1. The act 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,"
approved July 1, 1862, 12 Stat. 489, after providing for the
issue of patents for land and of bonds to the Union Pacific
Railroad Company and other companies from time to time, as
successive sections of their respective roads should be completed,
requires the companies to perform all government transportation of
mails, troops &c., and to credit the compensation therefor on
the government loan, and then adds that
"after said road is completed, until said bonds and interest are
paid, at least five percentum of the net earnings of said road
shall also be annually applied to the payment thereof."
Held, 1. that the liability of the Union Pacific
Railroad Company to make this payment accrued when it reported, and
the President of the United States accepted, its road as completed
for the purpose of issuing the bonds, though the acceptance was
provisional and security was required that all deficiencies in
construction should be supplied; 2. that the company, having
obtained the bonds and agreed in regard to the security, is
estopped from denying that the road was then completed.
2. The "earnings" of the road include all the receipts arising
from the company's operations as a railroad company, but not those
from the public lands granted, nor fictitious receipts for the
transportation of its own property. "Net earnings," within the
meaning of the law, are ascertained by deducting from the gross
earnings all the ordinary expenses of organization and of operating
the road, and expenditures made
bona fide in improvements
and paid out of earnings, and not by the issue of bonds or stock,
but not deducting interest paid on any of the bonded debt of the
company.
3. The government bonds issued to the company were declared to
be a first lien on the road and property; the Act of July 2, 1864,
13
id. 356, authorized the company to issue an equal
amount of first mortgage bonds, to have priority over the
government bonds.
Held that this priority authorized the
payment of the interest accruing on these first mortgage bonds out
of the net earnings of the road in preference to the five percentum
payable to the government, which is only demandable out of the
excess in each year.
This is a suit by the Union Pacific Railroad Company to recover
compensation for services rendered to the United States prior to
1874, and during a portion of that year 1874, and the whole of the
year 1875. A counterclaim is set up for five percent of the net
earnings of the company, under the provision of the sixth section
of the Act of July, 1, 1862, 12 Stat. 489, that
"After the said road is completed, until said bonds and interest
are paid, at least five percentum of the net earnings
Page 99 U. S. 403
of said road shall also be annually applied to the payment
thereof."
The United States alleges that the road was completed on the 6th
of November, 1869, and that since that time, a large amount of net
earnings has been realized by the company, which it has failed to
pay or apply to the said bonds. The company denies this and alleges
that its road was not finished until Oct. 1, 1874, and that it has
not realized any net earnings in any year since either the 6th of
November, 1869, or the 1st of October, 1874, and denies that it was
its duty to pay to the United States annually any money whatever as
and for five percent upon its net earnings to be applied in the
aforesaid.
The Court of Claims decided that the road was completed on the
6th of November, 1869, and that the company did, after that period,
annually realize net earnings to a large amount for the six years
from Nov. 6, 1869, to Nov. 6, 1875, amounting in the aggregate to
the sum of $28,052,045.67, and that five percent thereof, to-wit,
the sum of $1,402,602.28, was payable to the government, whilst
one-half of the compensation due for the services rendered by the
company to the government for the period covered by the petition
amounted to only $593,627.10, and therefore that the government was
entitled to recover from the company the difference between these
two sums, amounting to the sum of $808,975.18. From this judgment,
the company appealed.
So much of the eighteenth finding by the Court of Claims as is
referred to and commented on in the opinion of the court is as
follows:
image:a
Page 99 U. S. 404
image:b
Page 99 U. S. 405
image:c
Items 5, 6, 7, 8, 9, 10, 11, 12, 14, and 15 are not in
dispute.
