PRELECTION,

The following judicial opinion on important Constitutional questions; and the following Briefs in the Supreme Court of the United States, and petition for a re-hearing in the Appellate Court of Kentucky, contain matter deemed useful and rather peculiar; and are therefore herein re-published for more general circulation.

M. W. DICKEY, against The Maysville, Washington, Paris and Lexington

Turnpike Road Company.

[Messrs. Robinson and Johnson for appellant: Mr. Owsley for appellee.]

FROM THE CIRCUIT COURT OF MASON COUNTY.

Chief-Justice Robertson Delivered the Opinion of the Court.

THE only question presented for considera- Having been constructed by an association tion in this case, is whether Milus W. Dickey, of individuals incorporated into a private body as the contractor for carrying the United States' politic by an act of the Kentucky Legislature, Mail from Maysville to Lexington, in this which gave the corporation the right to charge State, has the right, in execution of his en- tolls according to a prescribed scale, in congagement, to transport the mail in stage sideration of the appropriation of its own funds coaches on the turnpike road between those to the construction of the road for the public termini, without paying, to the use of the benefit-the turnpike road from Maysville to Turnpike Company, the rate of tollage exac- Lexington should be deemed private property, ted by it, under the authority of its charter, so far as the value of the franchise and the from other persons for the transit of their hor-right to preseve it, as conferred by the charter ses and carriages.

wherever Congress should elect to carry it, no more nor otherwise than it obstructed or impaired the right of every freeman to travel on any public way he might choose thus to use.

in the nature of a contract, may be concerned.. All national power should belong exclusive- And therefore, the public-whether it be Kenly to the general or national government. tucky or the United States-can have no conAnd, as nothing can be more national than stitutional right to use the road without conthe regular and certain diffusion of intelligence tributing, to its reparation and preservation, among the people of the United States through either a just compensation for the use, or the the medium of the public mail, therefore, the rate of tollage prescribed by the corporation power to establish post offices and post under the sanction of its charter. By authorroads" is expressly delegated by the federalizing the company to exact a fixed compensaconstitution to the Congress of the United for the use of the road, the charter interfered States; and that power being necessarily ex-with or impaired the power to carry the mail clusive, plenary, and supreme, no State can constitutionally do, or authorise to be done, any act which may frustrate, counteract, or impair, the proper and effectual exercise of it by national authority. From these axiomatic. truths it follows, as a plain corollary, that the general government has the unquestionable right to transport the national mail whenever and wherever the National Congress, in the constitutional exercise of its delegated powers shall have prescribed. But full, and exclusive, and sovereign, as this power must be admitted to be, it is not unlimited. It cannot appropriate private property to public use without either the consent of the owner, or the payment of a just compensation for the property or for the use of it. If the general government may constitutionally use a private way, or establish a post road through the lands, or a post office in the house of a private person, any person whose property shall be thus taken or used for public benefit, may lawfully demand a just compensation for the property, or for the use of it; the federal constitntion expressly secures it to him by interdicting the appropriation of private property to public use, without the owner's consent, or just compensation.

Had Congress designated this road as the mail route from Maysville to Lexington, the right to use it as such would have been subject to the condition of paying either a just compensation, or the toll which every citizen is required to pay; for the road would still have` been the property of the corporation, and the burthen of repairing it, when dilapidated by the horses and coaches of the mail contractor, would have devolved on the stockholders. There is no restriction, as to locality, on the the federal power to establish post offices and post roads. But the right to use private properey for a mail route, as for any other national purpose, being qualified by the constitutional condition that a just compensation be made for the use unless the owner shall voluntarily waive it, the power to establish post offices and post roads wherever Congress deem it expedient to establish them, though exclusive and supreme, does not, therefore, imply an authority to take or to use, for that purpose, the land or the house of a citizen, or the railroad or McAdamised road, of associated citi

-

zens, without paying to the owner or owners stockholders, for a valuable consideration, to a just compensation.

political obligation to observe it scrupulously and in good faith.

