not release the debt due to the State by any thereby the lien be discharged. That would railroad company. Legislative control over be to destroy the value of the lien. Nor can the debt is left untouched. The provision has it mean that the lien may not be employed to reference only to a security for the debt. Had obtain from the property bound by it, all that 368*] it been intended to put the debt be the property is worth and all that the indebted yond the disposition of the Legislature, it ompany can pay, though that be less than the would be difficult to find a reason for con- entire amount of the debt. It is not a restricfining the prohibition to a release merely of tion upon the power of the Legislature to the lien. But it is easy to see why it should make the most which in its judgment is posbe ordained that while the debt remained, the sible from the security. In terms, the Legissecurity for it should not be given up. And lature is left unrestricted as to the mode of that such was the intention appears quite receiving payment, or settling with its debtors. plainly, in view of the state of things which Composition, accord and satisfaction, and full existed when the Constitution was framed and payment in cash are left within the legislative adopted. Prior to its adoption it may be said discretion, at least so far as the liquidation to have become almost a legislative habit to of the debt is concerned. So there is nothing release the liens held by the State upon rail- in the clause of the Constitution quoted, which roads without discharging the debts. In nu- can be regarded as a restriction upon the merous cases statutes had been enacted, by power of the Legislature to sell any claims which railroad companies were authorized to held by the State against a railroad company. borrow money and to mortgage their roads as It is not an ordinance that the Legislature security for the loans, the State releasing its shall not deal with debts due to the State lien, to give the mortgagees a priority. The from railroad companies as it may deal with purposes for which these releases were made debts due from other debtors. It is that the were various, and they were generally avowed lien shall not be released for any purpose in the statutes. Thus, in 1864, the Legisla- whatever; that is, for the accomplishment of ture released the State's lien upon a part of any object the Legislature might have in view; the Pacific road, avowedly for the purpose of and unless we can hold this means it shall not enabling the company to complete its main be released even by full payment of the debt, road to Kansas City. At the same time the it *can mean no more than this: that [*370 lien of the State on the North Missouri Rail- while the debt remains, the Legislature may road was released for several avowed purposes not let go the security for it. Such a con-to enable the company to complete its main struction accounts for the peculiarity of the road to the Iowa State line; to enable the language employed. There is a very palpable company to construct its west branch; and to distinction between the lien which the State enable it to build a bridge across the Missouri holds upon a railroad and the debt, obligaRiver. And again, in 1865, February 16, the tion or duty which the lien was created to seLegislature released the first lien of the State cure. The two could not have been confounded upon the road of the same company for the by the framers of the Constitution. If it was same purposes, retaining, however, a second intended that, under all circumstances, every lien. All this took place very shortly before dollar due from a railroad company should the Constitution was adopted. That such re- be exacted, and that no settlement should be leases were contemplated when the convention made, or sale authorized, without payment of framed the constitutional inhibition, and when the uttermost farthing, it is incredible that the people ratified it, can hardly be doubted. the Constitution would not have so declared. The Constitution was plainly intended to pro- That such was not the intention is plainly hibit them and, therefore, language was em-shown by the Railroad Ordinance adopted with ploved denying the power to release the lien, the Constitution, and a part of the organic and saying nothing of the debt. Certainly law of the State. By that ordinance the there is no expressed restriction of legislative Legislature was authorized and directed to power over the debt itself. If any exists it must be supplied by implication. Keeping in mind, then, that the constitutional prohibition is directed only against a release of liens, 369*] what *should be regarded as its meaning? We agree it is not to be frittered away by doubtful construction, but like every clause in every constitution it must have a reasonable interpretation, and be held to express the intention of its framers. It must be held to have been intended for the public protection, for the preservation of the public property, and to make available claims the State held against railroads. But if it is to be construed reasonably, and in accordance with what must have been the intentions of those who adopted it, it cannot be construed literally. It cannot mean that the lien of the State upon a rail road shall not be released upon full payment of the debt, to secure which the lien was created. If it does, it is equivalent to a prohibition against the State's receiving payment. Surely it will not be contended to deprive the Legislature of power to make use of the lien to enforce satisfaction of the debt, though sell the railroads on their failure to pay a mean ing has been determined by the Supreme Court, receipts, for two years, and fifteen per centum