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Jones v. Estis

2 Johns. 380 Court N.Y. Sup. Ct. English

Contents

Majority

p. 379
Jones against Estis.

Headnote

The act for establishing a turnpike road from Cherry Valley to the Chenango River, gives no penalty agaiust the toll gatherer, for taking toll from persons exempted by the act from the payment of toll A penalty must oe created by express words, and cannot be raised by implication i
ON certiorari. The plaintiff below brought an action of debt against the defendant below, to recover the penalty of five dollars» for not permitting the plaintiff below to pass free of toll, through the turnpike gate sX Middle-field, on the turnpike road established from Cherry Val: ley to Chenango River, by an act passed the 4th April, 1801. A witness for the plaintiff below proved, that the defendant below was the toll gatherer at the gate, and that the plaintiff informed him, that he had been from his home at Duanesburgh to De Ruyter, for the purpose of attending public worship, and for no other purpose or business, and demanded liberty to pass toll free, as returning from public worship, and so exempted by the act; but the defendant below obliged him to pay toll before he would allow him to pass. Upon this testimony the justice gave judgment for the plaintiff below, for the amount of the penalty.
Henry, for the plaintiff in error.
The 6th section, of the act, establishing a turnpike road from Cherry Valley to Chenango,[1] refers to the act for improving the road from Hudson to the Massachusetts’ line,1' and confers on the corporation the same powers and privileges, and subjects it to the same restrictions and regulations as are contained in the last mentioned act; and the rates of toll allowed to be taken are declared to be the same as allowed to the corporation for improving the road from Water Vliei to Cherry Valley ‡ The reference to the Water Vliet turnpike act, is merely for the rates of tolls, and nothing is said of any penalties ; if by the general words of reference, as to restrictions and regulations totheHudson turnpike act, the penalties are included, then there is error, for the penalty in that act is only two dollars; but, I contend, that a penalty must be created by express words, and cannot be raised by implication.
p. 380
Metcalf, contra,
contended, that as the reference was to the whole subject relative to tolls in the Water Vliet act, it necessarily comprised the penalty imposed on the toll gatherer, for receiving more toll than is established by that act.

The penalty of five dollars, in the Water Vliet turnpike act, is clearly not imposed. The Cherry Valley act, by establishing the like rates of toll as in the Water Vliet act, did not thereby establish the penalties imposed in the latter act. We are also inclined to think that no penalty was imposed, even by the reference to the Mudsoji turnpikeact, but that the present is a casus omissus. There is nothing said in the Cherry Valley act about penalties, and a penalty cannot be raised by implication, but must be expressly created and imposed.

Judgment reversed,

Footnotes

  1. † † L. JY. Y. v. 2. p. 396.398. ‡ L. JY. F v. 2. p. 3S0.394. 395.