Searight v. Stokes/Dissent McLean

Mr. Justice McLEAN.

I dissent from the opinion of the court. And as the case involves high principles and, to some extent, the action and powers of a sovereign state, I will express my opinion.

This was an amicable action to try whether the defendants, who are contractors for the transportation of the mail on the Cumberland road, are liable, under the laws of Pennsylvania, to pay toll for stages in which the mail of the United States is conveyed.

This road was constructed by the federal government through the state of Pennsylvania, with its consent. Whether this power was thus constitutionally exercised, is an inquiry not necessarily involved in the decision of this case. The road was made, and for some years it was occasionally repaired by appropriations from the treasury of the United States. These appropriations were made with reluctance at all times, and sometimes were defeated. This, as a permanent system of keeping the road in repair, was, of necessity, abandoned; and, with the assent of Pennsylvania, Congress passed a bill to construct toll-gates and impose a tax on those who used the road. This bill was vetoed by the President, on the ground that Congress had no constitutional power to pass it. The plan was then adopted to cede the road, on certain conditions, to the states through which it had been established.

On the 4th of April, 1831, Pennsylvania passed 'An act for the preservation of the Cumberland road.'

By the 1st section it was provided, that as soon as the consent of the government of the United States shall have been obtained, certain commissioners, who were named, were to be appointed, whose duties in regard to the road were specially defined. The 2d section enacted, that to keep so much of the road in repair as lies in the state of Pennsylvania, and pay the expense of collection, &c., the commissioners should cause six toll-gates to be erected, and certain rates of toll were established. To this section there was a proviso, 'that no toll shall be received or collected for the passage of any wagon or carriage laden with the property of the United States, or any cannon or military stores belonging to the United States or to any of the states composing the union.'

By the 4th section the tolls were to be applied, after paying expenses of collection, &c., to the repairs of the road, the commissioners having power to increase them, provided they shall not exceed the rates of toll on the Harrisburg and Pittsburg road. The last section provided that the toll should not be altered below or above a sum necessary to defray the expenses incident to the preservation and repair of said road. &c., and also, 'that no change, alteration, or amendment shall ever be adopted, that will in any wise defeat or affect the true intent and meaning of this act.'

By the 10th section of the above act it was declared to have no effect until Congress should assent to the same, 'and until so much of the said road as passes through the state of Pennsylvania be first put in a good state of repair, and an appropriation made by Congress for erecting toll-houses and toll-gates thereon, to be expended under the authority of the commissioners appointed by this act.'

By their act of the 24th of June, 1834, Congress appropriated $300,000 to repair the Cumberland road east of the Ohio river, which referred to the above act of Pennsylvania, and also to similar acts passed by Virginia and Maryland. And in the 4th section of the act it was provided, 'that as soon as the sum by this act appropriated, or so much thereof as is necessary, shall be expended in the repair of said road agreeably to the provisions of this act, the same shall be surrendered to the states respectively through which said road passes; and the United States shall not thereafter be subject to any expense for repairing said road.' This surrender of the road was accepted by Pennsylvania, by an act of the 1st of April, 1835.

The above acts constitute the compact between the state of Pennsylvania and the union, in regard to the surrender of this road. The nature and extent of this compact are now to be considered.

As before remarked, the constitutional power of Congress to construct this road is not necessarily involved in this decision. By the act of Congree of the 30th of April, 1802, to authorize the people of Ohio to 'form a constitution and state government,' among other propositions for the acceptance of the state, it was proposed that 'five per cent. of the net proceeds of the lands lying within the said state, sold by Congress, should be applied to the laying out and making public roads leading from the navigable waters falling into the Atlantic, to the Ohio, to the said state, and through the same; such roads to be laid under the authority of Congress, with the consent of the several states through which the roads shall pass: provided the state shall agree not to tax land sold by the government until after the expiration of five years from the time of such sale.'

By the 2d section of the act of the 3d March, 1803, three per cent. of the above fund was placed at the disposition of the state, to be 'applied to the laying out, opening, and making roads, within the state.'

The above conditions, having been accepted by Ohio, constituted the compact under which the Cumberland road was laid out and constructed by the authority of Congress. And of this work it may be said, however great has been the expenditure through the inexperience or unfaithfulness of publie agents, that no public work has been so diffusive in its benefits to the country. It opened a new avenue of commerce between the eastern and western states. Since its completion, and while it was kept in repair, the annual transportation of goods and travel on it saved an expense equal to no inconsiderable part of the cost of the road. But its cession to the states through which it was established was found necessary to raise, by tolls, an annual revenue for its repair.

Whatever expenditure was incurred in the construction of this road beyond the two per cent. reserved by the compact with Ohio, was amply repaid by the beneficial results of the work; and this was the main object of Congress. It was a munificent object, and worthy of the legislature of a great nation.

