The House Committee, however, held that since a compact had been entered into between the federal government and the states, Congress had the right to legislate in order to carry out its undertaking to open and maintain the road. “If the right to punish these offences belongs to the national government,” said the committee, “it may be effected without the passage of any law, by an indictment or information in the courts of the United States, or by enacting statutory provisions fixing the penalties, it being a fundamental right of the judiciary inherent in every government to punish all offences against the laws passed in pursuance of a delegated power independently of express legislative sanctions.”[247]
After President Monroe’s veto, the Cumberland Road became sadly in need of repairs, and again Congress considered the question of jurisdiction,—whether the right to preserve was incidental to the right to establish. The states passed laws to protect the road against injuries and appropriated money for improvements, but the sums provided were inadequate[248] and soon a disposition was shown to consent to the assumption by Congress of complete control over the Road. The Pennsylvania legislature passed a resolution (1828) giving the federal government permission to collect tolls within the commonwealth, with the reservation that the whole amount collected should be devoted to repairs.[249]
Monroe had desired cooperation between the national and local authorities. In his message of December 2, 1823, he urged “an arrangement with the several states through which the Road passes, to establish tolls, each within its limits, for the purpose of defraying the expense of future repairs and providing also by suitable penalties for its protection against future injuries.”[250] This portion of the message was considered by the House Committee on Roads and Canals, whose opinion it was that Congress had itself the right to charge tolls and punish offences; the committee could not approve of an arrangement by which the states might charge tolls: uniformity and one jurisdiction were eminently desirable.[251] Yet in 1828–1829 when the whole question of control was again threshed out in Congress, any federal right, either absolutely or by virtue of state permission, to charge tolls, was still denied. Congress simply appropriated $100,000 for the repair of the road; Monroe’s distinction between appropriation and control was adhered to.[252]
The states, moreover, still asserted plenary authority. In 1833 the Maryland legislature gave the President authority to make a change in the Cumberland Road[253] and in 1834 Illinois consented to the extension of the national road “through the territory of said state so as to cross the Mississippi River at the town of Alton and no other point.”[254] For various reasons the road was not constructed, but Congress was several times memorialized to take the desired action[255] and in 1844 the Senate Committee on Roads and Canals, having under consideration a bill to extend the highway to Alton, made a favorable recommendation and pointed out the fact that the consent of the states affected was a necessary preliminary before actual construction could begin.
“The right of the state of Illinois to give or withhold her assent to the construction of the road within her limits,” said the committee’s report, “cannot be questioned in view of the course pursued by the general government to obtain the consent of other states.”[256] Reports to identical effect were made during the second session of the 28th Congress (January 15, 1845) and the second session of the 29th Congress (January 16, 1847),[257] the second report being accompanied by a strong letter from Senator Semple of Illinois, who pointed out that his state would never consent to any route other than the one which had been recommended in 1834.
Meanwhile definitive action had been taken during Jackson’s administration, as a result of his determined opposition to internal improvements and denial of federal authority to construct roads. “Annual appropriations for the repair of the road were being made, but this method could not continue indefinitely, inasmuch as tolls could not be levied by the United States for repairs. Because of the lack of jurisdiction, a resort to state control, with the consent of Congress became an absolute necessity.”[258] Acts of the Pennsylvania, Maryland, Ohio and Virginia legislatures were, therefore, passed, and congressional assent was given to the erection of toll gates and repairs by the states, with the provision in the compact that no charge should be made for the passage of United States mails, troops or property. In 1879 the control of the states was made complete and unreserved. Yet the original acts of surrender recognized “either a proprietary or jurisdictional interest, or both, in the United States, as follows: (1) something was surrendered; (2) surrender was made by ‘compacts’ which regulated the number of toll gates and the rates of toll; (3) provision was made for the United States to resume its proprietary or jurisdictional interest at pleasure.”[259]
But before the legal questions arising out of this surrender were passed upon by the Supreme Court of the United States, the whole problem of congressional power and the rights of the states was carefully considered by the Kentucky Court of Appeals, whose opinion,[260] treating points primae impressionis, is remarkably well considered. The particular question to be decided was whether a contractor for carrying the mail between points within the state on a turnpike road had any right of exemption from the tolls, exacted under the company’s charter from other persons for the transit of their horses and stages. The court held that the tolls should be paid.
It recognized that the postal 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 axiomatic truths it follows as a plain corollary that the general government has the right to transport the national mail whenever and wherever the national Congress, in the constitutional exercise of its delegated power over postoffices and postroads shall have prescribed.” But, said the court, this power was not unlimited, and could not appropriate private property for public use without just compensation. If the turnpike was considered as private property in view of the company’s franchise, tolls should be paid by the mail contractor; considering the turnpike as a public state road, the court reached the same conclusion, which, it pointed out, would not have been modified had Congress seen fit to designate this particular road as a mail route. Anyone doubting the logic of this, the court said, “should also doubt whether his own house might not be taken and used as a postoffice without his consent and without any compensation.”
The court then proceeded, obiter, to explain its understanding of the postroads power. According to reason and philology, the import of “establish” was declared to be, not merely “designate” but “found, prepare, make, institute and confirm.” “So too,” the court held, “as roads and good roads are indispensable to the effectual establishment of postroads, the supreme power to ‘establish postroads’ necessarily includes the power to make, repair and preserve such roads as may be suitable....” Congress therefore was considered to have the power to open roads and build bridges when necessary; there was no question of constitutional right, simply of expediency.[261]
“Unless Congress shall elect to exercise 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 postroad without the consent of the state or the owner, without making just compensation for the use.” Here was acknowledgment of an authority more far reaching than even the more liberal contemporary opinion gave to Congress; the court recognized a right of eminent domain to take over a road, but until this was exercised, the mails were subject to tolls.