But, if the Lexington and Maysville turnpike should be deemed in all respects a State road, and if the power to establish post roads should be understood as giving to Congress authority to designate and use, as a post road, any highway in a State, without the consent of the State, nevertheless, such a power could not be understood as implying a right to use State roads upon any terms, or in any manner the general government may choose to prescribe, or on better terms than those on which the people of the States themselves are permit

prescribed tolls, of which the legislature could The turnpike road between Maysville and not deprive them without impairing the obliLexington is the property of the stockholders, gation of a solemn contract, and violating the in the same sense in which the railroad be- plighted faith of Kentucky. There can, we tween Lexington and Frankfort is the property think, be no doubt that the State had a perfect of the Company whose money constructed it. right to make such a contract, and, having The only difference is, that the railroad com-made it, is certainly under a clear moral and pany is not required by its charter to permit any person to use its road otherwise than for transportation in its own vehicles, and the charter of the turnpike company requires it to permit all persons, who may desire to use its road for transportation or travel, to do so, in their own way-on foot, on their own horses, or with their own carriages-by paying a prescribed toll. And can it be doubted that the United States would have no constitutional right to use, as a mail route, the railroad between Lexington and Frankfort, without the consent of its owners, or without paying them for the use a reasonable compensation? He who doubts on that subject, would be chargea-ted to use them in a similar manner. It cer ble with palpable inconsistency, unless he should also doubt whether his own house might not be taken and used as a post office without his consent and without any compensation; for the power to establish post offices and the power to establish post roads are commensurable, and the one is as sovereign and unlimited as the other, and not in any sense or in any degree, more so.

tainly does not impose on any State the duty either moral or political, of making or of repairing roads for post roads, but leaves them in the full possession of all the discretion they would otherwise have had to make such State roads, and to keep them in such repair as their own convenience and judgment alone may suggest. The people of the several States are under no constitutional obligation Can the carrier of the United States mail to make or repair roads for the use of the genhave a right, either legal or moral, to use the eral government; nor can they be required to bridge of a private person, or of an incorpora- apply their own money or labor even to the ted company without paying pontage, or the keeping open of any one of their roads which ferry of a grantee of such franchise without shall have been designated as a post route; paying ferriage? That he would have no such for, though a State highway once legally deright is, in our judgment, indisputable. And signated or established as a post route may the denial of such an unjust and anomalous continue de jure a post road as long as the act pretension is not at all inconsistent with the of Congress by which it was so designated or proper supremacy of the general government, established shall remain unrepealed, yet cerin the exercise of its necessary power to trans-tainly the State will not, therefore, be bound port the mail as cheaply, speedily and certainly to continue it, but may discontinue it as a State as possible, and when and where Congress road; and consequently, if, after any such disshall have prescribed and had authority to continuance of any such State road, the genprescribe. The power delegated to the general government choose still to use it as a eral government over the mail cannot be post road, Congress must keep it open and in greater than that which each State once pos- suitable condition, by the application of nasessed within its own borders; and had the tional means. The people of a single State people of the States never delegated any such are not exclusively interested in the transporpower to Congress, the State of Kentucky, in tation of the national mails within and through all the plenitude of her power, upon that hy- their own Commonwealth; the people of all pothesis, would surely have no right to use the States are benefitted by the proper and efthe Lexington and Maysville turnpike as a fectual transportation of intelligence through post road without paying a just equivalent to each State. And hence the interest being thus the company; for the constitution of Kentucky, common, and the power therefore national, the like that of the United States, provides that burthen, and the responsibility also, should be, private property shall not be taken for public and undoubtedly are, equally national, in use without "just compensation" to the owner, each and every State. The right to judge, or without his consent; and moreover, no and the responsibility of judging, as to what State can, consistently with the federal con-roads and kind of roads the United States shall stitution, pass any legislative act impairing have for post roads, having been devolved on the obligation of a contract; and not only is turnpike stock private property, but the charter of the company is a contract, entitling the

Congress, a State can neither exercise any controlling authority in that respect, nor be held responsible for any deficiency in any of

the facilities necessary or proper for the most use, and had the power over post roads been effectual transportation of the mails.

