which the court repeated plaintiffs' theory of criticised instruction were the contracts claimed the transactions, stated the rules of law governing the question as to when a contract was void as a wagering or gambling contract, and the facts necessary to be proved to the satisfaction of the jury before they could properly return a verdict to that effect. These instructions embraced a half dozen paragraphs of the charge, one paragraph in particular being very lengthy, and cover more than a page and a half of the printed record. The exception noted to this part of the charge was, "that there is nothing in the pleadings, evidence, or record in this action to support or justify the theory of the plaintiffs stated by the court in this part of its charge here excepted to; that the portion of said charge here excepted to is prejudicial to the defendant and is misleading to the jury, is er ror in the charge and error in law on all the evidence and facts in the case." The assignment is without merit. As all the evidence is not shown to be contained in the record, we must assume that there was evidence in the case tending to support plaintiffs' theory of the case stated by the court. The exception is moreover too general, uncertain, and indefinite to merit detailed consideration. Assignment No. 14 asserts that the court erred in giving the following instruction: "I might say to you here that if you find from the evidence that any of these contracts had been offset under the rules and regulations as prescribed by the Board of Trade of Chicago, offsets between persons and dealers connected with that board through whom these 408] plaintiffs operated, that is *not evidence of their illegality. The mode of settlement of bona fide coutracts for the sale of actual wheat does not affect the validity of the contract if the original intention was to purchase, receive, take, and deliver the actual wheat at the time specified when the contracts were made." The exception taken to this instruction was "that the offsets and modes of settlement stated and referred to in the part of the charge here excepted to belong to the jury as proper and competent evidence, to be considered by them in determining the entire intentions of the plaintiffs in respect thereto, and as affecting and showing the original intention with which to have been entered into by plaintiffs on ac count of defendant with members of the Board of Trade at Chicago. Just before giving the instruction the court had said to the jury: "These memoranda which have been offered in evidence and the entries on the plaintiffs' books of these contracts are not conclusive evidence of their character. You are to determine what these contracts were; you are to determine them from the evidence in the case; you can look into the transactions themselves as [409 disclosed by the evidence and determine from the facts and circumstances attending their making and the conduct of the parties thereto with reference to them whether they are illegal within the rule laid down, or whether they are bona fide contracts for the purchase and sale of wheat to be delivered at a future time." In determining the conduct of the parties to the contracts with reference thereto, particularly in view of other instructions of the court, wethink it beyond question that the jury must have understood they were authorized to take into consideration the modes of offsets and settlements by which the contracts were canceled. We do not think the instruction was amenable to the criticism made on behalf of defendant. The greater part of the brief of counsel for plaintiff in error is devoted to argument in support of the contention that upon the undisputed evidence in the cause a verdict should have been directed for defendant. Aside from the circumstance to which we have before called attention, that the bill of exсер tions does not purport to contain all the evidence introduced at the trial, this contention is fully answered by what we have said above in disposing of the 1st assignment of error. We are of opinion, however, that the instruction covered by the 9th assignment of error was erroneous. The instruction is as follows: "9. Now, if you find from the evidence that the plaintiffs about April 29, 1889, informed the defendant by letter that the 40,000 bushels of May wheat in question could be at that time changed to June wheat, and that the defendant made no answer thereto, and if you further believe from the evidence that said May said contracts were made and were to be exe- | wheat was changed over into June, for and on cuted and closed; that said charge here excepted to characterizes said evidence as no evidence and