Item 1, "conducting transportation expenses," is liable to be
reduced by the amounts shown in line 1 of the table below as
expended for "tenement houses and hotels," and by the amounts shown
in line 2 as expended for new station buildings; item 2, "motive
power expenses," is liable to be reduced by the amounts shown in
line 3 as expended for "engine equipment," and by the amounts shown
in line 4 as expended for "tanks and water works;" item 3,
"maintenance of cars expenses," is liable to be reduced by the
amounts shown in line 5 as expended for "car equipment;" and item
4, "maintenance of way expenses," is liable to be reduced by the
amounts shown in line 6 as expended for the "Laramie rolling
mills," in case such several and respective outlays are regarded as
not
Page 99 U. S. 406
proper to be deducted from "gross earnings" in order to arrive
at "net earnings."
image:d
Item 13, "expense account," is subject to be reduced by the
following amounts in case such outlays are regarded as not proper
to be deducted from "gross earnings" in order to arrive at "net
earnings,"
viz., in the year, Nov. 6, 1869, to Nov. 5,
1870, expenses relating to an issue of bonds, $10,339.76; March 13,
1871, cost of a plate for the bridge bonds, $1,500; June 5, 1874,
and expense relating to the issue of sinking fund bonds,
$6,579.10.
The disputed expenditures in items 1, 2, 3, and 4 were for new
construction. Item 27 was also for new construction.
Item 16 was for the use of the cars of other companies.
Items 17, 20, 21, 22, 23, 24, and 25 show payments of interest
on debts.
Items 18 and 19 show payments made on account of the land
department of the company's business.
Item 26 shows payments in the construction of the Omaha bridge
above the amounts received from the sale of the mortgage bonds
secured by it.
Items 28 and 29 show expenditures made for a sinking fund for
the redemption of the company's debt.
Item 30 shows an assumed payment of a portion of the interest on
the government subsidy bonds by the application to it of half the
government transportation account.
MR. JUSTICE BRADLEY, after stating the case, delivered the
opinion of the Court.
This case is in some respects supplemental to that of
United
Page 99 U. S. 407
States v. Union Pacific Railroad Co., 91 U. S.
72. That was a suit brought in the Court of Claims by
the company to recover one-half of the compensation due to it for
services rendered to the government between the dates of February,
1871, and February, 1874, against which claim the United States set
up a counterclaim for the interest which it had paid on the subsidy
bonds advanced to the company. This Court held that, by the terms
of the acts of Congress granting said subsidies, the company was
not required to pay the interest on said bonds until the maturity
of the principal thereof, and therefore the counterclaim of the
government was overruled. The present case arises upon a like suit
brought by the company in the Court of Claims for the recovery of
one-half of the compensation due to it for services rendered to the
government during the remainder of the year 1874 and the whole of
the year 1875, including certain services performed prior to 1874,
not included in the first suit.
The general history of the legislation of Congress in reference
to the Union Pacific Railroad Company and the associated
enterprises, and of the policy of the government respecting the
same, is fully stated in our opinion in the former case, and need
not be repeated here. We shall only advert to the several acts and
to the proceedings and negotiations which have taken place between
the parties so far as may be necessary to an understanding of the
specific questions which are raised in this suit. The facts are
fully set forth by the Court of Claims in its findings. Three
principal questions are raised by the acts of Congress and the
facts found by the court, which it is necessary for us to
determine.
First, when was the road completed?
Secondly, what is included in net earnings?
Thirdly, how and under what conditions are they to be
paid?
I. First, as to the completion of the road.
In one sense, a railroad is never completed. There is never, or
hardly ever, a time when something more cannot be done, and is not
done, to render the most perfect road more complete than it was
before. This fact is well exemplified by the history of the early
railroads of the country. At first, many of them were constructed
with a flat rail, or iron bar, laid on wooden
Page 99 U. S. 408
string pieces, resulting in what was known, in former times, as
snake heads -- the bars becoming loose, and curving up in such a
manner as to be caught by the cars, and forced through the floors
amongst the passengers. Then came the T rail, and finally the H
rail, which itself passed through many successive improvements.
