When, seven years later, the Supreme Court of the United States passed upon the toll question which arose under the compact ceding the Cumberland Road to the states,[262] there was the same opportunity to make a definite pronouncement as to the authority of Congress to engage in road construction; in its opinion, however, the Court made no use of this opportunity, although a dissentient justice voiced his views that the power of Congress was not so great as that asserted in the Dickey case.
The act of the Ohio legislature in taking over the Cumberland Road specifically provided that tolls should not be collected for the passage of the mails; but the Pennsylvania law was more general, declaring that “no toll shall be received or collected for the passage of any wagon or carriage laden with the property of the United States....” The Maryland act was precisely the same as this, while the Virginia statute followed the Ohio law. In 1836, however, Pennsylvania declared that the exemption should be only in proportion to the amount of property belonging to the United States, and “that in all cases of wagons, carriages, stages or other modes of conveyance, carrying the United States mail, with passengers or goods, such wagon, stage, or other mode of conveyance shall pay half-toll upon such modes of conveyance.”
The validity of this legislation was the question presented to the Supreme Court, and in its decision the Court could well have entered upon a discussion of the power of Congress in the premises. But Chief Justice Taney, who delivered the opinion, was at pains to point out, “that the constitutional power of the general government to construct this road is not involved in the case before us; nor is the court called upon to express any opinion on that subject; nor to inquire what were the rights of the United States in the road previous to the compacts hereinbefore mentioned.”
Taney simply held, therefore, that “the United States have unquestionably a property in the mails”; that this property was exempted from the payment of tolls by the terms of the compact, but this exemption should not apply to other property in the same vehicle, nor to any person unless in the service of the United States. Finally, in answer to the objection that small parcels might be sent by a number of conveyances to relieve them from the payment of tolls, Taney held that “the United States cannot claim an exemption for more carriages than are necessary for the safe, speedy, and convenient conveyance of the mail.”
From Taney’s judgment, Justice McLean dissented, primarily on the ground that “the mail of the United States is not the property of the United States,” and that charging tolls for its passage was not in violation of the compact. Justice Daniels, however, objected upon different grounds, and declared that it was necessary to consider “the operation and effect of the compact insisted upon as controlled and limited by the powers of both contracting parties.”
“I hold then,” he declared, “that neither Congress nor the federal government in the exercise of all or any of its powers or attributes possesses the power to construct roads, nor any other description of what have been called internal improvements within the limits of the states. That the territory and soil of the several states appertain to them by title paramount to the Constitution, and cannot be taken, save with the exception of those portions which might be ceded for the seat of the federal government and for sites permitted to be purchased for forts, arsenals, dockyards, etc. That the power of the federal government to acquire, and that of the states to cede, to that government portions of their territory, are by the Constitution limited to the instances above adverted to, and that these powers can neither be enlarged, nor modified, but in virtue of some new faculty to be imparted by amendments of the Constitution.
“I believe that the authority vested in Congress by the Constitution to establish postroads, confers no right to open new roads, but implies nothing beyond a discretion in the government in the regulations it may make for the postoffice department for the selection amongst the various routes, whilst they continue in existence, of those along which it may be deemed most judicious to have the mails transported. I do not believe that this power given to Congress expresses or implies anything peculiar in relation to the means or modes of transporting the public mail, or refers to any supposed means or modes of transportation beyond the usual manner existing and practised in the country, and certainly it cannot be understood to destroy or in anywise to affect the proprietary rights belonging to individuals or companies vested in those roads. It guarantees to the government the right to avail itself of the facilities offered by those roads for the purposes of transportation, but imparts to it no exclusive rights—it puts the government upon the footing of others who would avail themselves of the same facilities.”
For these reasons, “the government could legally claim no power to collect tolls, no exemption from tolls, nor any diminution of tolls in their favor, purely in consequence of their having expended money on the road, and without the recognition by Pennsylvania of that expenditure as a condition in any contract they might make with that state.” Nevertheless the United States could contract with Pennsylvania, and so Justice Daniels examined the terms of the agreement, coming to the conclusion that by its terms, United States mail was not exempt from toll charges.[263]
While the authority of the majority opinion in this case is somewhat lessened by the fact that the argument was as to the meaning of the compact, it was held, impliedly at least, that in order to carry out one of its delegated powers,—the establishment of postoffices and postroads,—the United States might, by compact, enter upon a scheme of internal improvements. Furthermore, the court, by holding that the general government had the right to enter into the compact of surrender, recognized an original federal interest in the Cumberland Road. The clear import of the majority opinion is, I think, that if Taney had considered it necessary to pass upon the point, Congress would have been accorded the right to construct postroads, and this would have included authority to charge tolls for the use of the highways by others than the postoffice department.[264]
These adjudications were carried a long step further when the Supreme Court asserted the federal right of eminent domain which had been foreshadowed in the Dickey case, but not exercised by Congress.[265] In 1864 the Northern Pacific Railroad was incorporated, and lands were granted to aid in the construction, but the act provided that the company “shall obtain the consent of the legislature of any state through which any portion of said railroad line may pass, previous to commencing the construction thereof.” Congress reserved the right to appeal or amend the act, “to secure to the government at all times (but particularly in time of war) the use and benefits of the same for postal, military and other purposes.”[266] In 1868, however, Congress undertook improvements in the Mississippi River, and authorized its agents to take possession of the necessary materials “after having first paid or secured to be paid, the value thereof which may have been ascertained in the mode provided by the laws of the state.”[267]