virtually takes the same from the jury; that said charge here excepted to is prejudicial to the defendant, is misleading to the Jury, and is otherwise error in law." account of defendant, and that the plaintiffs rendered an account, a report, and statement to defendant that said change had been made, and the defendant received such report and statement and retained it, and made no objec tions to said change of said May wheat to June, then such facts amount to and were a ratification on the part of defendant of the acts of the plaintiffs in making such change." *The exception taken to this instruc- [410 tion was, "that the evidence in the case did not justify the finding by the jury that 'said May wheat was changed over into June wheat for and on behalf of the defendant,' and that the statement and form of the part of said charge excepted to is prejudicial to the defendant, and for error in law." We are referred by counsel for plaintiff in error, in his brief, to the language of the exception, as his argument upon this assignment. The court had informed the jury what was the theory of plaintiffs upon which they claimed a right to recover. (See 10th assignment of error, supra.) Pursuant to their theory plaintiffs contended that the purchases and sales of wheat on account of the defendant were to be made on the Chicago Board of Trade with the members thereof, and the contracts of defendant were to be governed by It was not claimed that Boyd & Bro. had a the rules and usages of such board, and that, general authority, by virtue of their dealings in every instance, an actual delivery of wheat with Hansen, to make the so-called transfer; was intended. The contracts referred to in the, and, just preceding the instruction quoted, the court had called the attention of the jury to simple calculation. The rule has been adopted the fact that there was conflict in the evidence by this court that it is proper, either for the as to whether or not specific authority had been given to make it. Hansen was in default trial court upon an application for a new trial, or for an appellate court in reviewing a judg for margins on the purchase of May wheat, the price of the article had fallen very greatly, and on April 29, 1889, Boyd & Bro. had the right to close out the contract. The instruction assumes that Boyd & Bro. and Hansen were so situated with reference to each other-as was the fact that power could have been obtained from Hansen to make the purchase of June wheat, if he had wished to give the authority, and that the authority was asked for and was not given. Under such circumstances, we are of opinion that the unauthorized voluntary act of Boyd & Bro. could not be said, as a matter of law, to have been rati fied by Hansen by his mere retention, without complaint, of an account and statement rendered to him "that said change had been made," or, in other words, that Boyd & Bro. had made a new purchase for his account. In Marshall County Supers. v. Schenck, 72 U. S. 5 Wall. 772, 782 [18: 556, 559], this court said: "Ratification may be by express consent, or by acts and conduct of the principal inconsistent with any other hypothesis than that he approved and intended to adopt what had been done in his name." The mere retention by Hansen of a report that an unauthorized purchase of 40,000 bushels of wheat bad been made on his account was entirely consistent with the hypothesis that he did not approve and did not intend to adopt what he had previously declined to authorize. The mere silence of Hansen was certainly not necessarily indicative of an intention to adopt the 411] unauthorized act of Boyd & *Bro., and it was therefore insufficient of itself to warrant an instruction that it constituted in law an adoption of such act. The question of whether the evidence established ratification should have been submitted to the jury. ment, to permit the party in whose favor a verdict or judgment has been returned or entered to avoid the granting of a new trial on account of error affecting only a part thereof, by entering a remittitur as to such erroneous part, when the court can clearly distinguish and separate the same. Koenigsberger Richmond S. Min. Co. 158 U. S. 41 [39: 889], and cases cited, p. 53 [893]; Phillips & C. Const. Co. v. Seymour, 91 U. S. 646, 656 [23: 341, 345]. Following the practice pursued in the last cited case, and also in Washington & G. R. Co. v. *Tobriner ("Washington & G. R. Co. v. [412 Harmon") 147 U. S. 571, 590 [37: 284, 291], we will not reverse the judgment below, if the defendants in error will remit the excess therein in the particulars heretofore indicated, that is, the loss on the purchase and sale of the