Saunders v. Hathaway, 25 N.C. 402, 3 Ired. 402 (1843)

June 1843 · Supreme Court of North Carolina

25 N.C. 402, 3 Ired. 402

ROBERT J. SAUNDERS vs. NATHANIEL HATHAWAY.

June 1843

Although the County Courts, in authorizing the erection of toll bridges, are to lay uniform tolls ; yet the owner of a toll bridge is not obliged to colled the same toll from every person. He may levy what he chooses from each person, keeping within the rates prescribed by the Court, or relinquish it altogether.

The County Court of Perquimons has the same power, under the private act of Assembly of 1838, c. 11, in relation to the toll bridge over Perquimons liver, at the town of Hertford, which by that act they were authorized to purchase.

Appeal from the Superior Court of Law of Perquimons County, at Spring Term, 1843, his Honor Judge Pearson presiding.

This suit was commenced by warrant for $9 05, the amount of toll for passing a bridge over Perquimons river, at the town of Hertford. The defendant admitted that he had crossed the bridge as alleged, and that the usual rate of toll amounted to the sum sued for, and put his defence on the ground, that, as the plaintiff did not take toll from any citizens of Perquimons, he had no right to exact toll from him, he being a citizen of Chowan county. It was admitted that the Perquimons river at Hertford was a rapid and wide stream, within the meaning of the act of 1784,. one over which it would have been too burdensome for the county of Perquimons to have erected a bridge, as a free bridge. It appeared, that in 1797, the County Court, in pursuance of the act of 1784, had made a contract with one Newby and Clary to build a toll bridge, had fixed the rates of toll, and granted the revenue arising therefrom to the said Newby and Clary, and their representatives, for 99 years — that in the year 1799, and for several successive years, the County Court of Perquimons made a bargain with Newby and Clary to permitall citizens of that county to pass toll free on pub- , % 1 . , lie days, for a fixed annual sum — that under a private act of Assembly passed in 1838, the justices of the County Court had bought the bridge at the price of $5700, and the justices held it as trustees for the people of the county — that the justices had, from year to year since the purchase, leased the bridge to the plaintiff, with the privilege of charging toll to all persons, except the citizens of Perquimons county and ministers of the gospel, who were to be permitted to pass toll free. The defendant’s counsel relied on the proviso of the act of 1784, that such toll should be general to all persons, and no one to be exempt therefrom, and insisted, that the county, having become the owners of the bridge, with power to exact or remit the usual lawful toll, had no power to lease to the plaintiff, making such an invidious distinction in favor of the citizens of Perquimons. The court was of opinion that, by the law in reference to bridges, water courses are divided into three classes. 1st. Tire small ones are to be bridged, if necessary, by the overseer of the road. 2dly. Those of a larger size are to be bridged out of the funds of the county. 3dly. Those of the largest size are to have ferries, or toll bridges, under the act of 1784. On the first two classes, the citizens of the State have a right to expect to pass with safety and convenience free of toll. Ou the third class, they have no right to expect to pass toll free. The proviso in the act of 1784, making the toll general, was intended to prevent the County Court from being tempted to include in the third class a water course of the second class, by being at liberty to make astipulation with the contractor to let the citizens of the county pass toll free, and from being tempted to grant the revenue of the tolls for a longer time for the like consideration. After the contract was made, the tolls fixed and the bridge built, the contractors might let any one pass toll free, or might take a certain yearly sum in lieu of the tolls arising from any class of persons or the citizens of any particular county, without violating the proviso in the act of 1784. The purchase by the County Court in 1838, operated to vest in the justices, as the successors oi the original contractors, all their rights for mieXpjre¿¡ term 0f 99 years ; and the justices had a right to lease to the plaintiff for a larger sum with the privilege of exacting toll from all persons, or for a less sum without the privilege of exacting toll from the citizens of Perqui-mons or ministers of the gospel, but of all other persons, without violating the act of Assembly, and without-being liable to the imputation from the citizens of other counties, who had no right to expect to pass the bridge toll free at least till the end of 99 years, of making a distinction in favor of the citizens of Perquirr.ons, who had been taxed $5700, the price given, in lieu of all toll which they would otherwise have had to pay. The jury found a verdict for the plaintiff, and judgment having been given accordingly, the defendant appealed.

No counsel for the plaintiff.

Kinney for the defendant.

Ruffin, C. J.

We think no serious doubt can be raised of the plaintiff’s right to recover. Although the Legislature does not allow the County Court to build a toll bridge, nor to authorize a private person to build one and collect thereat unequal tolls from different, persons ; but, for obvious reasons, requiring the court to lay uniform tolls: yet it is clear, that the builder of the bridge is not obliged to collect the same toll from every person. None of the reasons for laying such a toll apply to its collection. It is granted to the builder as his compensation. It is for his benefit and is his property; and, consequently, he may levy what he likes from each person, within the rates fixed by the court, or relinquish it altogether. As applied to a bridge, remaining private property, these positions were not disputed at the bar. But it was said, that, upon a purchase by the County Court, the bridge becomes free for all persons, as there is no difference between building a bridge and buying one already built; and it was pressed upon the court, that there would be danger of evading the act of 1784, (Rev. Stat. ch. 104, sec. 26,) if the court might grant the franchise to an individual, and then buy him out, with a view to the tolls as a revenue to the county, raised at the expense of passengers from other counties. But there is no color for the imputation of collusion in this case ; for the bridge was held as private property for upwards of forty years, and was then purchased by the county under the sanction of the Legislature. In the next place, it may be admitted, that, under the act of 1784, upon a purchase by the public, the bridge is made public and free, yet in this case the parties did not trust to that act, but procured *‘a special one to be passed to obviate that provision of the general law. The private act of 1838, ch. 11, confers on a majority of the justices of the County Court of Perquimons, power to purchase this bridge “ for the benefit of the county,” and to receive a conveyance for and “ hold it as trustees for the county, and to exact or remit the usual lawful toll for passing thereof, as to them may seem most conducive to the benefit of the people of said county,” and then the justices are required to keep the bridge in repair, and, in default thereof, are made liable, as other owners of toll bridges, to be sued for damages sustained by any person. It is evident that the object of this act was to enable the justices to purchase and hold this, as a toll bridge. Without any act they could, by a mere purchase, have opened the bridge freely to the public; and it was the purpose of the Legislature to prevent the purchase from having that effect, and to vest the bridge in the justices as legal owners, without therein changing it from a toll to a free bridge. By virtue of their ownership, the justices, without restraining words in the act, could, of course, collect or not collect the tolls from any individuals or classes in their pleasure. There is no such restriction upon their rights as general owners; but, on the contrary, the Ianguage5 when applied to one who is the owner of the bridge, imports the utmost latitude of discretion and power to “ exact or remjt tke t0nf” 'Whether, therefore, we advert to the rights of ownership, or to the authority conferred on the justices by the act of 1838, to collect or remit tolls, we conclude that they could lease to the plaintiff upon an agreement, that he should not demand toll from certain persons, and might from all others.

Per Curiam. Judgment affirmed.