Dickey v. The Maysville, Washington, Paris and Lexington Turnpike Road Co.

• Citation: 37 Ky. 113
• Parties: M. W. Dickey v. the Maysville, Washington, Paris and Lexington Turnpike Road Company.
• Decision Date: 22 June 1838
• Court: Court of Appeals of Kentucky

37 Ky. 113

M. W. Dickey v. the Maysville, Washington, Paris and Lexington Turnpike Road Company.

Court of Appeals of Kentucky.

June 22, 1838

FROM THE CIRCUIT COURT FOR MASON COUNTY.

Messrs Robinson and Johnson for appellant.

Mr Owsley for appellee.

OPINION

ROBERTSON CHIEF JUSTICE

The only question presented for consideration in this case, is whether Milus W. Dickey, as the contractor for carrying the United States' Mail from Maysville to Lexington, in this State, has the right, in execution of his engagement, to transport the mail in stage coaches on the turnpike road between those termini, without paying to the use of the Turnpike Company, the rate of tollage exacted by it, under the authority of its charter, from other persons for the transit of their horses and carriages.

Contractors carrying the mails of the U. S. and availing themselves of turnpike roads, ferries, bridges, & c., constructed and owned by States, corporations, or individuals, are subject to the same tolls for the passage of their vehicles with the mails as other travelers pay for a like use of the same improvements.

The power to establish postroads was given for the purpose of enabling the general government to make, repair, keep open and improve, post roads, whenever the exercise of such an independent, national power shall be deemed proper for effectuating the satisfactory transportation of the mail.

It was not given for the purpose of authorizing Congress to adopt and use State roads as post roads, without any compensation if any should be just and should be demanded.

So far as the designation and use of any State road as a post route, may be concerned, the power to establish post roads can not import more than the precedent power to establish post offices, and transport the mails--excepting only, that the one implies only a right of use upon just and common terms, as long only as a state shall choose to continue a road as a State road, and the other may imply a right in congress, not only to enjoy the like use, but to continue, as a post route, a road once adopted or designated or established as a post road, even after it shall have been discontined as a State road.

Unless Congress shall elect to exert its right of eminent domain, and buy a State road, or make one or help to make or repair it, the constitution gives no authority to use it as a post road, without the consent of the State, or owner or without making a just compensation for the use. And, therefore--Even if the Lexington & Maysville turnpike should be deemed a public State road in all respects, and if the mail contractor has a right to transport them on any public road he may prefer or choose to adopt, between Lexington and Maysville. he can not do so, nor had Congress power to authorize him to do so, without paying for the use if demanded a just compensation, and that is--prima facie at least what other persons are required to pay, for a similar use of it.

All national power should belong exclusively to the general or national government. And, as nothing can be more national than the regular and certain diffusion of intelligence among the people of the United States through the medium of the public mail, therefore, the power " to establish post offices and post roads" is expressly delegated by the federal constitution to the Congress of the United States; and that power being necessarily exclusive, plenary, and supreme, no State can constitutionally do, or authorize to be done, any act which may frustrate, counteract, or impair, the proper and effectual exercise of it by national authority. From these axiomat??c truths it follows, as a plain corollary, that the general government has the unquestionable and uncontrollable right to transport the national mail whenever and whereever the National Congress, in the constitutional exercise of its delegated power over post offices and post roads, shall have prescribed. But full and exclusive and sovereign as this power must be admitted to be, it is not unlimited. It can not 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 constitution expressly secures it to him by interdicting the appropriation of private property to public use, without the owner's consent, or just compensation.

Having been constructed by an association of individulas incorporaed into a private body politic by an act of the Kentucky Legislature, which gave the corporation the right to charge tolls, according to a prescribed scale, in consideration of the appropriation of its own funds to the construction of the road for the public benefit--the turnpike road from Maysville to Lexington should be deemed private property, so far as the value of the franchise and the right to preserve it, as conferred by the charter in the nature of a contract, may be concerned. And therefore, the public--whether it be Kentucky or the United States--can have no constitutional right to use the road without contributing, to its reparation and preservation, either a just compensation for the use, or the rate of tollage prescribed by the corporation under the sanction of its charter. By authorizing the company to exact a fixed compensation for the use of the road, the charter interfered with or impaired the power to carry the mail 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.

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 locality, on the federal power to establish postoffices and post roads. But the right to use private property 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 orMcAdamised road of associated citizen, without paying to the owner or owners a just compensation.

The turnpike road between Maysville and Lexington is the property of the stockholders, in the same sense in which the railroad between Lexington and Frankfort is the property of the Company whose money constructed it. The only difference is, that the railroad company 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, or 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 chargeable 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.

Can the carrier of the United States mail have a right, either legal or moral, to use the bridge of a private person, or of an incorporated company, without paying pontage, or the ferry of a grantee of such franchise without paying ferriage? That he would have no such right is, in our judgment indisputable. And the denial of such an unjust and anomalous pretension is not at all inconsistent with the proper supremacy of the general government, in the exercise of its necessary power to transport the mail as cheaply, speedily and certainly as possible, and when and where Congress shall have prescribed and had authority to prescribe. The power delegated to the general government over the mail can not be greater than that which each State once possessed within its own borders; and had the people of the States never delegated any such power to Congress, the State of Kentucky in all the plenitude of her power, upon that hypothesis, would surely have no right to use the Lexington and Maysville turnpike as a post road without paying a just equivalent to the company; for the constitution of Kentucky, like that of the United States, provides that private property shall not be taken for public use without " just compensation" to the owner, or without his consent; and moreover, no State can, consistently with the federal constitution, pass any legislative act impairing the obligation of a contract; and not only is the turnpike stock...