2-5-3-G-5-b_e-5. eb ae Ste NAA mem cane 
aA 


SS ee 
bei er 7 
* oe te 


Ppa 


<a 


[Document J.| 
BY THE SHNATE, 
Frpruary 7, 1870. 
Read and ordered to be printed. 
By order, 


Avaustus GASSAWAY, 
Secretary. 


ee 


RE. P Ormeyvet 


OF THE 


ATTORNEY GENERAL 


IN RELATION TO THE 


CUMBERLAND, MARYLAND, 


TO THE 


PENNSYLVANIA LINE. 


ANNAPOLIS: 
WM. THOMPSON or R., Printer, 


- 


1870. 


ayy 


ee roo) 


lA MMe SIL VE 
JOFRL YT vaaoaaan'tt 


| sbatairg od ot frobio 
tebio yi. 
LAW ARRAN) BOTAUO A 
“iateiwed | 


fly oO) A i A 


bY ne Va 


f JASavaD YansOTna 


: 

1 he 
ary 
Sy 


STEP OF MOP Ada 4 


a 


1 rd 9 


RHPORT: 


STATE OF MARYLAND, 
ATTORNEY GENERAL’S OFFICE, 
Baltimore, February 7, 1870. 


To the Honorable, 
The Senate of Maryland : 


GENTLEMEN :—In reply to the request of the Senate that the 
Attorney General should examine the various Acts of Con- 
gress and of Maryland in relation to the National road lead- 
ing from Cumberland, Maryland, to the Pennsylvania Line, 
aud report to the Senate his opinion whether any, and what 
obligations are imposed upon the State of Maryland, to keep 
said road in repair, | have the honor to state the result of 
such examination. 

I find that Pennsylvania, in March, 1831, and Maryland, 
in January, 1832, passed similar Acts relating to the preser- 
vation and repair of that part of ‘‘the Cumberland,’’ or 
‘United States Road’’ within the limits of the said States, 
respectively. The preamble to the Act of each State, recites 
that the road was, in many parts, in bad condition for want 
of repairs; and the preamble to the Pennsylvavia Act, as- 
signs as one of the reasons of the Act, that ‘‘ doubts have 
been entertained whether the United States have authority 
to erect toll-gates on said road, and collect toll.’’ Both recite 
that a large proportion of the people of the State are interes- 
ted in the road and its preservation. The provisions of the 
two Acts are in most particulars similar, and in many iden- 
tical. The Maryland Act provided that as soon as Congress 
should assent, the road ‘‘shall be taken under the care of the 
State of Maryland,’’ and that the State should appoint a 


4 


“‘superintendent of that part of the United States Road within 
the limits of the State of Maryland ;’’ authorized the erection 
of toll-gates and toll-houses ; the appointment of toll-gather- 
ers; prescribed rates of toll, and provided that the amount of 
toll, after deducting expenses of collection, &c., should be ap- 
plied to the repairs and preservation of the road. 

It further provided that if there should be any surplus 
money arising from tolls after paying repairs and all expen- 
ses, 1t should be paid into the Treasury of Maryland, to be 
denominated on the Treasury books ‘‘The United States Road 
Fund,’’. which fund should be applied solely to the repair 
and preservation of the road. 

It was further provided that the Act should have no force 
until Congress should assent to it, and until the road in 
Maryland should be put in complete repair by an appropria- 
tion by Congress to repair the same and to erect toll-gates 
and toll-houses. The State reserved the right to change, 

alter or amend the Act so as to regulate the amount of tolls 
not below or above a sum necessary to pay expenses incident 
to the preservation and repair of the road, and to compensate 
agents, Wc. 

Congress, by the Act of July, 1832, made an appropriation 

for repairs and improvements on the road east of the Ohio 
River, and to carry into effect the provisions of the aforesaid 
Acts of Pennsylvania and Maryland, to which said Aets the 
assent of the United States was thereby given, ‘‘to remain i 
force during the pleasure of Congress.’’ The Acts were di- 
rected to be printed and appended to the laws of that session 
of Congress. 

Further appropriations, by Congress, for repairs, were 
made in 1834 and 1835, conditioned that the States through 
which the road passed should accept the surrender of the 
road within their respective limits, and that the United States 
‘should not thereafter be subject to any expense in relation 
to the said road.’’ The State of Maryland, by chapter 203, 
of 1835, ‘‘accepted the surrender,’”’ &c. 

By the first mentioned Acts of Pennsylvania and Mary- 
land, it was stipulated that no tax should be received or col- 
lected for the passage of any wagon or carriage laden with 
the property of the United States, or any military stores be- 


5 


longing to the United States, or to any of the States of the 
Union. A similar provision was contained in the Ohio Law 
of 1831, upon the same subject. In several cases the con- 
struction of the compact thus entered into between the United 
States and the said several States in relation to this road was 
drawn in question, and adjudicated by the Supreme Court of 
the United States. (Searight vs. Stokes e¢ al,—3 Howard, 151; 
Neil, Moore & Co. vs. the State of Ohio—3 Howard, 720; 
Achison vs. Huddleson—12 Howard, 293.) 

The result of the decisions was, jirst: That the United 
States, dy the compact, was exempt from any expense, di- 
rectly or indirectly, in maintaining the road. 

Secondly. That the States accepting the surrender of the 
road within their respective limits, proposed to take the road 
‘‘and keep it in repair from the tolls collected upon %t,’’ ex- 
empting the United States mail coaches and other property 
of the government from any toll. 

Thirdly. That by the terms of the compact the States were 
to regulate the tolls, from time to time, sorely with reference 
to raising a revenue sufficient to pay expenses and keep the 
road in repair. 

In Searight vs. Stokes, the Supreme Court says: ‘‘But in 
interpreting these contracts, the character of the parties, the 
relation in which they stand to one another, and the objects 
they evidently had in view, must all be considered.’’ The 
Cumberland Road had been constructed by the Federal Gov- 
ernment, with the assent and authority of the States through 
which it passed, as ‘‘the great line of connection between the 
Seat of Government and the Western States and Territories 
affording a convenient and safe channel for the conveyance 
of the mails, &c.’’ It was at that time a great national tho- 
roughfare, and the tolls authorized were deemed ample to 
keep it in repair. Ofcourse the contract must be construed | 
in reference to circumstances under which it was made, and 
not with reference to the changes which nearly forty years 
have wrought. 


I am therefore of opinion that in accepting a surrender of 
the road within the limits of this State, no obligation was 
incurred by the State to expend any money in keeping the 


6 


road in repair, except what could be realised from the tolls 
collected upon it. The assent of the United States to the 
Acts of the States, in 1832, was not unconditional and irre- 
vocable, but by its terms, was only ‘‘to remain in force 
during the pleasure of Congress.’’ Aud in the Act of 1835, 
Congress stipulated only for the condition that, in accepting 
the surrender, the United States should not be subject to any 
expense in keeping it in repair ; thus leaving the States to 
keep it in repair, as best they might, by the collection of 
tolls. 
I have the honor to be, very 
Respectfully, your ob’t. serv’t, 
ISAAC D. JONES, 
Attorney General of Maryland. 


se Tie li ciel a a) dN Mo IER OMAN? 
ri ae “4d PN Tae 


cep ge 
a 


Digitized by the Internet Archive 
in 2010 with funding from ; 
_Lyrasis Members and Sloan Foundat | 


ee 
si | 


apa sipatyewigeal 
el id LA 

tee nr Om Mapai 

Sh rhc ears soa 

: te sesehcpon 


Py 


