Middlesex Turnpike Co. v. Freeman

Sherman, J.

The plaintiffs insist, that the judgment of the court below is erroneous, because the sum tendered was insufficient, and contend, that they were entitled either to the *9025 cents, pavable.by the charter on “ a four.wheeled pleasure . ' \ - 1 or to 12\ cents, by virtue of the. statute of 1827. The defendant, on the other hand,, insists, that his vehicle is "a w^gon>” otl which a toll of.10 cents is payable, by the charter ; and that this toll has not been altered, by any subsequent act or grant.

The question first presented for the consideration of the court, is, within .which, if either, of these-.provisions of the charter, this vehicle was included, anterior te» the statute of 182,7. The next inquiry will'be, whether that statute has varied the rights, of the plaintiffs.

The first question depends on the description of the vehicle given in the plea, compared with the words, of the- charter. This vehicle is certainly “a four-wheeled, pleasure carriage.” This has been settled, by decisions of our supreme court, in cases less clear than .this ; and its particular structure, as set forth in the plea, is admitted by the demurrer. -According to that description, it, is also a wagon. As it is strictly within both, descriptions, by which shall the toil be regulated ?

In construing statutes and written instruments, where a general and a specific description embrace the same thing, it is considered as within the latter only, if confined to one. For instance, the words “four-wheeled pleasure carriage,” embrace coaches, barouches, and a great variety of other vehicles. But if this charter, after imposing a toll of 23 cents on all-four-wheeled'pleasure carriages,'had prescribed 20 ceñís as the toll on every phaeton, there would be no doubt that the phaeton thus specified, would be subject to the 20 cents, and not to the 25 cents mentioned in the general clause, although within its language. For the same.reason, the imposition of 10 cents on each wagon, excludes the vehicle in question, from the same general clause. Every wagon, whether for business or pleasure, is within the words of the specific provision, which imposes a toll of 10 cents; and consequently, is not liable for the 25-cents under the general clause. Any improvements in the form or use of wagons, which have been made since the date of the charter, do not vary its construction or effect, although they may have furnished just cause for additional legislation.

For these reasons, we consider this carriage as liable, by the charter, to a toll of 10 cents only. The plea of the de-*91fondant is, therefore, sufficient, unless the plaintiffs are entitled to a larger toll, by the statute of 1827.

That statute provides, that '‘in ail cases where the toll for a one-horse wagon is not specifically prescribed, by the charter, or any subsequent grant, of any turnpike incorporation in tiiis state, the toll.fbr each wagon, the body not hung 5n springs 'of iron or steel, drawn by one horse, &c. shall be 6⅜ cents, at each gate where full toll is payable : provided, that for four-wheeled carriages, drawn by one horse, and the body hung on springs of iron, steel or leather, and generally used as a pleasure carriage, the same sums shall be paid as for a chaise."” • The toll on a chaise is 12⅜ cents, the sum demanded by the plaintiffs, in the second count. The vehicle.in question is a one-horsé wagon. This sort of wagon is not specifically named in the charter. It is, consequently, within the statute of 1827.' This statute regulated the toll■ in all such cases, as far as it could take effect under-that provision of the constitution of the United States, which disables the several states from passing any law impairing the obligation of contracts. As no power is reserved in this charter to repeal or vary any of its provisions, the statute was inoperative'in regard to the rights of the plaintiffs, unless assented to by them. But it enabled the plaintiffs to elect to take the toll of 12^ cents, in each of the instances stated in the declaration. But this statute of 1827 was repealed, by an act of 1838. It is insisted, however, by the plaintiffs, that it was revived, by a repeal of the latter act, by a statute of 1839, and was in force at. the times when the plaintiffs' demands arose. This w ¡uld be true, and would entitle the plaintiffs to recover 12⅜ cents for each passage of the -defendant’s wagon through their gate, were not the.last act inconsistent with that provision of the statute on which the plaintiffs rely. The statute of 1839 hot only repeals the act of 183S, but prescribes that “the toll’on all one-horse wagons, whether hung on springs or not, shall be 6⅜ cents, at each gate where full toll is payable, and 3 cents where half toll is payable, and no more.” There was, therefore, no public statute in force, at the times'when the tolls in. question became due to the plaintiffs, by which a greater toll was payable on one-horse wagons, of any description, than is prescribed in the statute of 1839. But as that statute is not shewn to have been assented to, by the plaintiffs, they are still *92entitled to the toll prescribed by their charter; and that th® defendant tendered.

It has been contended, that the statute of 1839 is not inconsistent with the provisions on which the plaintiffs rely, in the act of 1827. It extends to those cases only, in which the toll for a one-horse wagon is not specifically prescribed, “by the charter or subsequent grant of any turnpike or bridge incorporation and it is insisted, that the act of 1827 is such a grant to this and all other turnpike companies, and is, therefore, not reached by the act of 1839. But, by “the charter or subsequent grant of any turnpike or bridge incorporation,” is not meant a general statute law, but a special grant to some particular corporation.

Further, the act of 1827, which reduced part of the toll on one-horse wagons, was void as to the plaintiffs, until it had their assent. This does pot appear to have been given until after the act of 1839 ; and that act, by prescribing anew toll, would have repealed the first, if that of 1838 had never been enacted, ^n short, the law on which they claim the toll demanded in their second count, was twice repealed — -if that were possible — before they assented to its provisions.

We affirm the judgment of the superior court.

!|n this opinion the other Judges concurred.

Judgment affirmed.