Finally, steel rails in the place of iron rails have been adopted
as the most perfect, durable, safe, and economical rails on
extensive lines of road. Bridges were first made of wood, then of
stone, then of stone and iron. Grades originally crossed, and in
most cases do still cross, highways and other roads on the same
level. The most improved plan is to have them, by means of bridges,
pass over or under intersecting roads. A single track is all that
is deemed necessary to begin with, but now no railroad of any
pretensions is considered perfect until it has at least a double
track. Depots and stationhouses are at first mere sheds, which are
deemed sufficient to answer the purpose of business. These are
succeeded, as the means of the company admit, by commodious station
and freight houses of permanent and ornamental structure. And so
the process of improvement goes on, so that it is often a nice
question to determine what is meant by a complete first class
railroad, and if a question of right or obligation between parties
depends upon the completion of such a structure, courts are obliged
to spell out, from the circumstances of the case and the language
and acts of the parties, what they mean when they use such
terms.
In the present case, we have for our guidance several clauses in
the charter of the Union Pacific Railroad Company (the act of 1862)
in which the terms referred to are used, as well as the acts of the
parties in reference thereto. One of these clauses is in the fourth
section of the act, which contains an engagement on the part of the
government to grant certain sections of land to the company on the
completion of a certain number of miles of its road. The third
section having granted to the company every alternate section of
the public land, designated by odd numbers, to the amount of five
alternate sections per mile on each side of the railroad, on the
line thereof, and within the limits of ten miles, not otherwise
disposed of by the United States, the fourth section proceeds as
follows:
Page 99 U. S. 409
"SEC. 4. That whenever said company shall have completed forty
consecutive miles of any portion of said railroad and telegraph
line, ready for the service contemplated by this act and supplied
with all necessary drains, culverts, viaducts, crossings, sidings,
bridges, turnouts, watering places, depots, equipments, furniture,
and all other appurtenances of a first class railroad, the rails
and all the other iron used in the construction and equipment of
said road to be American manufacture of the best quality, the
President of the United States shall appoint three commissioners to
examine the same and report to him in relation thereto, and if it
shall appear to him that forty consecutive miles of said railroad
and telegraph line have been completed and equipped in all respects
as required by this act, then, upon certificate of said
commissioners to that effect, patents shall issue conveying the
right and title to said lands to said company, on each side of the
road as far as the same is completed, to the amount aforesaid, and
patents shall in like manner issue as each forty miles of said
railroad and telegraph line are completed, upon certificate of said
commissioners. . . .
Provided, however, that no such
commissioners shall be appointed by the President of the United
States unless there shall be presented to him a statement, verified
on oath by the president of said company, that such forty miles
have been completed in the manner required by this act and setting
forth with certainty the points where such forty miles begin and
where the same end, which oath shall be taken before a judge of a
court of record."
By the Act of 1864, 13 Stat. 356, the amount and extent of the
grant is doubled.
Again, by the fifth section of the act of 1862 it is enacted as
follows:
"SEC. 5. That for the purposes herein mentioned, the Secretary
of the Treasury shall, upon the certificate in writing of said
commissioners of the completion and equipment of forty consecutive
miles of said railroad and telegraph in accordance with the
provisions of this act, issue to said company bonds of the United
States of $1,000 each, payable in thirty years after date, bearing
six percentum per annum interest, . . . to the amount of sixteen of
said bonds per mile for each section of forty miles, and to secure
the repayment to the United States, as hereinafter provided, of the
amount of said bonds so issued and delivered to said company,
together with all interest thereon which shall have been paid by
the United States,
Page 99 U. S. 410
the issue of said bonds and delivery to the company shall
ipso facto constitute a first 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."
By the eleventh section, the amount of bonds granted was to be
$48,000 per mile for one hundred and fifty miles through the Rocky
Mountains, and for the same distance including the Sierra Nevada
Mountains, and $32,000 per mile between those points; and by the
act of 1864, the completed sections were reduced to twenty miles
instead of forty.
