Clark's Run & Salt River Turnpike Road Co. v. Commonwealth

JUDGE HAZBLRIGG delivered the opinion of the court. This action, in the nature of a quo warranto, was brought by the Commonwealth to prevent the exercise of a right claimed by the appellant to maintain certain toll-gates on its road at a distance less than five miles apart. By its answer the appellant justified the erection and maintenance of the gates upon the ground that it had the right to do so by virtue of the provisions of its charter, or if, upon a strict construction of the language, it might not have such right, yet that this right has been exercised continuously for more than thirty years, and had been acquiesced in by the State and the public for that length of time without complaint, and that this construction of the provisions of the charter asserted continuously and uninterruptedly for so long a time, itself fixed a practical interpretation of these provisions, and established a right in the company in the — 528 — nature of a right by prescription, now too late to call in question. A demurrer to this answer was sustained by the lower court, and the company declining to plead further, a judgment of ouster was rendered. We learn from the record that one end of the company’s road begins on the line between Maiion and Boyle counties, and thence running eastwardly through the latter county for some sixteen miles, passing-through the village of Parksville to the city of Dan ville. That a gate was erected at or near the beginning point indicated; another about six miles distan L therefrom, at a point one mile west of the village named; another about three-fourths of a mile east o f that village, and another about a mile west of Dan-ville, the last one being aboiit six miles from the gate east of Parksville. That the two gates immediately east and west of Parksville were established in the year 1860, and had been maintained continuous^ at the same places since that time, and that each of them was what is generally known as a half gate, and only half toll was collected thereat, the other two gates being full or whole gates. That there was, therefore, practically but three whole gates on the sixteen miles of road. There is no complaint that too much toll is charged at any gate, but the maintenance of the two near the village is alleged to be greatly to the annoyance and bother of the citizens and travelling public generally. Upon the subject of the erection of toll-gates, section 5 of the charter of the appellant, adopted in 1848, provides as follows : “When the gate or gates shall »be — 529 — ■erected, it shall and may be lawful for the president and directors to appoint as many toll-gatherers as they may deem requisite, and to collect and receive of every person ■ or persons using said road, at each toll-gate, for each and every five miles they may use or travel on said road, the same rate of tolls as is collected on the Danville, Lancaster, &c., turnpike road.” This is the only reference to toll-gates in the appellant’s charter, though, as we shall presently see, certain sections of another charter are referred to and made part of the act of incorporation. By this provision it can not be said that the gates are required to be five miles apart. When erected, as many toll-gatherers as might be deemed requisite were to be appointed to collect at each gate, from* every person, the same rate of toll for each and every five miles of road used or- traveled over as was collectible by a certain other company. It is at least an admissible construction to say that under the language used the gates might be erected at any points, provided that tolls were to be collected of each person at a designated rate for each five miles of the road used, and this could be done without regard to the distance the gates were apart. This was the construction of the provisions of the charter adopted by the incorporators and officers of the company some thirty-four years before this suit was brought, questioning for the first time the correctness of the interpretation; and this construction was acquiesced in, and, in effect, adopted, by the public and the officers of the State and county for the length of time mentioned. We say acquiesced in and adopted by these because there are ample provisions punishing the company and its — 530 — agents and employes for collecting illegal tolls, both, under the charter and under the general law, and it is not to be- supposed that the public and the officers cognizant of the facts would have remained inactive save for the belief that the right to so maintain the gates in question was authorized under the company’s charter. We have, therefore, a construction adopted and continuously acquiesced in for more than thirty years by the incorporators and officers of the company who procured the law, and who were charged with its execution, and by the public, who were largely interested in the question, and by the officials of the State and county who were charged with the duty of preventing a violation of the law, including the illegal collection of tolls. We are referred, however, to the chaxker of the Danville & Hixstonville Turnpike Boad Company, adopted in 1844, axxd referred to as part of appellant’s charter. This charter provides that, “So soon as five miles of said road, continuously, shall be completed, thre’e justices of the peace * shall be called on to exámine the work, and if they shall certify that said road is made in conformity with the provisions of this act, the certificate shall be recorded in the office of the county coxxrt of said coxxnty, and the president and directors may cause a toll-gate to be erected across said road, and may collect tolls and duties hereinafter granted,” &c. In case such disinterested justices could not be found, then commissioners shoxxld make the examination, “and if it shall be their opinion that the road, or any five miles of it, at any one part, is completed according to the provisions of this act, their — 531 — report shall be recorded in said circuit or county court, and the judge or court shall enter of record how many gates the company may erect; whereupon, it shall be lawful for the company to erect a toll-gate for every five miles of turnpike road they have so completed, at any one time, and at such places as to them may seem most eligible.” This is hardly more explicit than the provisions of the appellant’s charter proper. Of course, five miles of the road must have been completed before any gate could be erected, but when the road, or “any five miles of it,” at any one part, was completed according to the provisions of the act, the judge or court was directed to enter of record “how many gates the company may-erect,” and it was lawful for the company to erect a toll-gate for every five miles of completed road “at sueh places as to them may seem most eligible.” The petition alleges that “ said highway extends in length fifteen or more consecutive miles in the county of Boyle,” &c. So, for aught we learn from the pleader, there are four gates- on fifteen or more 'miles, and this may not be in violation of the charter even as construed by the appellee. If we were called on to construe these acts without regard to the construction adopted by all concerned some thirty odd years ago, we might readily agree with the appellee. What we conclude is, that the construction contended for by the appellant is not an ■ inadmissible one, and, in view of this contemporaneous interpretation of the meaning of the acts, and the long and — 532 — continued usage under the law by those claiming a right under it, we think their construction the proper one. Mr. Pomeroy says: “The practical construction given to the statute by the public officers of the State, and acted upon by the people thereof, is to be considered, and is, perhaps, decisive in cases of doubt.” (Note to Sedgwick, p. 227.) In United States v. Pugh (99 U. S., 269), it is said: “It is a familiar rule-of interpretation, that in the case of a doubtful and ambiguous law, the contemporaneous construction of those who have been called upon to carry it into effect is entitled to great respect.” In Barbour v. City of Louisville, 83 Ky., 95, this rule is fully recognized, and the meaning of language hardly to be deemed ambiguous was controlled by the construction put on it by those who procured the law under consideration, and who were charged with its execution. In Collins v. Henderson, &c., 11 Bush, 74, considerable stress was laid upon the light in which a law was received and held by the contemporary members of the profession. It is not necessary to notice minor errors in the judgment complained of. For the reason indicated, the judgment is reversed for proceedings consistent with this opinion.,