Important Decision. — At our Sup’r Court now in session, Judge Norwood presiding, came on the trial of an Indictment, State vs. the Captain and Agent of the John Walker Steam Boat, for an Assault and Battery, alleged to have been committed by them on a person employed by the Agent of the Cape Fear Navigation Company, in assisting him to enforce the collection of Tolls, by a seizure of the Boat. A verdict was rendered for the State subject to the opinion of the Court, on a case agreed. The facts, so far as we could gather them, were these:
The Collector of the tolls, who is also the general Agent of the Company, had demanded the tolls due by the Boat, on merchandize brought up the river from Wilmington to Fayetteville, at a point below Campbellton Landing, which had been designated by the Company as the place where tolls should be collected, and which was well known to the Captain of the boat. The boat refused when hailed to come to, but proceeded on her voyage, until she arrived at the wharf, her usual place of discharging her cargo. The collector went on board the boat immediately, the next morning, accompanied by force, he again went on board to enforce the collection, by a seizure with intent to sell the boat for the dues then unpaid. He was resisted by the Defendants, and the assault and battery was committed which was the subject of the Indictment.
The case turned principally upon the Constitutionality of that part of the charter, which gives to the Company the right of enforcing the collection of the Tolls by a seizure and sale of the Boat. A variety of questions arose in the progress of the cause, involving the true construction of the act of 1815 (the act incorporating the Company;) and whether if the Legislature had a right Constitutionally to grant such a power, the authority had been regularly exercised. For it was admitted that if the Legislature had power to pass the Act, and the provisions contained in it, had been strictly pursued, the Collector was justified in his entry upon the Boat, and the Defendants would be Guilty.
It was contended on behalf of the Defendants, among other things, — that the Boat could not be seized for the tolls due on the merchandize conveyed in her: — that the right to exact tolls accrued to the Company, only from the use of the Canals, Locks, and Sluices, and as there were no artificial constructions of this description on the Cape Fear, between Fayetteville and Wilmington, tolls could not be demanded for using the ordinary navigation of the river: — that if the seizure was not made before the boat passed the point designated for the collection of tolls, she could not be seized after she had been suffered to pass, and had arrived at her place of destination: — and that as the Act incorporating the Cape Fear Navigation Company, had copied certain sections, and re-enacted them, of the Roanoke Charter, and in the clause of that Act authorizing the collection tolls had designated “a point at or near the Falls on Roanoke” and no other, the Cape Fear Company was confined to that place, and would be held to a strict construction of her powers, as to the time, place, and manner, in which the franchise granted to her, should be exercised.
On all these points, his Honor Judge Norwood was against the Defendant. But on the main question, whether the act of incorporation, as to this remedy given for collection, did not contravene the Bill of Rights and the Constitution, he agreed with the Defendants, and gave judgment in their favor. His Honor remarked, that in his opinion the Legislature had transcended their authority, in conferring on the Company a power to collect their tolls by a seizure and sale, as it had the effect of constituting them Judges in their own cause, and enabled them to ascertain for themselves the amount of their demand, and issue execution for their debt, without affording to the other party an opportunity of controverting their claim, or contesting its lawfulness, either as to the sum demanded, or the manner of enforcing it. — That he had no doubt that it was competent for the Legislature to have directed a seizure of the Boat, on a failure to pay the tolls, if it had taken care to have secured to the Boat owner some mode by which he might have had his defence heard and passed upon. If for instance, it had allowed the party whose property was seized to replevy , and upon giving security at appear to the County Court, where he might have an issue made up, and tried by a Jury, before he was divested of the possession of his property, it would have clearly been within the constitutional scope of the Legislature. But as by this summary made of proceeding, the right of Trial by Jury had been in fact, and virtually denied to the defendants, the Law, so far as this particular remedy was concerned, was unconstitutional, and therefore void. The Judge also noticed argument which had been urged for the prosecution, that the State , being largely interested as a joint corporator, and having assumed to herself by the act of 1823, the entire control and management of the improvements on the river, and deriving from it a considerable revenue for the support of Government, might direct the mode in which that revenue should be collected, in the same manner, as she enforces any other branch of taxation. But in reply, he denied that the State had any right to delegate her sovereignty in this particular to any individuals, — that she could not authorize any corporation, whether public or private, to collect money to be expended upon other than public purposes; — and that her interest in the Company constituted her no more than an individual private corporator.
We do not pretend to give any thing more than a mere outline of his Honor’s argument. The case, we understand, will go up to the Supreme Court, and its final decision will settle the law upon a point, which it is important to the rights of the Company which it is important to the rights of the Company and the Boat owner, should be clearly understood.
[Carolina Observer – Tuesday Evening, May 15, 1832]