By the sixth section of the act, it is further enacted as
follows:
"SEC. 6. That the grants aforesaid are 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 dispatches 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. Said company may
also pay the United 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 said road is
completed, until said bonds and interest are paid, at least five
percentum of the net earnings of said road shall also be annually
applied to the payment thereof."
Reading these sections together, it seems hardly possible to
conceive that the word "completed" in the last clause of the sixth
section has any other or different meaning from that which it has
in the fourth and fifth sections, or that the five percent of the
net earnings should not be demandable by the government as soon as
the whole line was completed in the same manner in which any forty
[or twenty] miles was to be completed in order to entitle the
company to bonds. This conclusion
Page 99 U. S. 411
is so obvious and self-evident that it hardly needs a word of
argument to maintain it.
Now the findings of fact show that the company began to claim
the subsidy of lands and bonds for completed sections of the
railroad and telegraph line in June, 1866, and from that time
forward made similar successive applications nearly or quite every
month, tendering the affidavit of the president of the company as
to the completion of the several sections, as required by the act.
The first of these affidavits was made on the 25th of June, 1866,
and was in the words following:
"John A. Dix, being duly sworn, deposeth and saith that he is
president of the Union Pacific Railroad Company, and in pursuance
of the requirements of sec. 4 of the Act of Congress approved July
1, 1862, entitled 'An Act to aid in the construction of the
railroad and telegraph line from the Missouri River to the Pacific
Ocean' &c., he now states, under oath, that one hundred and
five consecutive miles of said railroad, beginning at Omaha and
ending at a point one hundred and five miles westward thereof, on
the line designated by the maps of said company on file in the
Department of the Interior, have been completed and equipped in all
respects as required by the act referred to, as he is informed by
the engineer charged with the construction of said line, and as he
verily believes to be true, and he further states under oath that
one hundred and five miles of telegraph have been completed for the
said one hundred and five consecutive miles, as he is also advised
by the engineer in charge."
"JOHN A. DIX, President"
"Sworn to, June 25, 1866."
The last affidavit, relating to the completion of the last
section of the road -- and indeed extending some fifty miles beyond
the point of division finally agreed upon between the Union and
Central Pacific Railroad Companies -- was made on the 13th of May,
1869, and was in the words following:
"Oliver Ames, being duly sworn, deposeth and saith that he is
president of the Union Pacific Railroad. And in pursuance of the
requirements of sec. 4 of the Act of Congress approved 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'
&c., he now states, under oath, that another section of eighty
six miles, commencing at 1,000 mile and ending at 1,086 mile post,
was completed on the tenth
Page 99 U. S. 412
day of May, 1869, making in all 1,086 consecutive miles of said
road, beginning at the initial point on section 10, opposite
western boundary of the State of Iowa, as fixed by the President of
the United States, and ending at a point 1,086 miles westward
therefrom on the line designated by the maps of said company on
file in the Department of the Interior, that have been completed
and equipped in all respects as required by the act referred to, as
he is informed by the engineer charged with the construction of
said line, and as he verily believes to be true. And he further
states under oath that 1,086 miles of telegraph have been completed
for the said 1,086 consecutive miles, as he is also advised by the
engineer in charge."
"OLIVER AMES"
"
President Union Pacific Railroad Company"
"Sworn to May 13, 1869"
The Court of Claims finds as a matter of fact that
"On the 10th of May, 1869, the last rail of the claimant's road
was laid, and about a week afterwards, the road was opened over the
entire length to public use for the transportation of passengers
and freight and for the service of the government, and this service
was from that time forward performed continuously."