The road was surrendered to Pennsylvania and the other states through which it had been constructed. But what was ceded to Pennsylvania? All the right of the United States which was not reserved by the compact of cession. This right may be supposed to arise from the compact with Ohio; the consent of Pennsylvania to the construction of the road, and the expense of its construction, including the sums paid to individuals for the right of way. These, and whatever jurisdiction over the road, if any, might be exercised by the United States, were surrendered to Pennsylvania. The road then must be considered as much within the jurisdiction and control of Pennsylvania, excepting the rights reserved in the compact, as if it had been constructed by the funds of that state. It is, therefore, important to ascertain the extent of the rights reserved by the United States.

In the closing paragraph of the 2d section of the act of 1831, above cited, it is provided, 'that no toll shall be received or collected for the passage of any wagon or carriage laden with the property of the United States, or any cannon or military stores belonging to the United States, or to any of the states composing this union.' In addition to this, there were certain limitations imposed, as to the amount of tolls, on the state of Pennsylvania, which need not now be considered.

Some light may be cast on the import of the above reservation by a reference to somewhat similar compacts made in regard to the same subject between the United States and the states of Ohio, Maryland, and Virginia. The Ohio act of the 2d of March, 1831, provides, in the 4th section, 'that no toll shall be received or collected for the passage of any stage or coach conveying the United States mail, or horses bearing the same, or any wagon or carriage laden with the property of the United States, or any cavalry or other troops, arms, or military stores, belonging to the same, or to any of the states comprising this union, or any person or persons on duty in the military service of the United States, or of the militia of any of the states.' The 4th section of the Maryland act of the 23d of January, 1832, provided, 'that no tolls shall be received or collected for the passage of any wagon or carriage laden with the property of the United States, or any cannon or military stores belonging to the United States, or to any of the states composing this union.' In the Virginia act of the 7th of February, 1832, it is provided, 'that no toll shall be received or collected for the passage of any stage or coach conveying the United States mail, or horses bearing the same, or any wagon or carriage laden with property of the United States, or any cavalry or other troops, army of military stores, belonging to the same, or to any of the states comprising this union, or any person or persons on duty in the military service of the United States, or of the militia of any of the states.'

The reservations in the Pennsylvania and Maryland acts are the same, and differ materially from those contained in the acts of Ohio and Virginia. In the latter acts the mail-stage is excepted, but not in the former. Pennsylvania and Maryland exempt from toll 'any wagon or earriage laden with the property of the United States;' but the same exemption is contained in the Ohio and Virginia laws in addition to that of the mail-stage. Now, can the reservations in these respective acts be construed to mean the same thing? Is there no difference between the acts of Ohio and Pennsylvania? Their language is different, and must not their meaning be sought from the words in the respective acts? They are separate and distinct compacts. The Ohio law was first enacted, and was, probably, before the legislature of Pennsylvania when their act was passed. But whether this be the fact or not, they were both sanctioned by Congress; and the question is, whether both compacts are substantially the same? That the legislatures did not mean the same thing seems to me to be clear of all doubt. Did Congress, in acceding to these acts, consider that they were of the same import? Such a presumption cannot be sustained without doing violence to the language of the respective acts.

In both acts wagons laden with the property of the United States are exempted. In the Ohio act the mail-stage is exempted from toll, but not in the act of Pennsylvania. Now, is the mail-stage exempted from toll by both acts or by neither? Is not either of these positions equally unsustain able? The exemption of the mail-stage must be struck out of the Ohio law to sustain one of these positions, and to sustain the other it must be inserted in the act of Pennsylvania. Does not the only difference consist in striking out in the one case and inserting in the other? This must be admitted unless the words, 'wagon or carriage laden with the property of the United States,' mean one thing in the Ohio law, and quite a different thing in the law of Pennsylvania. These words have a sensible and obvious application in both acts, without including the mail-stage. In the Ohio law the words 'no toll shall be received or collected for the passage of any stage or coach conveying the United States mail,' cannot, by any sound construction, be considered as surplusage; and yet they must to so considered if the Pennsylvania act exempt the mail-stage.

When one speaks of transporting the property of the United States, the meaning of the terms 'property of the United States,' is never mistaken. They mean munitions of war, provisions purchased for the support of the army, and any other property purchased for the publie revenue. They do not mean the mail of the United States. A wagon laden with property is understood to be a wagon used for the transportation of property, in the ordinary sense of such terms. A wagon or carriage being laden is understood to have a full or usual load. The mail-stage of the United States is never spoken of in this sense. It is used for the transportation of passengers as well as the mail, and in this view it is undoubtedly considered when spoken of in conversation, and especially when referred to in a legislative act. In no sense can the mail-stage be considered a 'carriage laden with the property of the United States.' The same exception applies to a wagon or carriage laden with the property of a state. Now no one can doubt the meaning of the exception thus applied. And can a different meaning be given to the same words when applied to the United States? Certainly not, unless the mail can be denominated the property of the United States.