June wheat ($1,300), the commission charged in that transaction ($50), and interest on those items from June 8, 1889, to the date of the verdict. Ordered, that if the defendants in error will within a reasonable time during the present term of this court file in the circuit court of the United States for the district of Minnesota a remittitur of such excess, and produce and file a certified copy thereof in this court, the judgment, less the amount so remitted, will be affirmed; but, if this is not done, the judgment will be reversed. In either event the costs must be paid by defendant in error. Mr. Justice Brewer, not having heard the argument, took no part in the decision of this cause. UNITED STATES, Appt., v. The 15th assignment of error covers an instruction to the jury that if facts and circum- JANE L. STANFORD, Exrx. of LELAND stances introduced in evidence by the plaintiffs which tended to show that the order for the transfer of May wheat to June wheat was STANFORD, Deceased. (See S. C. Reporter's ed. 412-434.) given, in connection with a number of other Liability of stockholder of Central Pacific Rail recited facts, were found by the jury to exist, they would constitute a ratification. In view of our holding with reference to assignment No. 9, it will be unnecessary to review this last assignment. We find, therefore, that there is error in the record solely with reference to the instruction contained in the 9th assignment of error, that if certain facts were found by the jury, the defendant should be held to have ratified the purchase on April 29, 1888, of 40,000 bushels of wheat for June delivery. The question arises as to the proper judgment to be entered. The plaintiffs below recovered judgment for the full amount of their claim. The June wheat purchase and sale were distinct and separable from the other transactions upon which a recovery was had. The amount of loss arising from the purchase and sale of this wheat, including the commission charged by Boyd & Bro., is clearly ascertainable from the evidence contained in the record, while the interest road Company. A stockholder of the Central Pacific Railroad Com. pany of California is not liable to the United NOTE.-As to liability in equity of the stockholders to the creditors of an insolvent corporation for the unpaid amounts due on their stock; liability on new shares issued after claim of creditor arose; capital stock is trust fund; payment for stock, how made, see note to Handley v. Stutz, 35: 227. As to individual liability of stockholders for corporate debts, see note to Hatch v. Dana, 25: 885. As to liability of trustees of manufacturing, mining, etc., corporations or associations, under Nero York statute, for not filing report, -see note to Chase v. Curtis, 28: 1038. Individual liability of stockholders for corporate debts; liability contractual; limitations; repeal of statute imposing liability; damages for torts; effect of transfer of stock; during what time liability exists; judgment against corporation. Where the statute provides that the proportion debtedness shall be the same as the proportion of | N. Y. 818; Mills v. Stewart, 41 N. Y. 384; Brundage thereon embraced in the judgment is matter of of the stockholder's liability to the corporate inThe deceased held and owned a large number of the shares of the capital stock of the Argued January 28, 29, 1896. Decided March Central Pacific Railroad Company of Califor2, 1896. States, in proportion to the stock owned and held by him, for the principal and interest of bonds received by the company from the United States under the Pacific Railroad acts of Congress, since the liability depends upon those acts rather than upon the state law, and by them the railroad company is given all the rights and privileges of, and made subject to the same terms and conditions as, the Union Pacific Railroad Company, and the only security which was stipulated for is a lien by way of mortgage on the property of the corporation, without imposing any personal liability upon the stockholders for any claim of the United States. [No. 783.] Messrs. J. M. Dickinson, Assistant Attorney General, and Holmes Conrad, Solicitor General, for appellant. Messrs. Joseph H. Choate and Russell J. Wilson for appelle Mr. Justice Harlan delivered the opinion of the court: The United States seeks by this suit to establish a claim against the estate of Leland Stanford for $15,237,000. nia, and the Western Pacific Railroad Company-corporations that were organized under were consolidated became the cific Railroad Company. APPEAL from a decree of the United States the laws of California, and which subsequently Court of Appeals for the Ninth