A right of way, upon terms equal and common to all, is, in our opinion, the utmost privilege that can be implied by an authority to designate State roads as post routes.

given to Congress for the purpose of designating the mail routes, and for no other purpose than that of designation and use, we would acknowledge that the argument would be not less conclusive than it may, on a superficial view of it, seem to be plausible.

If one State should, at a great expense, construct and preserve excellent roads, for the But we do not admit, either that a federal use of which it should exact a prescribed and power to designate and use State roads for post reasonable toll sufficient for reparation, or roads and a State power to exact a just comeven for indemnity for the cost, the people of pensation or toll for the use are necessarily other States, not choosing to provide such conflicting powers; or that the Lexington and roads for themselves, would have no right to Maysville turnpike has ever been designated require or expect that the public mails, in as a post road; or that the power to establish which they are all interested as a national post roads was given merely for enabling concern, should be transported, in carriages or Congress to designate and use State roads as otherwise, upon those costly and superior mail routes; or that a denial of the right to use roads, without any contribution from the na-State roads without the consent of the State, tional purse for such national use, and for the or without just compensation, would destroy wear and deterioration necessarily resulting or essentially impair the national comprefrom it. hensive and supreme power "to establish post roads."

If Congress, representing the interests and wills of the people of all the States, shall fail The national power to use the land of a or refuse to make any appropriation for con- citizen or a State for an armory or fortification, structing or repairing, or for aiding the con- is undoubted and irrestible. The constitutionstruction or reparation, of good roads in a al obligation to pay the owner a just equivaState, the general government would, as it lent, if it be demanded, is equally undoubted seems to us, have no pretence for claiming, for and inevitable. Yet, nevertheless, there is the federal public, any exclusive privileges in no conflict of power or of right, and the suusing such roads as post routes, or any ex-premacy of the general government is unquesemption from the burthen common to every tioned and unimpaired. And the acknowledgindividual of the local public, whose labor ment of a right in a State or a private corporaand money alone made and must preserve tion or a citizen to exact a toll from the genthem. It appears to us, that permission to the eral government, for the use of a road as a general government to use State roads as the post road, does not imply that the right is unState and its own citizens use them, and on limited. If the general government have no the same terms, should be considered a boon right to use a State road or private road withrather than a burthen-a valuable privilege out the consent of the State or owner, then the rather than an unjust or unauthorized exaction. power to exact toll for using it would undoubtA State road is, we think, private property, edly be illimitable; and nevertheless, if exeras contra-distinguished from federal property, cised so as to prevent the use, the general by the federal constitution. It belongs to the government would surely have no just cause people of the State, was made by them, must to complain that any of its powers or rights had be repaired and preserved by their labor and been denied. But, if the general government money, and is subject exclusively to their ju- have a right, without the consent of a State, risdiction and control. Then, according to to use a State road as a post road, the fact the constitution of the United States, can the that such a right exists, prescribes a clear and general government possess a paramount indisputable boundary to the power of taxing authority to use and dilapidate such a road, for the use; and that is "a just compensation" and thus impose on the people of the State an—the right to exact which cannot be inconsisaccumulated burthen without their consent, tent with the proper exercise of any power, or aud without making any compensation for the enjoyment of any right, which can be constiappropriation of their local property to inter-tutionally claimed by the national governnational use? We can perceive no plausiblement. ground for an affirmative answer.

If, as in this case, the tax or toll be uniform But the learned counsel for Dickey has ar- and universal, the very fact that it is so, is the gued that, if the power be conceded to a State most satisfactory proof that it does not exceed to tax the general government for transporting a just compensation: first-because it has been the mail on a State road, the right to designate fixed by a public and general law operating on and use State roads as post roads might be all alike; and, secondly-because it would be altogether frustrated by a perverse and cap-unreasonable to presume that a State, when tious State. Could the power to exact com-fixing a general rate of tollage for the use of a pensation or toll from the general government road constructed and preserved only for public for using State roads for post roads, imply an illimitable right of exaction which might be so abused as to amount to a prohibition of the

use, would ever attempt to exact a rate so exorbitant as to defeat the object of prescribing it: that is profit, or indemnity, to the people of

the State, to be secured only by the general such a road, and by the price allowed to him use of it. And there is no complaint that the by the contract; and there is, therefore, no toll exacted in this case exceeds a just com- pretence for insisting that the exaction of tolls pensation. conflicts with any power of the general govMoreover, as before suggested, we under-ernment, or for withholding from the owners stand the power to use State roads as post of the road that compensation for which the roads, to be only a right of common way; that contractor has been indemnified, either by his is, an authority to use such roads as the people contract, or by the road itself. themselves use them, and on the same termsneither better nor worse. And, on this construction, there can be no semblance of plausibility in an argument founded on possible abuse of State power.