The mail of the United States is not the property of the United States. What constitutes the mail? Not the leathern bag, but its contents. A stage load of mail-bags could not be called the mail. They might be denominated the property of the United States, but not the mail. The mail consists of packets of letters made up with post-bills, and directed to certain post-offices for distribution or delivery; and whether these be conveyed in a bag or out of it, they are equally the mail; but no bag without them is or can be called the mail. Can these packets be said to be the property of the United States? The letters and their contents belong to individuals. No officer in the government can abstract a letter form the mail, not directed to him, whithout incurring the penalty of the law. And can these letters or mailed pamphlets or newspapers be called the property of the United States? They in no sense belong to the United States, and are never so denominated. If a letter be stolen from the mail which contains a bank-note, the property in the note is laid in the person who wrote the letter in which the note is enclosed. From these views I am brought to the conclusion that neither party to the compact under consideration could have understood 'a wagon or carriage laden with the property of the United States,' as including the mail-stage of the United States.

Are there any considerations connected with this subject which lead to a different conclusion from that stated. The fact that four distinct compacts were entered into with four states to keep this road in repair, cannot have this effect. We must judge of the intention of the parties to the compact by their language. I know of no other rule of construction. Two of these compacts exempt the mail-stage from toll, and two of them do not exempt it. Now, if the same construction, in this respect, must be given to all of them, which of the alternatives shall be adopted? Shall the mail-stage be exempted by all of them, or not exempted by any of them?

What effect can the expenditures of the United States, in the construction of this road, have upon this question? In my judgment, none whatever. The reservation must be construed by its terms, and not by looking behind it. The federal government has been amply repaid for the expenditures in the construction of this road, great and wasteful as they may have been, by the resulting benefits to the nation. It is now the road of Pennsylvania, subject only to the terms of the compact. In the act surrendering this road to the states respectively, through which it passes, Congress say, 'and the United States shall not thereafter be subject to any expense for repairing said road.' To get clear of this expense was the object of the cession of it to the states. But does this affect the question under consideration? The repairs of the road are provided for, by the tolls which the state of Pennsylvania is authorized to impose. And this is the meaning of the above provision. It is supposed, that the exaction of toll on the mail-stage would conflict with that provision. But how does it conflict with it? The toll on the mail-stage is not paid by the government, but by the contractor. And whether this toll will increase the price paid by the government for the transportation of the mail, is a matter that cannot be determined. Competition is invited and bids are made for this service, and the price to be paid depends upon contingent circumstances. The toll would be paid, in part, if not in whole, by a small increase of price for the transportation of passengers. The profits of the contractor might, perhaps, be some-what lessened by the toll, or it might increase, somewhat, the cost of conveying the mail. But this is indirect and contingent; so that in no sense can it be considered as repugnant to the above provision. 'The United States are not to be subject to any expense for repairing this road;' and they are not, in the sense of the law, should the Post-office Department have to pay, under the contingencies named, a part of the toll stated. Whether it does pay it or not, under future contracts, cannot be known; and whatever expense it may pay, will be for the use, and not the repair, of the road.

The act of the 13th of June, 1836, which is supposed to be in violation of the compact, I will now consider. That act provides, 'That all wagons, carriages, or other modes of conveyance, passing upon that part of the Cumberland road which passes through Pennsylvania, carrying goods, cannon, or military stores belonging to the United States, or to any individual state of the union, which are excepted from the payment of toll by the second section of an act passed the 4th of April, 1831, shall extend only so far as to relieve such wagons, carriages, and other modes of conveyance, from the payment of toll to the proportional amount of such goods so carried belonging to the United States, or to any of the individual states of the union; and that in all cases of wagons, carriages, stages, or other modes of conveyance, carrying the United States mail, with passengers or goods, such wagon, stage, or other mode of conveyance, shall pay half-toll upon such modes of conveyance.'

By the act of 1831, 'every chariot, coach, coachee, stage, wagon, phaeton, or chaise, with two horses and four wheels, were to be charged at each gate twelve cents; for either of the carriages last mentioned, with four horses, eithteen cents.' Is the act of 1836, which imposes half-toll on 'the mail-stage, with passengers or goods,' repugnant to the above provision? I think it is not, in any respect.