Circuit affirming the decree of the United States Circuit Court dismissing a suit brought by the United States against Jane L. Stanford, executrix of Leland Stanford, deceased, to establish a claim against the estate of the latter as a stockholder in the Central Pacific Railroad Company for moneys due the United States by reason of an obligation of said company to pay and reimburse to the United States the principal and interest of certain bonds. Afirmed. See same case below, 70 Fed. Rep. 346. Those companies received bonds of the United States that were issued under the acts of Congress known as the Pacific Railroad acts in aid of the construction of a railroad and telegraph line extending from the Missouri river to the Pacific ocean. The present demand of the government arises out of the obligation which, it is alleged, rested upon the companies receiving such bonds to pay the principal at maturity and to reimburse the United States for all interest paid thereon. his shares to the whole number of shares, the payment by him of his part relieves him from further liability. Adkins v. Thornton, 19 Ga. 325; Belcher v. Wilcox, 40 Ga. 391; Jones v. Wiltberger, 42 Ga. 575; Branch v. Baker, 53 Ga. 502; Crease v. Babcock, 10 Met. 525; United States v. Knox, 102 U. S. 422 (26: 216). Up to this limit a creditor of the corporation may enforce his whole claim against a single stockholder. Larrabee v. Baldwin, 35 Cal. 155; Lane v. Morris, 8 Ga. 468; Lane v. Harris, 16 Ga. 217; Bank of Poughkeepsie v. Ibbotson, 24 Wend. 473; Hatch v. Burroughs, 1 Woods, 439; Young v. Rosenbaum, 39 Cal. 646; San José Sav. Bank v. Pharis, 58 Cal. 380; Morrow v. San Francisco Super. Ct. 64 Cal. 383. Where a bank's charter contained this proviso: "Provided also that the stockholders in this corporation shall be individually liable to the amount of their stock for all debts of the corporation, "-the stockholders are each individually liable to pay to the creditors of the bank, not merely the balance unpaid upon subscriptions for stock, but also to the extent of the nominal or face value of the stock held by them, for debts of the bank. Root v. Sinnock, 120 Ill. 350, 60 Am. Rep. 559. "A liability to an amount equal to their stock" is generally held to render stockholders liable for a sum equal to their full subscription after the latter has been paid, and is equivalent to the phrase "to double the amount of the stock held by them," which creates a liability for twice the amount of the subscription. Wheeler v. Millar, 90 N. Y. 359; United States T. Co. v. United States F. Ins. Co. 18 N. Y. 199; Ohio L. Ins. & T. Co. v. Merchants' Ins. & T. Co.11 Humph. 1, 53 Am. Dec.742; Lewis v. St. Charles County, 5 Mo. App. 225; Briggs v. Penniman, 8 Cow. 887, 18 Am. Dec. 454; Perry v. Turner, 55 Mo. 418; Matthews v. Albert, 24 Md. 527; Norris v. Johnson, 84 Md. 485; Schricker v. Ridings, 65 Mo. 208; Gay v. Keys, 30 Ill. 415. But a provision for liability "to an amount equal to the amount unpaid on the stock" imposes no obligation to pay beyond par value. Patterson v. Lynde, 106 U. S. 519 (27: 265); Stephens v. Fox, 88 v. Monumental Gold & S. Min. Co. 12 Or. 322; Ladd v. Cartwright, 7 Or. 329. In some instances each stockholder is made liable for all debts of the corporation. Patterson v. Wyomissing Mfg. Co. 40 Pa. 117; Marsh v. Burroughs, 1 Woods, 463. The usual liability of stockholders imposed by statute, viz., an absolute obligation to pay, is generally held to be contractual. Lowry v. Inman, 48 N. Y. 126; Paine v. Stewart, 33 Conn. 516; Bond v. Appleton, 8 Mass. 472, 5 Am. Dec. 111; Hutchins v. New England Coal Min. Co. 4 Allen, 580; Grand Rapids Sav. Bank v. Warren, 52 Mich. 557; Hodgson v. Cheever, 8 Mo. App. 321; Manville v. Edgar, 8 Mo. App. 324; Freeland v. McCullough, 1 Denio, 414, 43 Am. Dec. 685; Aultman's Appeal, 98 Pa. 505; Sackett's Harbour Bank v. Blake, 3 Rich. Eq. 225; Woods v. Wicks, 7 Lea, 40. This species of liability accordingly falls within the provisions of a statute fixing the limitation for actions on contracts, is enforceable only in a court of law, and generally survives against the personal representatives of a decedent. Howell v. Roberts, 29 Neb. 483; Coy v. Jones, 30 Neb. 789, 10 L. R. A. 658; Corning v. McCullough, 1 N. Y. 47, 49 Am. Dec. 287; Queenan v. Palmer, 117 111. 