that the exaction of tolls from travellers in the mail-stages would be a violation of the contract, because by such a demand travellerswould be excluded from those stages, and that the safety of the mails would beendangered by this exclusion; it being assumed by this argument that thetravellers are to constitute a guard to the mails. To this seemingly strange andfar-fetched argument, it might be sufficient to answer, as was done to theformer, that no stipulation for the transportation of such a guard, (if by anyviolence to language ordinary casual wayfarers could be so denominated,) iscontained in the contract; and that the attempt thus to introduce any suchstipulation or engraft it upon that contract, is a palpable and unwarrantableinterpolation upon its terms and its objects. In the next place, the propoundersof this argument may be challenged to show either the duty or the willingnessof such travellers, to take upon themselves the hazards, the trouble, or theresponsibilities of guarding the United States mails. With equal cogency maythose who thus reason be called upon to prove, that amongst the promiscuousmultitudes who travel in stages, there may not be comprised those who roamthe country with the view of committing depredations, and from whose designsthe safety of the mails may be most endangered.

151 Upon a full consideration of this case, I am brought to conclude, that the acts ofthe legislature of Ohio, subsequent in date to the 2d of March, 1831, and the

CITED. Passenger Cases, 7 How., 521.

proceedings of the Board of Public Works of that state, founded upon thosestatutes, are in violation of no principle or right guarantied by the Constitutionof the United States, nor of any acts of Congress passed in pursuance thereof;nor of any contract at any time existing between the state of Ohio and thefederal government. I am farther of opinion, that the aforesaid laws of Ohiowere on the contrary designed, and are of a tendency, fairly and justly, todistribute the tolls collectible within her limits, on the road in question, so as tomake them properly subservient to the views of the federal government and ofthe government of Ohio, at the times of passing of the state law of February4th, 1831, and the act of Congress of the 2d of March, 1831; and in conformitywith the express language of those laws; and to prevent unwarrantablemonopoly, and serious if not fatal detriment to the road. I think that the decisionof the Supreme Court of Ohio, being a correct exposition of the laws designedto effect these important objects, ought therefore to be affirmed.

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