of Missouri. (Advis. Const. Opin. Sup. Ct., 371*] 37 Mo. 129.) The 5th section of the ordinance does, indeed, require that no railroad or other property or franchise purchased by the State shall be restored to the company in default until it shall have first paid in money, or in Missouri state bonds, or in bonds guarantied by the State, all interest due from said company, and requires that all interest coming due thereafter shall be paid semi-annually in advance; but even this is no assertion that such a restoration shall not be made for a sum less than the original indebtedness. Whether it may or not it is unnecessary to decide, for the provision applies only to a case where the road has been sold, and where the State has become the purchaser, which is not this case. thereafter, until the principal and interest of the bonds for which the companies were liable should be fully paid. Then followed the 4th section, as follows: "Should either of said companies refuse or neglect to pay said tax as herein required, and the interest or principal of any of said bonds, or any part thereof remain due and unpaid, the General Assembly shall provide by law for the sale of the railroad and other property, and the franchise of the company that shall be thus in default, under the lien reserved to the State, and shall appropriate the proceeds of such sale to the payment of the amount remaining due and unpaid from said company." There is nothing in this which takes away from the Legislature the power to determine the time, the manner or the price of the sale which it was directed Neither the clause in the body of the Con- to cause to be made. It is true the sale is stitution, therefore, nor any provisions of the ordered to be made under the lien reserved Railroad Ordinance forbid the Legislature to to the State, referring, doubtless, to the mortsell the railroad, or compromise the debt gage taken under the Act of 1851, and it is claimed by the State, for less than the entire also true that by that Act it was enacted that indebtedness. It follows, then, that though if either of the companies to which bonds the Legislature had no power to release the might be issued should make default in the lien while the debt remained, it was not pro- payment of either principal or interest of the hibited from selling the claim or commuting said bonds, the *Governor might sell [*373 the debt. And there is no inconsistency in their road by auction, giving six months' nothis. The Legislature may well have been tice, or buy it in for the use of the State, trusted with the management of the obligation, but these provisions were no part of the lien. responsible only to its constituents, while the They were means specified for enforcing it. security for the fulfillment of the obligation The Legislature was at liberty to provide may have been withdrawn from its control. A trustee may have no right to give up a security for a claim, and yet be at full liberty to settle and adjust the claim itself or to sell it. It need hardly be added that if the Legislature had power to accept a commutation of the claim of the State, or to sell the debt for what in its judgment it deemed best for the public interests, it had also power to make a formal relinquishment of the lien after the debt had been liquidated. The constitutional provision was not designed to continue in exis-stitution ordains that "No law enacted by the tence liens that the law had extinguished. For these reasons we hold that the 5th section of the Act of the Legislature of March 31, 1868, was not in conflict with that provision of the Constitution which forbids, for any purpose whatever, a release of the lien held by the State upon any railroad. other means of collecting the debt and enforcing the lien. The sale directed by the ordinance was for nonpayment of the tax imposed, and the direction to sell under the lien reserved was simply an order to proceed to collect the mortgage. The lien is not to be confounded with proceedings for its foreclosure. Finally; it is insisted by the appellants that the 5th section of the Act of 1868 is unconstitutional because its subject is not embraced in the title of the Act, and because the Con General Assembly shall relate to more than one subject, and that shall be expressed in the title; but if any subject be not embraced in the title, such Act shall be void only as to so much thereof as is not so expressed." The title of the Act of 1868 is "An Act for the Sale of the Pacific Railroad, and to Foreclose the State's Lien Thereon, and to Amend the Charter Thereof." That the subject of the 5th section is embraced in this title is very apparent. If the subject is not the foreclosure of the State's lien, it is impossible to say what it is. And we think it cannot be justly said the Act embraces more than one subject. It has many details, but they all relate to one general subject, which is the sale of the railroad and the foreclosure of the State's lien thereon. Cooley, Const. Lim., 141, et seq. We cannot sustain this objection. 