619; Richmond v. Irons, 121 U. S. 27 (30: 864), 17 Am. & Eng. Corp. Cas. 71; Irons v. Manufacturers' Nat. Bank, 21 Fed. Rep. 197; Chase v. Lord, 77 N. Y. 1; Manville v. Edgar, supra; Child v. Coffin, 17 Mass. 64; Ripley v. Sampson, 10 Pick. 371; Dane v. Dane Mfg. Co. 14 Gray, 488; Cummings v. Wright, 11 Mo. App. 348; Donnelly v. Hodgson, 18 Mo. App. 15. Where the liability is construed as contractual, statutes imposing it cannot be repealed to the detriment of existing creditors. Hathorn v. Calef, 69 U. S. 2 Wall. 10 (17: 776); Central Agri. & M. Asso. v. Alabama Gold L. Ins. Co. 70 Ala. 120; Provident Sav. Inst. v. Jackson Place S. & B. Rink, 52 Mo. 552; St. Louis R. S. Mfg. Co. v. Harbine, 2 Mo. App. 134: Conant v. Van Shaick, 24 Barb. 87; Woodruff v. Trapnall, 51 U. S. 10 How. 190 (13: 883), The stockholder's liability for "debts" of the corporation includes a claim against it for damages 414) *The bill proceeds upon the ground that by the Constitution and laws of California at the time the above corporations were organized, as well as when they received the bonds of the United States, each stockholder of a railroad corporation was liable, in proportion to the stock owned and held by him, for all of its debts and liabilities, and, consequently, that the estate of Stanford is liable to the United States in proportion to the stock owned and held by him in the corporations named. The principal contention of the defendant is, that the question of the liability of stockholders for the debts and obligations of companies receiving bonds of the United States under the Pacific Railroad acts does not depend upon the laws of California, but is governed by the acts of Congress under which such bonds were issued; that by its legislation in aid of the construction of the Union and Central Pacific rail roads Congress intended to define, control, and regulate the entire relations of the government to all of the companies receiving subsidy bonds without reference to the laws of any state; that those companies were respectively created or adopted as agencies for a great national purpose, in the accomplishment of which they were to be subject to the exclusive control of the general government; that the functions, obligations, and liabilities of all the companies participating in the bounty of the United States were to be equal and identical; and that as to each company the government looked to it alone for the performance of all that the acts imposed upon it, and did not contemplate nor intend that there should be any individual liability of stockholders in respect of the subsidy bonds issued by the United States. If these acts of Congress have the scope and effect attributed to them by the defendant the decree may be affirmed without any expression of opinion by this court upon other questions discussed at the bar, and which, if considered, would require a construction of the laws of California relating to the personal liability of stockholders for the debts of railroad corporations. Was it part of the contract between the United States and the corporations receiving its subsidy bonds that the *stockholders of [415 such corporations, respectively, should be personally liable for the principal and interest of those bonds? Or did the United States make provision in the acts of Congress for all the security intended to be taken for their payment? These questions cannot by answered by referring to any one section of either act, but only by examining the provisions of all of those acts in the light of the circumstances under which the United States made grants of public sounding in tort. Carver v. Braintree Mfg. Co. 2 | 120, 3 Am. & Eng. Corp. Cas. 78; Mandion v. Fire Story, 432; Mill Dam Foundry Proprs. v. Hovey, 21 Pick. 417; Gray v. Bennett, 3 Met. 522; Wyman v. American Powder Co. 8 Cush. 182; Dryden v. Kellogg, 2 Mo. App. 87; Smith v. Omans, 17 Wis. 395; White v. Hunt, 6 N. J. L. 402; Chase v. Curtis, 113 U. S. 452 (28: 1038); Bohn v. Brown, 33 Mich. 257; Cable v. McCune, 26 Mo. 371, 72 Am. Dec. 214: Doolittle v. Marsh, 11 Neb. 243; Heacock v. Sherman, 14 Wend. 59; Archer v. Rose, 3 Brewst. 264; Child v. Boston & F. Iron Works, 137 Mass. 516, 50 Am. Rep. 328; Nanson v. Jacob, 93 Mo. 331; Crouch v. Gridley, 6 Hill, 250; Zimmer v. Schleehauf, 115 Mass. 52; Re Boston & F. Iron Works, 23 Fed. Rep. 880; Losee v. Bullard, 79 N. Y. 404, affirming Esmond v. Bullard, 16 Hun, 65; Kellogg v. Schuyler, 2 Denio, 73. A transfer of stock, if regular and bona fide, redeves the transferrer from liability for unpaid subscriptions. Huddersfield Canal Co. v. Buckley, 7 T. R. 36; Gilmore v. Bank of Cincinnati, 8 Ohio, 62; Cole v. Ryan, 52 Barb. 168; Billings v. Robinson, 94 N. Y. 415; Wakefield v. Fargo, 90 N. Y. 213; Cowles, v. Cromwell. 