Myers v. Foster

Headnote

On error from the C. P. of Schenectady county, where the cause came by appeal from the justices’ court of the city of Schenectady, -

a collector on the Erie canal, sued Foster for $25, the penalty given by the 17th section of the act for the maintenance and protection of the Erie and Champlain canals, (sess. 43, ch. 202.) This section requires that every boatman, or person having charge of property mov-*1, , . ,, , , 1 . , xng on the canal, shall give to the collector, &c. a just account or bill of lading, &e. signed by the person, &c. conveying such property, &c. containing a statement of the • Re f 11 / . ,, ,, , weight ot all property on which toll is charged by the ton, &c. and the number and feet of other articles, &c. a state-mentofthe place from which the property is brought, and , , 1 . . , , , , ° ’ where the same is intended to be landed, &c.; and on default in any of these particulars, that the boatman, &e. shall forfeit and pay the penalty of $25. The 20th section authorizes the canal commissioners to establish the rates of toll to be paid on all articles conveyed, &e. and to erect toll houses and weighing scales. The 23d section gives an action for all penalties to the collector, &c.

being master of a freight boat, cleared from Albany, with property and four passengers,

The canal commissioned have atoifupon/SZ ^!?Érs on Champlain ca- stat’. sess. 43, ‡'2$02, s' 17

But the act was amended, and extended ⅞ April 12«⅞, 1827. Vid.note (a) at the end

uteisnottobe extended by an equitable construction’

having paid toll for the property, as established under the 20th section. He afterwards took in one and an half passengers at West Troy ; and at Schenectady, offered to clear the passengers, with 3 1-2 more passengers taken on board at the latter place, (making in all, the number of 8,) to a place about 5 miles above the city, which was done, the defendant furnishing a bill of lading accordingly. 6 1-2 of the passengers were discovered by agents, (whom the plaintiff had employed to watch,) continuing their passage on the boat about ten miles above Schenectady j and it was for the falsity of the bill of lading, in this respect, that the action was brought.

On these facts being proved in the C. P. the plaintiff rested ; and the defendant moved for a nonsuit, on the ground that no toll could be assessed on passengers, by the canal commissioners ; passengers not being property, to which alone the act extended ; and that no assessment on passengers was proved.

The plaintiff then offered in evidence, an establishment of toll, on passengers over 12 years of age by number, and under that age by weight, to be estimated at 751bs. each j signed by Stephen Van Rensselaer, Samuel Young, Henry Seymour and Wm. C. Bouckt the canal commissioners, who claimed in making the assessment, to act under the 20th section.

This evidence was rejected by the C. P. who nonsuit-ed the plaintiff. He excepted ; and brought error to this court on the bill of exceptions.

conceded that passengers were not mentioned specifically by the act as a subject of toll; but he contended that the intent and object of the legislature was to levy a compensation upon every person, as well as upon all property transported upon the canal. Though persons are not within the terms, they are certainly within the reason and equity of the act.— The transportation of passengers occasions the same injury to the canal, and works the same benefit and profit to individuals as the transportation of property.