Van Buren v. Wylie
| Citation | 56 Mich. 501,23 N.W. 195 |
| Court | Supreme Court of Michigan |
| Decision Date | 29 April 1885 |
| Parties | VAN BUREN v. WYLIE. |
Error to Kent.
Godwin & Earle, for plaintiff and appellant.
Maher & Felker, for defendant.
The defendant was a gate-keeper on a gravel-road, and was sued for penalties under section 3636 of Howell's Statutes for exacting "more toll than by law he is authorized to collect." The claim of the plaintiff was that he was not liable to any toll at all--First, because the road was not in such condition as to justify the collection of any toll; and second, because the plaintiff at the time was merely passing through the gate in going from one part of his farm to another.
If the facts were as plaintiff claims, I do not think the statute applies. The penalty given by the statute is given for taking excessive toll, and the statute plainly implies that some toll is collectible. This was the view taken of a like statute in New York. Conklin v. Elting, 2 Johns. 410; Norval v. Cornell, 16 Johns. 73. A different decision was only made in that state after the statute had been so changed as to admit of it. Skinner v. Anderson, 12 Barb. 648. A penal statute should not be extended by construction, and there is certainly no reason for it in this case; for a statute which would compel a gate-keeper to decide correctly, under considerable penalties, all disputed questions of exemption, and of the sufficiency of the road, would be harsh, to say the least, if not unreasonable. But I do not think this statute so intends.
The judgment should be affirmed.
Section 41 of the plank-road act of 1851, (How.St. � 3636,) provides that "every toll-gatherer at any gate, who shall unreasonably hinder or delay any traveler or passenger, or shall demand or receive from any person more toll than by law he is authorized to collect, shall for each offense forfeit the sum of five dollars to the party aggrieved, and shall be liable to the party aggrieved for all damages."
This action was brought to recover from the defendant, who was a toll-gatherer in the employ of the Grand Rapids & Walker Plank-road Company, the amount of 22 penalties incurred, as plaintiff claims, for an equal number of violations of the above-mentioned act. The plaintiff owned a farm in the city of Grand Rapids, and carried on another in Walker township, out of the city, and one half mile from the first. In January, 1884, in carrying on his farming operations, he was obliged to go from one farm to the other 22 times, and in so doing had to pass through the toll-gate of defendant, who compelled him, against his protest, to pay the toll demanded before plaintiff was allowed to pass. The plaintiff claimed--First, that he had a right to pass free, while going from one farm to the other in performing his legitimate farm work, under section 3625, How.St.; and, second, that the company, having failed to make the road of the grade, and to cover it with gravel to the depth required by statute, had no right to collect of the plaintiff the toll demanded. How.St. �� 3623, 3694.
The declaration contains 22 counts, one for each forfeiture claimed. The defendant pleaded the general issue. The cause was tried before Judge MONTGOMERY, in the Kent circuit, without a jury. The record contains the facts found by him, and his conclusion of law upon which he rendered judgment for the defendant.
The court found as facts that the company erected the toll-gate and employed the defendant to act as toll-gatherer; that the plaintiff carried on the two farms together in his business and that they knew the distance apart above stated; that he resided on the city farm, and in conducting his regular farming business on both, in passing from one to the other, he made the 22 trips to the outlying one; that in so doing he was obliged to pass through the gate of defendant, and paid the toll demanded by defendant against...
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