25 Barb. 413; Isham v. Buckingham, 49 N. Y. 216; Stewart v. Walla Walla Print. & Pub. Co. 1 Wash. 521; Chouteau Spring Co. v. Harris, 20 Mo. 382; Miller v. Great Republic Ins. Co. 50 Mo. 55; Allen v. Montgomery R. Co. 11 Ala. 437; Haynes v. Palmer, 18 La. Ann. 240; Weston's Case, L. R. 4 Ch. 20; McKenzie v. Kittridge, 24 U. C. C. P. 1: Re European Bank, 41 L. J. Ch. 501; Putnam v. New Albany & S. C. J. R. Co. ("Burke v. Smith"), 83 U. S. 16 Wall. 390 (21: 361). Transfers of stock without the required registration, or to irresponsible parties, and those incompetent to hold stock, leave the transferrer still liable. Shellington v. Howland, 53 N. Y. 876; Worrall v. Judson, 5 Barb. 210; Louisiana Ins. Co. v. Gordon, 8 La. 174; Bane v. Young, 61 Me. 160; Fowler v. Ludwig, 34 Me. 455; Davis v. Essex First Baptist Soc. 44 Conn. 582; Kellogg v. Stockwell, 75 Ill. 68; Adams v. Johnson (Bowden v. Johnson"), 107 U. S. 251 (27:886); Bowden v. Santos, 1 Hughes, 158; Provident Sav. Inst. v. Jackson Place S. & B. Rink, 52 Mo. 557; Rider v. Morrison, 54 Md. 429; Central Agri. & M. Asso. v. Alabama Gold L. Ins. Co. 70 Ala. men's Ins. Co. 11 Rob. (La.) 177; Nathan v. Whitlock, 9 Paige, 152; Paine v. Stewart, 33 Conn. 517. Cases holding stockholders liable only for debts incurred during their membership: Moss v. Oakley, 2 Hill, 269; Judson v. Rossie Galena Co. 9 Paige, 598, 38 Am. Dec. 569; Harger v. McCullough, 2 Denio, 119: Tracy v. Yates, 18 Barb. 152; Phillips v. Therasson, 11 Hun, 141; Williams v. Hanna, 40 Ind. 535; Chesley v. Pierce, 32 Ν. H. 388; Larrabee v. Baldwin, 35 Cal. 155; Norris v. Johnson, 34 Md. 485; Norris v. Wrenschall, 34 Md. 492; Fleeson v. Savage Silver Min. Co. 3 Nev. 157; Windham, Prov. Inst. for Savings v. Sprague, 43 Vt. 502. Cases in which those who are stockholders at commencement of action are held liable: Middletown Bank v. Magill, 5 Conn. 28; Deming v. Bull, 10 Conn. 409; Cleveland v. Burnham, 55 Wis. 598; Ripley v. Sampson, 10 Pick. 371; Marcy v. Clark, 17 Mass. 330; McClaren v. Franciscus, 43 Mo. 452; Skrainka v. Allen, 76 Mo. 384; Longley v. Little, 26 Me. 162. The creditor must have obtained a judgment against the corporation with a return of nulla bona before he may sue the stockholder. Dauchy v. Brown, 24Vt. 209; Harper v. Union Mfg. Co. 100 111.225; First Nat. Bank v. Greene, 64 Iowa, 445; Wright v. McCormack, 17 Ohio St. 86; Stewart v. Lay, 45 Iowa, 604; Toucey v. Bowen, 1 Biss. 81; Lane v. Harris, 16 Ga. 217; Drinkwater v. Portland Marine R. Co. 18 Me. 35; Cambridge Water Works v. Somerville Dyeing & B. Co. 4 Allen, 239; Means' Appeal, 85 Pa. 75; Bayliss v. Swift, 40 Iowa, 648; McClaren v. Franciscus, 43 Mo. 452; Wehrman v. Reakirt, 1 Cin. (Ohio) 230; Jackson v. Meek, 87 Tenu. 69; Nimick v. Mingo Iron Works Co. 25 W. Va. 184; Terry v. Anderson, 95 U. S. 636 (24: 367); Walser v. Seligman, 21 Blatchf. 130; Handy v. Draper, 89 N. Y. 334; New England Commercial Bank v. Newport Steam Factory, 6 R. I. 154, 75 Am. Dec. 688; Wetherbee v. Baker, 35 N. J. Eq. 501; Munger v. Jacobson, 99 Ill. 849; Cutright v. Stanford, 81 III. 240; Remington v. Samana Bay Co. 140 Mass. 494; Priest v. Essex Hat Mfg. Co. 115 Mass. 380; Baxter v. Moses, 77 Me. 465, 52 Am. Rep. 783. lands and provided for the issuing of bonds in aid of the construction of a railroad and telegraph line from the Missouri river to the Pacific ocean. By the act of July 1, 1862, entitled "An Act to Aid in the Construction of a Railroad and Telegraph Line from the Missouri River to the Pacific Ocean, and to Secure to the Government the Use of the Same for Postal, Military, and Other Purposes" (12 Stat. at L. 489, chap. 120), the Union Pacific Railroad Company was incorporated with power to lay out, locate, maintain, and enjoy a continuous railroad and telegraph from a named point in what was then the territory of Nebraska to the western boundary of what at that time was the territory of Nevada. That company was given the right of way through the public lands for the construction of its railroad and telegraph line as well as the power and authority to take from those lands adjacent to the line of the road, earth, stone, and timber, and other materials required in the work of construction, and, so far as it was necessary to do so, to occupy the public lands for stations, buildings, workshops, and depots, machine shops, switches, side tracks, turntables, and water stations; the United States to extinguish the Indian titles to all lands falling under the operation of the act and required for the right of way and grants made. "For the purpose of aiding in the construction of said railroad and telegraph line, and to secure the safe and speedy transportation of the mails, troops, munitions of war, and public stores," a large grant of lands was made, for which patents were directed to be issued as each 40 consecutive miles of railroad and telegraph were completed and equipped in all respects as required. §§ 2, 3, 4. The 5th section