If the mail be not the property of the United States, then the stage in which it is conveyed is not within the exception of the act of 1831, and it is liable to pay toll. That only which is within the exception is exempted. That the mail is in no sense the property of the United States, and was not so understood by the parties to the compact, has already been shown. It follows, therefore, that a law of Pennsylvania. imposing on such stage a half or full rate of toll, is no violation of the compact.

But, if the mail-stage were placed on a footing with a wagon or carriage laden with the property of the United States, is the act of 1836, requiring it to pay toll, a violation of the compact? I think it is not. A wagon or carriage laden with the property of the United States, means a wagon or carriage having, as before remarked, a full or usual load. Such a vehicle is exempted from toll by the act of 1831. But suppose such wagon or carriage should have half its load of the property of the United States, and the other half of the property of individuals, for which the ordinary price for transportation was paid; is such a wagon, thus laden, exempted from toll? Surely it is not. An exemption under such circumstances would be a fraud upon the compact. It should be required to pay half-toll, and this is what the law of Pennsylvania requires. The mail-stage by that law is only half-toll, when it conveys passengers with the mail. There is, then, no legal objection to the exaction of this toll. It is in every point of view just, and within the spirit of the compact.

In the argument for the United States, the broad ground was assumed, that no state had the power to impose a toll on a stage used for the transportation of the mail. That it is a means of the federal government to carry into effect its constitutional powers, and, consequently, is not a subject of state taxation. To sustain this position the cases of McCulloch v. The State of Maryland, 4 Wheat., 316, and Dobbins v. The Commissioners of Erie County, 16 Pet., 435, were cited.

In the first case, this court held, 'that a state government had no right to tax any of the constitutional means employed by the government of the union, to execute its constitutional powers.' And the Bank of the United States was held to be a means of the government. In the second case, under a general law of Pennsylvania imposing a tax on all officers, a tax was assessed on the office held by the plaintiff, as captain of a revenue-cutter of the United States, and this court held that such law, so far as it affected such an officer, was unconstitutional and void. The court say, 'there is a concurrent right of legislation in the states and the United States, except as both are restrained by the Constitution of the United States. Both are restrained by express prohibitions in the Constitution; and the states by such as are reciprocally implied when the exercise of a right by a state conflicts with the perfect execution of another sovereign power delegated to the United States. That occurs when taxation by a state acts upon the instruments and emoluments and persons which the United States may use and employ as necessary and proper means to execute their sovereign power.'

Neither of these cases reach or affect the principle involved in the case under consideration. The officer of the United States was considered as a means or instrument of the government, and, therefore, could not be taxed by the state as an officer. To make that case the same in principle as the one before us, the officer must claim exemption from toll as a means of the government, in passing over a toll-bridge or turnpike-road constructed by a state, or by an association of individuals under a state law. The principle of the other case is equally inapplicable. Maryland taxed the franchise of the Bank of the United States, and if the law establishing that bank were constitutional, the franchise was no more liable to taxation by a state than rights and privileges conferred on one or more individuals, under any law of the union. With the same propriety a judge of the United States might be subjected to a tax by a state for the exercise of his judicial functions. And so of every other officer and public agent. But the court held that the stock in the bank owned by a citizen might be taxed.

A toll exacted for the passage over a bridge or on a turnpike-road is not, strictly speaking, a tax. It is a compensation for a benefit conferred. Money has been expended in the construction of the road or bridge, which adds greatly to the comforts and facilities of traveling, and on this ground compensation is demanded. Now, can the United States claim the right to use such road or bridge free from toll? Can they place locomotives on the railroads of the states or of companies, and use them by virtue of their sovereignty? Such acts would appropriate private property for public purposes, with-out compensation; and this the Constitution of the union prohibits.

It is said, in the argument, that as well might a revenuecutter be taxed by a state as to impose a toll on the stage which conveys the mail. The revenue-cutter plies on the thoroughfare of nations or of the state, which is open to all vessels. But the stage passes over an artificial structure of great expense, which is only common to all who pay for its use a reasonable compensation. There can be no difficulty on this point. At no time, it is believed, has the Post-office Department asserted the right to use the turnpike-roads of a state, in the transmission of the mail, free from toll.

Pennsylvania stands pledged to keep the road in repair, by the use of the means stipulated in the compact. And she has bound herself, 'that no change, alteration, or amendment shall ever be adopted that will in any wise defeat or affect the true intent and meaning of the act of 1831.' In my judgment, that state has in no respect violated the compact by the act of 1836. If the mail-stage can be included in the exemption by the terms, 'wagon or carriage laden with the property of the United States,' still the half-toll on such stage, when it contains passengers, is within the compact. But, as has been shown, the mail-stage is not included in the exemption, and, consequently, it was liable to be charged with full toll. The state, therefore, instead of exceeding its powers under the compact, has not yet exercised them to the extent which the act of 1831 authorizes.