
    *The State of Ohio v. Neil and Moore.
    'The act of the general assembly of the state, exacting toll upon passengers carried by mail stages on the Cumberland road, in Ohio, is constitutional.
    The action is brought to recover of the defendants, who are mail contractors, certain amounts of toll claimed by the plaintiff to be imposed by the laws of the state on passengers in coaches, .in which the defendants conveyed the United States mails.
    The general assembly, on February 4, 1831, passed an act providing that, whenever the consent of Congress should be obtained to that act, the governor should be authorized to take the National road under his care, and erect toll gates, and collect tolls at a certain rate therein specified; with a proviso, that no toll should be •collected for the passage of any stage coach conveying the United States mail, or horses bearing the same. Section 15 provides that it shall be lawful for the general assembly, at any future session, without the consent of Congress, to change, alter, or amend said act, but no alteration shall be made so as to reduce or increase the rates of toll established below or above a sum necessary to defray the expenses incident to the preservation and repair of said road, to the erection of toll gates thereon, and for the payment of the fees or salaries of the superintendent, the collector of tolls, and such other agents as might be necessarily employed in the prosecution and repair of the road, according to the true intent and meaning of the act.
    An amendatory act was passed on June 14, 1832, with the same clause of exemption from the payment of tolls; and a third statute of March, 1834, declares it to be the duty of every stage driver to repeat at each gate, to the keeper, the number of seats occupied in such stage or coach, and to pay at the rate of four cents for each seat so occupied.
    The declaration avers that a large number of passengers so occupying seats passed the toll gates on said road, and that a large sum of money is due the plaintiff therefor, under the provisions of said law, to wit: the sum of twelve hundred dollars.
    To this declaration the defendants demurred specially, and assigned for cause:
    1. That it did not appear by what authority the plaintiff assessed the tolls in the declaration mentioned. 2. That the act of assembly was not fully set out, and no profert of it *made. 3. That the act imposing the toll is unconstitutional. 4. That it did not appear that the gate keepers demanded the tolls, or that-the stage drivers refused to give an account of the passengers.
    McMahan aud Kennon, for the plaintiff.
    Goodenow and Peck, for the defendants.
   Opinion of the court, by

Judge Wood:

The counsel of the defendants appear to abandon the two first causes assigned, as they do not discuss them in the argument, and the other will, therefore, only be noticed by us. First, then, is the act of the general assembly, imposing this toll, unconstitutional ? Or, in other words, is it a tax on the coach itself, calculated, in its consequences, to impede or obstruct the conveyance of the United States mail? We hold the negative. The coach, the horses, the drivers, and the proprietors, are exempted in express terms. But it is said that contracts for the transportation of the mail were made in reference to the conveyance of passengers. Such may have been the case. The postmaster-general is not authorized, however, to make any contract exempting passengers,' either in coaches or on foot, from the payment of toll. His contracts can. extend only to the mail and the mode of its conveyance. The defendants have the right to the road secured to them by the acts of Congress and of the assembly, free from toll, for such carriages, horses, and attendants as may be necessary to enable them fully to comply with their contracts; but when they attempt to go beyond this, and resort to means to increase their profits not necessarily connected with their contracts, they, like others, are rightfully subjected to the inconvenience of paying the toll which the-convenience of a good road imposes. The proposition can not, we think, be maintained, that passengers are necessary for the conveyance of the mail; and if they are not, a tax on them is, in no light in which the subject can be viewed, a tax on the coach itself, nor calculated in its consequences to impede or obstruct the transportation of the mail.

2. Should the declaration aver that the gate keepers demanded the toll, or that the stage drivers refused to give an *aecount of the passengers ? The act of March 1,1834, provides that there shall be charged and collected, and it shall be the duty of each gate keeper to demand and receive, for the passing such gate, four cents for every person occupying a seat in any mail stage; excepting drivers, agents, and proprietors. The opinion that a demand was necessary must have arisen from the language of this section, but it appears to us only to be directory to the keeper of the gate. It is his duty to make a demand; but suppose he does not, is not the toll collectible? We think it is. But if he make such demand, it does not follow that it must be averred in the declaration and proved on the trial, for the very next section of the act provides that the stage drivers shall report at each gate, to the keeper, the number of seats occupied, and shall pay at the aforesaid rate, and in default thereof, the keeper shall charge the proprietors at the rate aforesaid. Con'strue both, these sections together, and there is a complete legal liability bypassing the gates, without the number of passengers reported to the keeper and paid for by the driver, and a demand is unnecessary. The demurrer is sustained.  