provided that for the purposes 416] mentioned the Secretary of the Treasury, upon the completion and equipment of 40 consecutive miles of railroad and telegraph, should issue to the company bonds of the United States, of $1,000 each, payable in thirty years after date, bearing 6 per cent per annum interest, to the amount of sixteen of said bonds per mile for such section of 40 miles; and "to secure the repayment to the United States, as hereinafter provided, of the amount of said bond so issued and delivered to said company, together with all interest thereon which shall have been paid by the United States, the issue of said bonds and delivery to the company shall ipso facto constitute a mortgage on the whole line of the railroad and telegraph, together with the rolling stock, fixtures, and property of every kind and description, and in consideration of which said bonds may be issued; and on the refusal or failure of said company to redeem said bonds, or any part of them, when required so to do by the Secretary of the Treasury, in accordance with the provisions of this act, the said road, with all the rights, functions, immunities, and appurtenances thereunto belonging, and also all lands granted to the said company by the United States, which, at the time of said default shall remain in the ownership of said company, may be taken possession of by the Secretary of the Treasury for the use and benefit of the United States." The grants referred to were made "upon condition that said company shall pay said bonds at maturity, and shall keep said railroad and telegraph line in repair and use, and shall at all times transmit despatches over said telegraph line, and transport mails, troops, and munitions of war, supplies, and public stores upon said railroad for the government whenever required to do so by any department thereof; and that the government shall at all times have the preference in the use of the same for all the purposes aforesaid (at fair and reasonable rates of compensation, not to exceed the amounts paid by private parties for the same kind of service); and all compensation for services rendered for the government shall be applied to the payment of said bonds and interest until the whole amount is fully paid." The company was entitled to pay the United [417 States, wholly or in part, in the same or other bonds, Treasury notes or other evidences of debt against the United States, to be allowed at par; and after the road was completed, until the bonds and interest were paid, at least 5 per cent of the net earnings of said road were required to be annually applied to the payment thereof. § 6. The company was required to file its assent to the act in the Department of the Interior within one year after its passage, and it was allowed until the 1st day of July, 1874, to complete its railroad and telegraph through the territories of the United States to the western boundary of the territory of Nevada, "there to meet and connect with the line of the Central Pacific Railroad Company of California." §§ 7, 8. The 9th section authorized the Leavenworth, Pawnee, & Western Railroad Company of Kansas to construct a railroad and telegraph line from the Missouri river, at the mouth of the Kansas river, "upon the same terms and conditions in all respects" as were provided in the act for the construction of the railroad and telegraph line first mentioned, and to meet and connect with the same at the meridian of longitude named; the route in Kansas, west of the meridian of Fort Riley, to the aforesaid point, on the 100th meridian of longitude, to be subject to the approval of the President of the United States, and to be determined by him on actual survey. By the same section it was declared that "the Central Pacific Railroad Company of California, a corporation existing under the laws of the state of California, are hereby authorized to construct a railroad and telegraph line from the Pacific coast, at or near San Francisco, or the navigable waters of the Sacramento river, to the eastern boundary of California, upon the same terms and conditions, in all respects, as are contained in this act for the construction of said railroad and telegraph line first mentioned, and to meet and connect with the firstmentioned railroad and telegraph line on the eastern boundary of California. Each of said companies shall file their acceptance of the conditions of this act in the Department of the Interior within six months after the passage of this act." *The 10th section provided that the [418 company chartered by the state of Kansas should complete 100 miles of its road, commencing at the mouth of the Kansas river, within two years |