372*] *Nor do we perceive that there is any conflict between it and the Railroad Ordinance. The appellants insist that the ordinance forbids any sale of a defaulting railroad except at public auction, for a price equal to the full amount of the debt of the defaulting company, and without a reservation of a lien upon the property sold, not merely for the unpaid part of the purchase money, but for all that remains unpaid of the debt for which the property is sold. Such is not our reading of the ordinance, nor is it that of the Supreme Court of the State. We have already said that the lien required to be reserved is only to secure the unpaid balance of the purchase money. This is too clear for argument. It is equally clear to us the ordinance does not require that the sale shall be for a price equal to the whole debt, or that it shall be at public auction. The 1st, 2d and 3d sections impose upon each of three railroad companies, of which the Pacific Railroad Company is one, an annual tax of ten per centum of the gross *The $5,000,000 paid to the State [*374 Nothing, then, in our judgment, warrants the conclusion that the 5th section of the Act of March 31, 1868, was not a legitimate exercise of the legislative power of the General Assembly of the State. It follows that the arrangement made in pursuance of it with the Pacific Railroad Company, and the deed of the Governor to the company, extinguished the debt due to the State and, consequently, put an end to the lien. were raised upon bonds of the company and Mr. Justice Miller, dissenting: views. Missouri. The railroad companies felt that if their roads were to be made capable of accomplishing the purpose of their creation, all their means and all their credit must be devoted to repairing and rebuilding the roads and refurnishing the rolling stock. The railroad companies and that part of the people of the State who felt a stronger interest in the roads appealed to the generosity of the Legislature to relieve the roads from the burden of the debt to the State. Those who believed that the credit of the State and the relief of the people from the burden of excessive taxation were of paramount importance, thought the State should relieve herself as far as possible by enforcing her lien at the expense of the stockholders, and by sale of the roads, realize all they would bring and, of the State, diminish to that extent [*376 appropriating this to the payment of the bonds the taxation necessary to pay the interest on her large public debt. It was in the midst of the discussion of this question that the members of the Constitutional Convention of 1865 were elected, and in the face of the difficulties which it presented that the Convention assembled. They took cognizance of the matter. They understood that they were expected to adopt some plan of relief, and whatever plan was adopted must be based mainly, if not exclusively, on one or the other of the two propositions We are now called upon to we have named. give judicial construction to what they did and, by all the rules of sound interpretation, it must be done in view of the condition of affairs which their action was intended to relieve and of the public sentiment which they intended to represent. For many years previous to the late civil war the principal railroads in the State of Missouri had been the objects of the special The appeal for leniency to the railroad comcare of the people, and had received large pe- panies had many and able advocates, and was cuniary aid from the State. This aid had warmly urged by them, and assisted by all been given at various times and in divers the appliances which that class of corporations sums, in the shape of the bonds of the State, use with so much effect. The Legislature had to the extent, in the aggregate, of $25,000,000 in several instances released liens altogether or more. For these sums, which were treated on some roads, and had postponed liens to let as loans, the railroad companies had consented in subsequent ones, thus showing what might to statutory liens in the nature of mortgages, be expected of that body. with conditions to pay the bonds of the State, interest and principal, as they fell due. If the terms of the loan were not precisely as I have stated in all cases, they were substantial ly so, and any variations in special instances do not affect the question under consideration. The State of Missouri was, almost as much as any State in the Union, the seat of the worst calamities of that war. Its people were divided among themselves; regular armies marched and countermarched over its soil, and each side used or abused the railroads to their utmost capacity when within their control. 375*] But, above all, the local guerrilla *warfare, to which the disputed control of her territory and the divided allegiance of her people subjected them, was the cause of immense destruction and damage of her railroads. These companies, therefore, emerged from the war with their roads in a state of repair which hardly admitted of use, and the rolling stock so deteriorated that new supplies were indispensable. Their credit was low, their means exhausted, and their property apparently worth but little. They were unable to meet their obligations to the State, and were largely in arrears for the interest on the state bonds. The State itself was in little better condition. To the heavy burdens of increased taxation, imposed by the Federal Government to support the war and pay its debt, was now added the necessity of paying the interest on the large debt of the State incurred in aid of the railroad companies. It was very clear then, it is equally clear now, looking alone to what was incorporated into the constitution by that Convention, that it wholly rejected the idea of leniency to the railroad companies, and that its sole care was to conserve the pecuniary interest of the State. As the Constitution stood when the Conven tion assembled it was in the power of the The question forced itself upon the people of the State and the railroad companies: what is to be done in this emergency? The people of the State felt the injustice, in their overburdened condition, of being called on to pay, without aid from the corporations, the debt incurred for their benefit, and this hardship was not diminished by the consideration that It seems to me strange that this provision the roads were owned and controlled by stock should be the subject