Green Mountain Turnpike Co. v. Hemmingway

delivered the opinion of the court. — Two questions arise in this case for the court to determine. 1. If the defendant was entitled to an exemption from the payment of toll, whether he forfeited the penality by forcibly passing the gate, without giving notice of his business and claiming his exemption. 2. Whether from the facts in evidence he really had such exemption.

The first question has been decided by this court in the case cited from 1 Aik. 269, and upon reasons which a majority of us think satisfactory. The penalty in question may be incurred in several different ways, as by demolishing a turnpike gate, digging up the road, or doing any wanton and malicious damage to the same, or by attempting forcibly to pass any gate without having paid the legal toll at said gate. This last is the substantive ground on which the penalty is now claimed. With reference to this ground of forfeiture, the penalty is given to ensure the payment of toll, and not for the preservation of the corporate property which is otherwise protected, inasmuch as an injury to the property is made a distinct cause of forfeiture. A person who has paid his toll, or who is exempt from the payment, is, of course, entitled to pass the gate, and the manner of his passing can have no effect to create that particular forfeiture which arises from the non payment of toll as one of its essential causes. The expressions, “ without having paid the legal toll at said gate,” evidently imply an obligation to pay toll, and, therefore, the penalty can only attach to those persons who are subject to that obligation. — 2 Johns. 410. And we do not think this result is varied by the neglect or refusal of the party to make known his exemption._• This can hardly be deemed a waiver, so long as he does not submit to the demand of toll, but persists in the exercise of his right.

2. It remains to be determined whether in this case the defendant really had the exemption for which he contends. Such a construction should be put upon the act as, if possible, to secure to the corporation all their just rights, and to individuals every specified exemption, keeping in view the temptations to extortion on the one side, and to evasion and fraud on the other. The most common signification of those words in the proviso upon which the defendant relies is doubtless the best. Every person is exempted from toll when going on “ the ordinary domestic *516^us>ness °f family concerns.” Here are several terms of quail-fication, each of which must have its due influence in fixing the construction. 1. The business must be ordinary or common business ; such as does usually require attention, either at frequent intervals, at the return of the different seasons, or upon such occasions of necessity as do commonly, though perhaps un-frequently, occur. In 17 Johns. 33, the defendant owned and carried on two farms near a turnpike gate which was situated between them. He passed the gate with timber and other materials from one farm, to be used in erecting buildings on the other. It was held that he came within the proviso which exempted a person from the payment of toll, when “ passing to or from his common business on his farm.” That case, though very strong, is probably sustainable upon the last distinction above taken. In 2 Pick. 538, the defendant, a farmer, had erected a brick kiln on a part of his farm, where he manufactured bricks for sale. He passed a turnpike gate with wood for the use of his kiln, claiming the benefit of a certain proviso, which exempted from toll a person “ passing with his horse, team or cattle to or from the common labours of bis farm.” It was held clearly that he was not exempted. 2. It must be domestic business ; and 3, It must relate to family concerns. The necessity in these cases of limiting the party, with reasonable strictness, to the kind of business exempted by the act, is very manifest, as the only way to prevent indefinite frauds upon the corporation. And a distinction between the principal business at the time, and that which is secondary or incidental, has been often recognized. — 8 Johns. 116. — 9 Id. 356. — 15 Id. 510. Accordingly we must regard the transportation of materials to repair buildings on the farm in Ludlow, as the Business of the defendant when he passed the gate in July. And we are clear that this cannot, with any propriety, be considered his domestic family business, which must of necessity centre in his home and family at Mount Holly. The result is, that in our opinion the defendant did, in this instance at least, incur the penalty af the act, and that the jury were therefore misdirected.

Judgement of county court reversed, and the cause remanded to that court for another trial.