Opinion
(June Term, 1834.)
A carriage used for the transportation of the mail and of passengers is a pleasure carriage within the act of 1824 (Rev., ch. 1258), incorporating the Buncombe Turnpike Company, and subject to a toll of $2.50.
ASSUMPSIT, "in which the plaintiffs declared against the defendant as the contractor or owner of the mail stage, for tolls alleged to be due for the passage of the said stage along the Turnpike Road. But the court, Strange, J., being of opinion that the plaintiffs were not authorized by the terms of their charter to charge any toll for mail stages, and there being no evidence of any special agreement, nonsuited the plaintiffs, who appealed."
The Attorney-General for the plaintiffs.
No counsel appeared for the defendants.
The following is a copy of that section of the act of incorporation which authorizes the collection of tolls:
"And it shall and may be lawful for the president and directors, during the said term, to demand and receive at some convenient toll gates, to be by them erected, the following (464) tolls, to wit: On every four-wheel carriage, two dollars and fifty cents; on every gig or sulkey, one dollar; on every six-horse wagon, two dollars and fifty cents; on every four-horse road wagon, two dollars; on every three or two ditto, one dollar and fifty cents; on every peddler's cart, one dollar and fifty cents; on every road cart, fifty cents."
This is a case so shortly and imperfectly stated, that we are not certain that the only point presented is really the only one which it was intended to present. As the record speaks, the single question is, whether by the terms of the charter, the plaintiffs can recover in this action a toll on a carriage belonging to the defendant which is called a mail stage.
There might possibly be a question whether a carriage engaged in the service of transporting the mail is not privileged. Although not made on the trial, if it were clear for the defendant, it would be useless to send the case back to a new trial, and the judgment might be affirmed as it ought to be on the whole record. Supposing, however, that the United States can use any road established by Congress as a post road, yet the use by persons employed in a particular civil service must be deemed to be intended to be on the terms prescribed to all persons, unless the law under which it is performed declares the contrary. We have found no act of Congress exempting persons or carriages engaged in the business of the post office from the payment of tolls for passing ferries, bridges or roads. As such tolls are granted as the price of constructing and repairing (465) those public accommodations, and are necessary for those purposes, and to no establishment are such facilities more indispensable than to the post office itself, it is probable that no such act ever has been or ever will be passed. Without a statute, no exemption can be inferred or allowed. It may be true that the progress of the mail cannot be arrested by distraining the carriage or horses for the tolls, although private property. That, however, only affects that particular remedy. The question recurs, whether the owner, being a private person and transporting the mail under contract, be not liable for the tolls, to be recovered by action, like any other debt contracted by him. Upon that we see no reason to doubt until the contrary, if it can be, shall have been enacted. In truth, however, the Court does not consider that question open upon the record. It does not appear, even, that the defendant was transporting the mail, or was otherwise actually engaged in the public service, at the times of passing the road; and the decision was confined to the other point, namely, the construction of the statute of this State. Upon that, this Court does not concur with his Honor, and must therefore award a new trial.
The act of incorporation gives a toll on every four-wheel carriage of pleasure, of $2.50; on every gig and sulkey, on every six-horse wagon, four-house wagon, two-hourse [two-horse] wagon, peddler's cart and road cart, the several sums mentioned in it. In the enumeration, "mail stages," or any other carriage transporting the mail, are not included by specific name and as a distinct class of vehicles. On this ground the decision seems to have been founded.
The construction is very strict, and can only be sustained by regarding the road as primarily a public highway, and the grant of tolls as an invasion of the prior and common right of the citizen. This seems to us not to be the proper principle of construction. It is true, the road is a highway, but not a common and free highway. It was constructed by the plaintiffs at their own expense, and is to be kept in repair by them for a long period under heavy penalties. As a compensation for their services, and as a reimbursement of their (466) expenditures, the tolls are granted. It is also true that only such tolls can be exacted as are granted. But in ascertaining the extent of the grant, the words are to receive a fair interpretation, according to the meaning of the Legislature, and the sense in which they are commonly understood. It is not to be presumed that passage to any person or thing was intended to be toll free, unless either there be a special exception, or they cannot reasonably be brought within the meaning of general terms descriptive of the subjects made liable to tolls. The presumption, especially when only general terms are used, is the other way — that everything which those terms will include shall pay the toll. The owners of the road have a fair right to remuneration from all who derive a benefit from their labor. Besides, by another section of this act, the annual profit is limited, so that the exemption of particular persons may operate as a burden on the rest of the community, which is not to be favored or implied.
Here only a very general description is found: carriages of pleasure, for instance, embrace a great variety of kinds known by different names. If the vehicle in question be of the character of any of those mentioned in the act as four-wheeled carriages of pleasure, gigs, sulkies, or any of the several sorts of wagons or carts, it is, in our opinion, within the act, although the Legislature did not descend so far into particulars as to call it a stage or a mail stage.
The case does not set forth its construction as to the number of wheels, or as to its adaptation to such uses as contradistinguish a carriage of pleasure from one of burthen, so as to enable us to determine the particular toll chargeable on it. Indeed, it does not seem that the plaintiffs reached that part of their case, as the court, as we understand, ruled that whatever might be the construction, the case was for the defendant, because the act did not expressly mention a mail stage. If it be included among and under any of the terms used according to the true construction of the act, the judgment is (467) erroneous. We think it certain that it must come within one or other of the descriptions, although for the reasons stated we cannot tell which. If a "stage" or "mail stage" had been used, it would not have been a proper term, for it is not descriptive of any species of carriage, but of a particular use and mode of traveling of every species. A stage coach or stage wagon, does not mean a particular kind of coach or wagon, but that the coach or wagon of any kind journeys at regular periods from one point, post or stage, to another. We cannot give our opinion conclusively as to the character of the vehicle in question, but as it may enable the parties to conclude their controversy by another trial below, without again bringing the case here, we consider it our duty to express what we clearly think is the construction of the charter. Under the terms of the statute the vehicles are to be understood, as those on the one hand, which are of the construction ordinary and proper, and which are commonly used for the transportation of produce, merchandise, and other heavy burthens on roads and farms; and on the other, those used for the transportation of persons and their traveling baggage, and constructed with a view to such transportation in a speedy and comfortable manner, after the general form and workmanship bestowed on carriages in which persons are usually transported. From our knowledge of the carriages commonly employed as mail coaches, under contracts, including the transportation both of the mail and passengers, we should not doubt that this vehicle is subject to the toll as a carriage of pleasure.
PER CURIAM. Judgment reversed.
(468)