of a divided opinion as holders, very few of whom were citizens of to its meaning. The release here meant could not have been the execution of a technical instrument called a release. No such absurdity can be imputed to the Convention, because if the debt was paid, or otherwise discharged, so that the lien no longer existed, the making of such an instrument was of no value to any one. The thing prohibited was the discharge or remission in any shape of the specific lien which the State had on the roads for the repayment of the bonds she had advanced or foaned to the companies. To make this more emphatic all power whatever on this subject was taken away. No pressing exigency, no motive, however pure or generous, and no consideration even of pecuniary wisdom in which the Legislature might indulge, or believe, was to justify this discharge of the lien which the State held as security for her advances. How can it be maintained in the face of this; that while the Legislature could not release from motives of grace, and for the purpose of a gratuity, it could release on a purpose of compromise by accepting one third or one half of the debt secured by the lien? If one third could be accepted, then one tenth. If five millions could be accepted when ten were due, then five dollars could be accepted. It is to be borne in mind that we are considering the constitutional power of the Legislature to release the lien, and on this question we are not at liberty to consider whether it acted wisely or reasonably. If they could release at all, or for any consideration, the court cannot say they have exceeded their power. But the Constitution seems to place all this beyond question by saying: it shall not have any power whatever to do this thing. The work of the Convention was, however, to be submitted to a vote of the people. If it received a majority of the votes cast, it became the fundamental law of the land. Other wise it passed for nothing. Other propositions were submitted separately, and might be 378*] adopted or rejected without hazarding the whole instrument. But so important did the Convention deem this provision that they put it into the body of the new Constitution, so that the latter could not be adopted without including the former. If, however, the question of releasing the road from its debt to the State was thus settled in the negative, there still remained the question of the present enforcement of the lien by sale or otherwise. This question was left by the Convention to a vote of the people in a separate ordinance, which might be adopted or rejected without defeating the Constitution itself, but which, if adopted, became part of the Constitution. "Whenever the State shall become the purchaser of any railroad or other property, or the franchises sold, as hereinbefore provided for, the General Assembly shall provide by law in what manner the same shall be sold for the payment of the indebtedness of the railroad company in default; but no railroad or other property or franchises purchased by the State shall be restored to any such company until it shall have first paid, in money or in Missouri State bonds, or in bonds guaranteed by this State, all interest due from said company, and all interest thereafter accruing shall be paid semi-annually in advance; and no sale or other disposition of any such railroad or other property or their franchises shall be made without reserving a lien [*379 upon all the property and franchises thus sold or disposed of, for all sums remaining unpaid; and all payments therefor shall be made in money or in the bonds or other obligations of this State." The manner in which this ordinance was a vote put to the people is significant. The ballot The sale or disposition here spoken of had reference to a sale to other parties than to the defaulting company. And even in that case the ordinance provided that none should be made which did not secure the State for all her liabilities on account of the road. The clause can have no other meaning but this, though it is ably argued that it means such part of the consideration of the new sale as may be on credit. But, taking the constituBoth the Constitution and this ordinance tional provision, the prohibition in the ordiwere submitted at the same time, and both were nance against a restoration of the roads withadopted and became part of the fundamental out payment of what is due, and security law of the land at the same time. This ordi- for what is to become due, it seems to me nance throws a flood of light on the intention of the men who framed the Constitution in hardly to admit of a doubt that, in no event, adopting the section we have just discussed. was the road to pass from the control of the State without security against any loss by It imposed a tax of ten per cent. on the gross receipts of the three principal roads from Oc- reason of these bonds. But however this may be, tober, 1864, to October, 1868, and fifteen per the constitutional prohibition *against [*380 cent. thereafter; to be devoted to the payment releasing the lien; the provisions of the ordiof the principal and interest of the bonds nance for the levy of a loaned by the State; and it required that if gross receipts; the direction for a sale if it either of said companies neglected or refused was not paid, and the two provisions against to pay said tax, the General Assembly should restoration to the same company until full provide by law for the sale of that road. The payment, indicate to my mind the unmistaka5th section of this ordinance is as follows: ble determination of the Convention and the severe tax on the RAILROAD COMPANY, Plff. in Err, people that the companies should, in the lan- THE EVANSVILLE & CRAWFORDSVILLE guage of the prescribed ballot, "pay their bonds"-pay them in full-or lose their roads, their property and franchises. The answer made to all this is, that while the Legislature could not release the lien it could remit the debt. That while it could not restore the road to the same company after the State had bought it in, it could sell to the company the debt which that company owed the State at any price it chose. That while the State could not release the lien by any legislative Act, it could compromise or sell the debt, and thus defeat, destroy or part with that lien. で。 