Stuart against Rich

Stuart against Rich. Under the act incorporating the first company of the groat Western turnpike road, full toll is payable, though the person has travelled the road less than 10 ralles. On certiorari. The plaintiff was a toll gatherer at one of the gates erected under the act passed the 15th March, 1799, entitled <l An act to establish a turnpike corporation, for improving the state road from the house of John Weaver, in Watea Yliet, to Cherry Talley,” incorporating the first company of the great Western turnpike road. By a clause m the 10th section of the law, it is provided that no gates or turnpikes (except a turnpike on a bridge before mentioned) shall be erected at a distance less than ten miles from the other. The 11th section enacts, “ That as soon as the whole, or any part of the said road shall be completed, and permission to erect a gate or gates as aforesaid, be granted, the president and directors maj appoint toll gatherers, to collect and vecei\ e of and from all and every person or persons, using the said road, the tolls an I duties hereinafter mentioned, and no more, that is to say, any number of miles not less than ten in length of said road, the- following sums of money, and so in proportion for any greater or lesser distance, to wit: for every score,” &c. Under the 15th section, a penalty of five dollars is imposed on any toll-gatherer who shall receive more toll than is established by the act: to be sued for before any justice of the peace of the county in which the offence shall be committed, for the use of the party injured. Upon this clause, seven actions had been instituted below, against the present plaintiff, and recoveries obtained in all, for receiving at his gate full toll from travellers who had not passed ten miles on the road. *It was now submitted to the court, whether ' the full toll was rightly taken, or, whether there should not have been a deduction made from it in proportion to the distance which the travellers had used the road, less than ten miles, according to the arithmetical rule, if ten miles give so much, what will seven and a half give ? If the court should decide in favor of the proportional deduction, the judgment to be affirmed; if against it, and for the now plaintiff, a reversal to be entered. [MAJORITY — Kent, J.,] Kent, J., delivered the opinion of the court. The question submitted is, as to the true construction of the 11th section.of the act, 2 Rev. Laws, p. 393. The gates on that road, except the one upon the Scoharie bridge, are all required to be not less than ten miles from each other, and the 11th section gives the toll therein established for any number of miles not less than ten in length, of said road, and so in proportion for any greater or lesser distance. These last words can be satisfied, by applying them to the greater or lesser distance of the gates above ten miles. The gates i ray be twelve, or fifteen, or twenty miles apart, and then the toll is to be assessed ratably, according to the distance, which cannot, however, be less than ten miles. This construction is the only one that is reasonable, and it will sat isfy the words. The idea that the company must vary the toll at every ten mile gate, on the suggestion that a person has used the road for a less distance than ten miles is inadmissible, because impracticable. The toll-gatherer has no means of knowing whether the traveller has rode ten miles, or a less distance, previous to his arrival at the gate. If this suggestion was allowed to be a ground of reduction of toll, it would open a door to the greatest imposition and fraud upon the company, and it cannot be considered as within the meaning and spirit of the act, especially as the words can be satisfied by the other construction, which is a natural, just, and practicable construction. Judgment of reversal, therefore, must be entered. Judgment reversed. Radcliff, J., being a stockholder, gave no opinion.