John Perrine, Complainant v. the Chesapeake and Delaware Canal Company, Defendants

• Decision Date: 01 January 1850
• Citation: 9 How. 172,13 L.Ed. 92,50 U.S. 172
• Parties: JOHN A. PERRINE, COMPLAINANT, v. THE CHESAPEAKE AND DELAWARE CANAL COMPANY, DEFENDANTS
• Court: U.S. Supreme Court

50 U.S. 172

9 How. 172

13 L.Ed. 92

JOHN A. PERRINE, COMPLAINANT, v. THE CHESAPEAKE AND DELAWARE CANAL COMPANY, DEFENDANTS.

January Term, 1850

THIS cause came up from the Circuit Court of the United States for Delaware, on a certificate of division in opinion between the judges thereof.

It involved the construction of the ninth and eleventh sections of the charter granted by Maryland, the provisions of which are similar to those of the charter granted by Delaware.

'SEC. 9. For and in consideration of the expenses the said stockholders will be at, not only in cutting the said canal and other works for opening the said navigation, but in maintaining and keeping the same in repair, the said canal and works, with all their profits, under the limitations aforesaid, shall be, and the same are hereby, vested in the said corporation for ever, and it shall and may be lawful for the said president and directors, after the said canal shall be made navigable, to demand and receive the following tolls ..... every pipe of wine or French brandy containing . . . 'one dollar and twenty-five cents,' ..... [&c., enumerating articles and specifying the tolls,] and for all other commodities the same proportion, agreeable to the articles herein enumerated; and every boat or vessel which has not commodities on board to pay the sum of four dollars shall pay so much as, with the commodities on board, will yield the sum aforesaid, and every empty boat or vessel four dollars, except an empty boat or vessel returning, whose load has already paid the tolls affixed, in which case she shall pass toll-free.'-

'SEC. 11. The said canal and works to be erected thereon by virtue of this act, when completed, shall for ever thereafter be esteemed and taken to be navigable as a public highway, free for the transportation of all goods, commodities, or produce whatsoever, on payment of the toll imposed by this act, and no tax whatsoever for the use of the water of the said canal, or the works thereon erected, shall at any time hereafter be imposed by all or either of the said States.'

The following correspondence explains the origin of the dispute.

(Exhibit No. 1.)

To the President and Directors of the Chesapeake and Delaware Canal Co., Philadelphia.

Princeton, N. J., 24th March, 1847.

GENTLEMEN,—As I propose to establish a canal passenger line of boats between Camden, Philadelphia, and Baltimore, to pass through your canal, I think proper to give you notice of my intention so to do. My plan is to commence running on the 1st day of May next, to be continued through the spring and summer. I have been informed that the company of which you constitute the Board of President and Directors claim the right to prevent the transit of passengers through the said canal, if you deem it expedient so to do; and that if you permit it, you still maintain the right to charge a toll for each passenger whom you allow to pass through. Now, being of opinion that neither by your charter, nor by law, are you authorized either to exclude passengers, or to charge a toll on them, I beg to inquire whether any such right or authority is claimed or will be insisted on by you, so as to prevent future misunderstanding, and I shall be obliged by an answer at your earliest convenience.

Very respectfully, your obedient servant,

(Signed,) J. A. PERRINE.

TO CALEB NEWBOLD, ESQ., Pres't Ches. and Del. Canal Co., Philadelphia.

(Exhibit No. 2.)

Chesapeake and Delaware Canal Office, Philadelphia, 30th March, 1847.

At a meeting of the Board of President and Directors of the Chesapeake and Delaware Canal Company, held this day, the President laid before the board a letter dated 24th instant, from John A. Perrine, Esq., of New Jersey, stating his intention to

establish a canal passenger line between Camden, Philadelphia, and Baltimore, and making inquiry as to the transportation of passengers through the canal, and a charge of tolls therefor.

The said letter was read and considered, and it was resolved, That the President reply to Mr. Perrine, and inform him that the company claims the right to exclude passengers unless their transit is allowed by the special permission of the company, and, if that is granted, then to receive a fair rate of toll for each passenger.

Extracts from the minutes.

PETER V. LESLEY, Sec.

(Exhibit No. 3.)

TO JOHN A. PERRINE, ESQ., Princeton, New Jersey.

{Chesapeake and Delaware Canal Office, Philadelphia, 30th March, 1847.

