The opinion of the Court was delivered by

A question has been raised in the present case, whether the Act of Assembly of this state, passed on the 13th of June 1836, requiring wagons, &c., carrying the United States mail, with passengers or goods, on the Cumberland road, to pay half toll, was not a violation of the compact previously made between the United States and this state, by virtue of the Act of Assembly passed on the 4th of April 1831, and the Act of Congress of the 3d of June 1832. The court below held that it was, and decided on that account, in addition to another ground taken, that the plaintiff could not recover. If we should now affirm the judgment of the court below, there would be no power to remove the cause to the Supreme Court of the United States for decision —a power which we think ought to be provided, considering that the question is how far a law of this state is in conflict with the Constitution of the United States, or an Act of Congress, and that it is one of considerable importance to the government of the *167United States and to the states of Pennsylvania, Maryland, and Virginia. For this reason, we deem it our duty to reverse this judgment, without expressing an opinion on the point, further than to direct a venire facias de novo, in order that the cause may be put in such a shape as that a writ of error may be taken from our future judgment to the Supreme Court of the United States. This can only be done by the court below charging the jury, on another trial, in favour of the plaintiff, and this court affirming that judgment.

Independently of this point, the defendant contends that this action can not be maintained, because another remedy is given by the Acts of Assembly, which ought to have been pursued; and the suit cannot be brought in the name of the plaintiff, and there was no assumpsit to pay.

Had there been another remedy for the tolls, provided by the Acts of Assembly, the case of The Turnpike Company v. Brown, (2 P. R. 462), might perhaps have ruled the present case. The question, however, does not arise under the Act of 1831, but under the Act of 1836; and this latter Act provides no remedy, in express terms, for the collection of these tolls. It is argued as if the remedy provided by the Act of 1831 were necessarily incorporated into the Act of 1836 : but we are by no means satisfied that it is. No toll was levied on the mail-wagons by the Act of 1831: it was by the Act of 1836 these were first leviéd. Is it reasonable to infer, although the legislature have not said so, that they intended, when they passed the Act of 1836, that these tolls on the mail-stages should be enforced by stopping the mail-stages at the toll-gates, in case the right of the state to levy this toll should be contested? We think not: and the reason which operates upon us is, that knowingly and wilfully to obstruct the passage of the mail, is an offence made penal by Act of Congress. The State of Pennsylvania, in levying a disputable toll, would hardly authorize a proceeding which might bring its toll-gatherers within the penalty of an Act of Congress, when there was no necessity for so doing, as the tolls could be recovered by suit, and when, if the Act of Assembly .were unconstitutional, it would furnish no defence to the toll-gatherers for obstructing the mails under it. It was the wisest and most prudent course for the legislature to take, to impose the toll, and let it be collected by an action at law, in which the rights of all could be examined in a civil proceeding, without prejudice, and without inconvenience to those who had no interest in the matter. We, therefore, think the remedy to collect the tolls by stopping the wagons containing the mails, is not to be considered as introduced into the Act of 1836, and that the action lies on the settled principle, that where a sum of money is directed by statute to be paid, and no remedy is provided, action lies at common law to recover it.

It is further said that the suit does not lie, because it is brought *168in the name of the commissioner, and he is not authorized to sue. It is not pretended that it could be brought in the name of the toll-gatherers, as they are confined to the receipt of toll at the gates. The person to sue must naturally and properly be the officer or commissioner who is at the head of this public trust and whose duty it is to receive the tolls and apply them to the uses for which they are received. It cannot be the commonwealth that is to sue; for the money is not to go into the state treasury: it is to be employed only for certain specific purposes, connected with the duty of the commissioner. By the Act of 1831, the commissioners (who are now reduced to one) were to build toll-houses and erect gates, and appoint the toll-gatherers. By section 2 they were authorized to commute the tolls by taking an annual sum in lieu thereof. By section 3 the toll-gatherers were to settle with the commissioners, and pay over to them, on demand, the amount of tolls collected, and the commissioners were to account in the Court of Quarter Sessions. By section 4 the amount of tolls, after deducting expenses and charges, was to be applied, under the direction of the commissioners, to the repairs and preservation of the road. By section 9 suits for penalties may be in the names of the commissioners, without naming them as individuals; and by section 2 of the Act of 13th of June 1836, the commissioners may sue for the penalties there imposed.

It thus appears that the commissioner is the commonwealth’s directing, as well as fiscal agent, in relation to this road, with large powers and authorities for its care and management, and with the trust of disbursing the tolls receivable. He stands, as it were, in lieu of a corporation — one sole manager, doing what, in ordinary corporations, is done by a board of managers. The precedent cited, Pigott v. Thomson, (3 Bos. & Pull. 147), illustrates this point. The corporation in that case was head — the treasurer subordinate: the treasurer, therefore, could not sue without express authority from the statute. Not so here. The office of commissioner concentrates in itself all the usual powers of managers and treasurer, and, therefore, he may, on principles of analogy and convenience, maintain the suit. The mere circumstance of trustees being the persons to whom money is directed to be paid, has, in some instances, béen held sufficient to enable them to sue for it. See Comfort v. Leland, (3 Whart. 84), where the cases are collected and compared by Mr Justice Kennedy.

It is alleged there was no assumpsit to pay, but on the contrary the defendant positively refused to pay. Acts speak louder than words. He who uses the road and passes the gates, (with no view to evade or defraud) assumes to pay the legal tolls, though he might declare a thousand times he would not pay them. The defendant’s declarations amount only to a claim of his right to go free, so that he might not be bound beyond his legal liability. So *169far he has the benefit of them; but farther than that the argument is without foundation.

Judgment reversed, and venire facias de novo awarded.