THE ANDROSCOGGIN MILLS. (See S. C., 22 Wall., 594-604.) Construction of contract of carrier-railroad 2. The cotton having been destroyed by fire on It is said if the Convention intended to prohibit the Legislature from dealing as it chose with the debt, it could easily have said so, invention had said that the Legislature shallIN ERROR to the Circuit Court of the United stead of using the word "lien." If the Con- Submitted Nov. 18, 1874. Decided Nov. 30, 1874. States for the District of Indiana. Suit was brought in the court below by the defendant in error, to recover the value of thirty bales of cotton, lost by fire, in transit. The fire occurred between Columbus and Evansville. The bill of lading which constituted the contract is set forth in the opinion. The case is further stated by the court. Judgment having been given in favor of the plaintiff, the defendant sued out this writ of error. have no power to discharge the debt without full payment, it could then be argued with much more force that the lien might be released though the debt could not be touched. On the other hand, so long as the lien remained the debt must remain, for there could be no lien without the debt. It seems to me, therefore, that the Convention used the stronger and better term, the one which included both, and which expressed precisely what they meant namely: that both the debt and the lien of the debt should remain inviolate except by payment. If there could be any doubt of this, Mr. Asa Inglehart, for plaintiff in error: the form of submission of the ordinance on It is insisted that the answer is not good which the people voted, that the "roads should because, by the express terms of the bill of pay their bonds," makes it too clear for dispute. lading, the undertaking of the plaintiff in erBut of what avail are constitutional restric- ror is to carry from Evansville to Boston, tions of legislative power, or legislative re- and the exceptions being confined to the constrictions of municipal power, if they are disre- tract to carry the goods between the points garded by the Legislatures and municipalities? mentioned, the allegation that the loss occurred It may be said that there remains to the before the goods reached Evansville does 381*] people the protection *of the courts. not bring it within the exception. In other But language is at best a very imperfect in- words: the exception, being confined and limstrument in the expression of thought, and ited to a contract for carrying from Evansthe fundamental principles of government ville, cannot be extended to a loss of the goods found in constitutions must necessarily be while in the possession of the carrier before declared in terms very general, because they must be very comprehensive. they reached Evansville, and the common law liability attaches. But this argument proves The ingenuity of casuists and linguists, the too much. It is conceded on all hands that nice criticism of able counsel, the zeal which the exception is co-extensive with the contract springs from a large pecuniary interest, and for carriage in the bills of lading; if, therefore, the appeal of injured parties against the bad the exceptions do not apply to losses before faith of the Legislatures who violate the Constitution are easily invoked, and their influence persuasive with the courts, as they always must be. And if language as plain as that we have been considering, a purpose so firmly held and clearly expressed, is to be frittered away by construction, then courts themselves become but feeble barriers to legislative will and legis lative corruption, and the interest of the people, which alone is to suffer, has but little to hope from the safeguards of written constitutions. These instruments themselves, supposed to be the peculiar pride of the American people, and the great bulwark to personal and public rights, must fall rapidly into disrepute if they are found to be efficient only for the benefit of the rich and powerful, and the absolute majority on any subject will seek to enforce their views without regard to those restrictions on legislative power which are used only to their prejudice. My brother Davis concurs in this dissent. the goods reached Evansville, neither does the contract for carrying extend there, and hence, the answer is clearly good, for there is no pretense of any right of action except upon the contract contained in the bill of lading. Messrs. Charles Denby and Jas. M. Warren, for defendant in error: "The responsibility attaches from the moment of the receipt." Fland. Ship., sec. 198. Contracts to forward goods from one place to another and distant place, subject the party as common carrier for the whole route, although his own transportation line extends only part of the distance, and the loss occurs on a portion of the route on which he is not interested. NOTE. From what liability a contract, that a common carrier is not to be responsible for loss or damage, will exonerate-see note to N. J. Steam Nav. Co. v. Merch.'s Bk., 12 L. ed. U. S. 344. Liability of common carrier for goods to be transported beyond its terminus see note to R. Co. v. Mfg. Co., 21 L. ed. U. S. 297. |