It further found that on the 23d of December, 1865, the
President of the United States, under the authority of sec. 4 of
the said Act of July 1, 1862, appointed commissioners to examine
and report upon the first section of forty miles of said road, and
sometime prior to April 30, 1866, he appointed other commissioners
to examine and report upon the second section of twenty-five miles
of said road, and after the making of each of the foregoing
affidavits, he appointed other commissioners to examine the
sections of the road as successively completed and report to him in
relation thereto. The reports of the commissioners so appointed
were made in the first instance to the Secretary of the Interior,
who transmitted them to the President, who approved the
recommendations of the Secretary of the Interior by writing his
approval thereon. The following is the first letter of the said
secretary, with the President's endorsement thereon:
"DEPARTMENT OF THE INTERIOR"
"WASHINGTON, D. C., Jan. 24, 1866"
"SIR -- I have the honor to submit herewith enclosed for your
action the report of the commissioners appointed by you on the
23d
Page 99 U. S. 413
December, 1865, to examine the first section of forty miles of
the Union Pacific Railroad, extending west from the City of Omaha,
Territory of Nebraska. The company authorized to build this road
having, as shown in the report of the commissioners, obligated
itself to remedy, within a reasonable time, the deficiencies in the
construction of said section, I respectfully recommend that the
same be accepted, and proper steps be ordered for the issue of the
bonds and land grants due the company agreeably to law."
"I am, sir, with much respect, your obedient servant,"
"JAS. HARLAN, Secretary"
"THE PRESIDENT"
"EXECUTIVE MANSION, Jan. 24, 1866"
"The within recommendations of the Secretary of the Interior are
approved, and the Secretary of the Treasury and himself are hereby
directed to carry the same into effect."
"ANDREW JOHNSON"
Similar reports were made by the Secretary of the Interior, as
the successive sections were completed and reported on by the
commissioners, down to and including the ninth day of February,
1869, and were severally approved by the President, and the company
received the subsidy bonds of the government in accordance
therewith.
As it appeared by the reports of some of the commissioners that
the several sections of road were not, and could not under the
circumstances be fully completed up to the ultimate standard of a
first class railroad, though they might be, and actually were,
completed, section by section, so as to admit of transportation and
travel over the same, the railroad company, on the 12th of
February, 1869, being thereto required by the Attorney General of
the United States, as a guarantee for the ultimate full completion
and equipment of the road, executed an agreement of the last
mentioned date to deposit in the Treasury Department their own
first mortgage bonds (which by the act of July 2, 1864, they had
been authorized to issue, and which were to be preferred to the
lien of the United States) to the amount of Y3,000,000, to be held
by the government as security for the completion of the road
according to the provisions of the statutes in that behalf, and
until the President, on a proper examination of the same, should be
satisfied that it was so completed.
Page 99 U. S. 414
At the same time, the company also agreed, by way of further
security, to leave their land grants with the government, without
taking out patents for the same, until the President should be
satisfied as aforesaid -- or
pro tanto to such extent as
he might not be satisfied.
On the 10th of April, 1869, a joint resolution was passed by
Congress by which, among other things, it was declared that the
common terminus of the Union Pacific and the Central Pacific
railroads should be at or near Ogden. And that the President was
thereby authorized to appoint a board of eminent citizens, not
exceeding five in number, to examine and report upon the condition
of the two roads (the Union Pacific and the Central Pacific), and
what sum, if any, would be required to complete each of them. And
the President was further authorized and required to-withhold from
them an amount of subsidy bonds sufficient to secure the full
completion of the roads as first class roads, or to receive an
equal amount of the first mortgage bonds of the companies. A board
of five eminent citizens was appointed under this resolution in the
month of August following.
In the meantime, two additional reports were made by the
Secretary of the Interior to the President, one on the 27th of May,
1869, and the other on the 15th of July, 1869, in each case
recommending the acceptance of the sections referred to therein and
also recommending the issue of bonds therefor, in accordance with
the agreement aforesaid, to the effect that the company should
deposit its first mortgage bonds with the Secretary of the Treasury
to such amount as might be deemed necessary to secure the ultimate
completion of the road.
The last of these reports, with the President's endorsement
thereon, is in the words following, to-wit:
"DEPARTMENT OF THE INTERIOR"
"WASHINGTON, D. C., July 15, 1869"
"Sir -- I have the honor to transmit herewith for your action
five reports, dated the 9th ultimo, of the commissioners, Messrs.