But the simple power "to establish post offices," necessarily including (as it does and has always been understood as doing) plenary authority to superintend the transportation of the national mails, would, itself and alone, give an implied right of way over State roads as they shall be found to exist, and cum onere. The power to establish post offices was given by the articles of confederation to the confederate Congress. And, though that body was expressly interdicted from exercising any other power than such as had been expressly delegated, nevertheless it had, invariably and without question or complaint anywhere, superintended and regulated the transportation of the entire mails of the States, and used, for that purpose, the roads of the States as the people used them, and no other roads, nor on other or better terms.

But the confederate Congress had no power to make or repair post roads, or to use any other road than such as the States choose to keep open and to use.

But, unless we are altogether mistaken, the Maysville and Lexington turnpike has never been even designated by Congress as a post road. The act of Congress directing the mail to be carried between Lexington and Maysville, designated no particular road or route; and it was, moreover, passed prior to the construction of the turnpike, which is far from being identical in locality with the old road which it supplanted. If, then, any road from Maysville had ever been designated as a post road, it was the old and sometimes impassable road which had been discontinued since the completion of the new and far better road of the turnpike company. But in this, as in most other instances since the adoption of the federal constitution, Congress has not exercised its power "to establish post roads;" but has chosen to depend on the self-interest The want of such comprehensive and elective and comity of the government and people of power was, as we presume, felt to be injurious Kentucky, and the discretion of the mail con- and sometimes subversive of the great end of tractor, who may carry the mail on the turn-giving to the organ of the national will exclupike, or not, just as he may prefer and be per-sive control over the national mail: not bemitted. cause mail contractors had to use State roads If, then, Mr. Dickey be unwilling to pay just as other persons used them, but because for using the turnpike road, he may, without some State roads were not altogether suitable any violation of the law, or breach of his con- ways for the transportation of the mail with tract, adopt some other and cheaper road, proper celerity and certainty, and because provided he shall carry the mail in the time sometimes there might be no road where the required, and with safety. But if he will use national interest might require one for the a road never established as a post road, he most effectual diffusion of intelligence through certainly can have no right to claim any ex- the mails, and because, also, a State might clusive privileges, or to refuse to comply with obstruct or derange the mails by the disconthe condition on which alone every other per- tinuance of a road which had been used as a son is permitted to use the same road; and mail route; and, therefore, when the federal surely the general government-having neither constitution was adopted-and which was incontributed to the construction or reparation tended to give to a common government all of the turnpike road, nor established it as a national powers necessary for all national obpost road, nor claimed the right to use it with- jects-the people gave to the national Conout paying the prescribed toll, nor even stipu- gress the supplemental and important power lated for securing such use of it to the mail to establish post roads, as well as post offices. contractor-could have no pretence for com- As this new specific power was not necessary plaining that the exaction of toll from the con- for giving authority to use State roads, it tractor, is a defiance of its supremacy, or an should not be understood as conferring any impairment of its rights. But that government other right in the designation and use of such has not complained, nor will it, as we are roads as post roads, than that which existed bound to presume. The Postmaster General, before, and would still have continued to exas we presume, made the contract with Dickey, ist, without doubt under the constitution, had with the understanding by both parties, that it given no other power as to post roads than if, as was doubtless expected, he should carry the pre-existent power "to establish post of the mail on the turnpike, he would have to fices," which included necessarily the right pay the customary toll, for which he expected to designate and use State roads as post roads. to be indemnified by the facilities afforded by As to mere designation and use, the only dif