SIR:—Your letter of the 24th instant, addressed to the President and Directors of the Chesapeake and Delaware Canal Co., has been received, and was laid before the board. A resolution was passed by them, of which I inclose you a copy. The company regard the canal as a 'public highway, free for the transportation of all goods, commodities, or produce whatsoever,' on payment of the tolls 'authorized by charter, and for boats or vessels which have not commodities on board,' on payment of the sum authorized in such case by charter; but they deny that it is a public highway for the transportation of passengers, and claim the right to exclude passengers, except by special permission of the company; and if that is granted, then to receive a fair rate of toll for each passenger. The canal was intended by the charter to be used by vessels engaged in commerce, not by passenger lines, which interfere with the trade and injure the canal. Any vessel you may send in the line you propose to establish will be permitted to pass through, if they have goods, commodities, and produce on board; or, if empty, on payment of the regular tolls now imposed. If you carry passengers, or persons not engaged in the navigation or business of the vessel or cargo, you will be required to pay one dollar toll for each passenger, on arriving at the first lock. If you refuse to make this payment, or to land your passengers, the vessel will not be permitted to pass through the canal. I am directed also to say, that, if your vessels pass through the canal, they will be required to adhere strictly to all the existing rules and regulations as to speed and conduct. Very respectfully, your obedient servant,

(Signed,) C. NEWBOLD, JR., President.

(Exhibit No. 4.)

To the President and Directors of the Chesapeake

and Delaware Canal Company.

Princeton, New Jersey, April 1st, 1847.

GENTLEMEN:—I have received the letter of your President, dated the 30th of March. After due reflection, I have in reply to say, that I do not consider the Chesapeake and Delaware Canal Company as being authorized by law, either to exclude passengers from my vessels, or to charge me any other toll than the sum they are authorized by the charter to receive for an empty vessel. This I will pay, but no more, unless I have commodities on board, and then no more than the regular tolls now imposed thereon. Not deeming it necessary to prolong this correspondence, I shall only further repeat my notice, that I shall commence the canal passenger line mentioned in my letter of the 24th ultimo on the 1st day of May next, and I trust no obstacle will be presented by your officers or agents at the canal.

Very respectfully, your obedient servant,

(Signed,) JOHN A. PERRINE.

(Exhibit No. 5.)

{Philadelphia, Chesapeake, and Delaware Canal Office, April 6th, 1847.

At a meeting of the Board of Directors of the Chesapeake and Delaware Canal Company held this day, the President laid before the board a copy of a letter addressed by him on the 30th of March, 1847, to John A. Perrine, Esq., of Princeton. New Jersey, in compliance with the resolution of the board or the 30th of March, 1847, and also the answer of Mr. Perrine thereto, dated the 1st instant.

The said letters were read and considered, and that of the President approved. It was then, on motion, resolved,——

That the President instruct the superintendent at the Delaware Tide Lock, on the Chesapeake and Delaware Canal, to permit any vessel of the canal passenger line established by John A. Perrine, Esq., to pass through the canal, if it have goods, commodities, or produce on board, or if empty, on payment of the regular tolls now imposed; but if the said vessel carry passengers or persons not engaged in the navigation or business of the vessel, or cargo, to require from the master of said vessel the payment of one dollar toll for each passenger, before said vessel passes out of said lock; and if such payment be not made, or the passengers be not landed from said vessel,

then not to permit it to pass through the canal. And further, to instruct the superintendent, and the officers and agents of the company, to be diligent in requiring any such vessel, if it shall enter or pass through the canal, to adhere strictly to all the existing rules and regulations as to speed and conduct.

Resolved, That the President transmit to Mr. Perrine a copy of the above resolution.

Extract from the minutes.

PETER V. LESLEY, Secretary.

(Exhibit No. 6.)

TO JOHN A. PERRINE, ESQ., Princeton, New Jersey.

{Chesapeake and Delaware Canal Office, Philadelphia, April 6th, 1847.

SIR:—Your letter of the 1st inst. was received and laid before the board. Pursuant to their direction, I inclose a copy of a resolution adopted in relation thereto.

It is proper for me to apprise you, that the instructions therein mentioned have been given to the superintendent at the Delaware Tide Lock, and they will be strictly enforced.

Very respectfully, your obedient servant,

(Signed,) C. NEWBOLD, JR., President.

(Exhibit No. 7.)

TO MR. JOHN ASH, Superintendent of the Delaware Tide

Lock on the Chesapeake and Delaware Canal.

{Chesapeake and Delaware Canal Office, Philadelphia, April 6th, 1847.

SIR:—I inclose a copy of a resolution this day adopted by the Board of President and Directors, in relation to a canal passenger line established by John A. Perrine, Esq., of New Jersey; you will be particular in enforcing the decision of the board, as...