Conklin v. Elting

Headnote

No action lies against a toll-gatherer, for the penally, under the 13th section of the “ act to establish a turnpike corporation for improving and making a road from Satisbu-ry,in the state ofConnccticul, to the Susque-hannah river, at or near Jericho,n for detaining and exacting toll from a person who is exempted by the, 10th sec. of the same act/ from the payment of toll. The section of the act creating the penalty, relates only to the of-fence of unreasonably hindering or detaining tra-vellers or passengers who arc obliged ta pay toll, or for taking more toll from them than is established by the act. It does not apply to persons who have a right to pas® toil free.

On certiorari. The defendant in error brought an action of debt against the plaintiff in error, in the court below, to recover the penalty of 25 dollars, given by the 18th section of the “act to establish a turnpike corpora- “ tion for improving and making a road from the west “ line of the town of Salisbury, in the state of Connecticut, “ to the Snsquehannah river, at or near the town of Jeri- “ c/io.” The act declares, “ that if any toll-gatherer shall “ unreasonably delay or hinder any traveller or passenger at “ any of the gates, or shall demand or receive more toll “ than is by the act established, he shall, for every such “ offence, forfeit and pay 25 dollars, to be received by, “ and for the use of the person so unreasonably detained “ or hindered.” (L. N. Y. vol. 3p. 120.) The plaintiff, in his declaration before the justice, alleged, that the defendant, as toll-gatherer of the said company, incorporated by the said act, on the Sth'of January, 1807, at the town of Kingston, did unreasonably delay and hinder the plaintiff, at one of the toll-gates on the said road. The defendant pleaded nil debet. The defendant in error was a farmer, residing in the town of Hurley ; and his farm consisted of different parcels of laud, among which were two wood-lots, at a place called Beaver hill, in the town of Hurley. He had been in the practice for many years of going to his wood-lots, to make- posts and rails for the use of his farm ; and a road had long been open between his dwelling-house and the same wood-land; part of which road is included in the turnpike. On the 5th of January, 1797, he was going from his house to the said wood-land, and on coming to the toll-gate on the turnpike road, he informed the plaintiff in error, that he was going to a part ofhis farm, for the purpose of procuring posts and rails, which was the common business of his farm, and demanded to pass through the gate,

free 0f toll, pursuant to the provision in the 10th sectionofthe said turnpike act, which declare s, “ that no“thing in the said act shall be construed to entitle the said “ corporation to demand toll of and from, any person go- “ ing to or from his common business on his farm or saw- “ mill,” &c. The plaintiff in error refused to let the defendant in error pass, until he paid the toll, and actually detained him ten minutes, until the toll was paid. Judgment was given in the court below in favour of the plaintiff, for the amount of the penalty and the costs.

1. The offence or act for which the penalty is claimed, in the plaintiff’s declaration before the justice, is for hindering and detaining; but in the act of incorporation, the words are, “ if any toll gatherer shall unreasonably hinder or detain.” The plaintiff is bound to declare in the very words of the act. A person may be detained without being hindered, and nice versa, so that two distinct acts or offences may exist. This being a penal action, the court will adopt a strict construction. From the facts disclosed on the return, the defendant in error was not entitled to the exemption he claimed. The words of the proviso are, “ going to or from the common business on his farm” Going to procure posts and rails, cannot be considered as the ordinary business of a farm, more than carrying the produce of it to market. The obvious intention of the act is, that wheat a toll gate is placed on the farm of a person, so as to divide one part from another, he shall be allowed to pass to and fro, on his farm, without paying toll. Separate and distinct parcels of land are not, in this view, to be considered as one farm; for if that were the construction, a person might have two pieces of land, at the distance of twenty miles from each other,' which he might call his farm. 2. If the defendant in error be confined to his farm, he cannot be considered as a traveller or passenger, A person going from his house to his

stable, or from his plough-land to his wood-land, on his farm, cannot be considered as a traveller or a passenger, within the meaning of the act. 3. The act does not subject the toll gatherer to any penalty for taking toll, from persons who are exempted. The penanlty ted is for taking more toll than is established by the act. To demand and receive toll from a person exempted, is an infringement of his right to a free passage, for which an action on the case will lie, for the damage, or to recover back the money exacted ; and such action must be brought against the corporation, not against the toll gatherer. Again, as the toll gatherer may not know whether the person who demands a free passage through the gate, be entitled to the exemption, or not, he must be justified in detaining such person, until he can be satisfied as to the validity of his claim. In the present case, a detention of ten or fifteen minutes cannot be considered an unreasonable delay for that purpose.

The defendant below was going from one part of his farm to another part. There is no reason why a farm may not consist of distinct and separate párcels of land. The procuring of posts and rails to make fences, seems to be a part of the usual and ordinary business of a farm. It is as necessary to secure the fields from the intrusion of cattle as to do any act of husbandry whatever.

It is not easy to conceive how a person can be delayed without being hindered, or hindered without being delayed, The words are obviously used in the same sense. In another part of the act, a penalty is given for defacing and injuring the mile-stones set up on the road. The words are meant as describing one offence : it never could be the intention of the legislature to create two of-fences, or that a double penalty should be recovered for the same act. If the plaintiff below could not be considered as a traveller, he was at least a passenger.—

Talcing toll from a person exempted, is taking toll nóü authorized by the statute, and for this act the toll gatherer is made subject to a penalty.