Gouverneur K. Warren and James F. Wilson; also the report of Isaac
N. Morris, the other commissioner, dated May 28, 1869, appointed by
you to examine and report upon a section of 85 88/100 miles of the
road and telegraph line constructed by the Union
Page 99 U. S. 415
Pacific Railroad Company, commencing on the road of said company
at the 1,000th mile-post west from Omaha and terminating at the
1,085 88/100 mile-post."
"The majority of said commissioners, in their report, represent
the said section of 85 88/100 miles ready for present service, and
completed and equipped as a first class railroad, and that the
telegraph line is completed for the same distance, and as the
company have paid the
per diem and mileage due them under
the twenty first section of the Act of Congress approved July 27,
1866, on account of their examination of said section of road and
telegraph line, I therefore respectfully recommend the acceptance
of the same and the issue of bonds and of patents for land due on
account of said section, agreeably to the act approved 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,' and the acts amendatory thereof. Said bonds
and patents to be issued to the Union Pacific Railroad Company on
account of the work from said 1,000th mile-post to the 'common
terminus of the Union Pacific and Central Pacific Railroads,' 'at
or near Ogden;' and the bonds and patents on account of said work
from said common terminus to Promontory Summit to be issued to such
company as the proper authority, after full investigation of the
respective claims of the Union Pacific Railroad Company and the
Central Pacific Railroad Company of California shall determine to
be thereunto lawfully entitled,
provided however, that no
bonds or patents shall in any event be issued until such security
shall be deposited with the Secretary of the Treasury necessary to
secure the ultimate completion of the road, agreeably to the acts
mentioned in my letter to you of the 27th of May last."
"I am, sir, very respectfully, your obedient servant,"
"J. D. COX,
Secretary"
"THE PRESIDENT"
"EXECUTIVE MANSION, July 15, 1869"
"The within recommendations of the Secretary of the Interior are
approved, and the Secretary of the Treasury and himself are hereby
directed to carry the same into effect."
"U.S. GRANT"
It is found by the Court of Claims that on the 22d of July,
1869, in partial performance of this last order of the President,
$640,000 of subsidy bonds were issued to the company, being
Page 99 U. S. 416
the subsidy for the section of twenty miles extending from the
1,000th to the 1,020th mile from Omaha, the subsidy bonds on all
the previous sections having been received by the company before
that time.
As before stated, in August, 1869, the President, in accordance
with the joint resolution of April 10, 1869, appointed a board of
five eminent citizens, to examine and report upon the condition of
the road, and what sum would be required to complete it as a first
class railroad. This board made a detailed examination, and on the
30th of October, 1869, made an elaborate report, specifying a
number of particular things at various points, such as ballasting,
embankment, masonry, trestle work, &c., which required
perfecting to put the road in first class condition; estimating the
aggregate expense of such improvements on the whole line from Omaha
to Ogden at $1,586,100. They conclude their report as follows:
"This great line, the value of which to the country is
inestimable, and in which every citizen should feel a pride, has
been built in about half the time allowed by Congress, and is now a
good and reliable means of communication between Omaha and
Sacramento, well equipped, and fully prepared to carry passengers
and freight with safety and dispatch, comparing in this respect
favorably with a majority of the first class roads in the United
States."
This report being made and accepted, on the 3d of November,
1869, the Secretary of the Interior issued directions to the
Commissioner of the General Land Office to commence patenting lands
to the companies, and to issue patents for one-half of the lands
which they were to receive, the patents for the other half to be
suspended until further directions, in addition to the bonds
retained, as security for the completion of the roads in the
matters reported deficient or not up to the standard by the said
committee.
Up to the 6th of November, 1869, the point at which the Union
Pacific and Central Pacific roads should meet was not settled; but
assuming that the former would go no further west than Ogden, 1,033
68/100 miles from Omaha, the Secretary of the Treasury on that day
ordered that bonds at the rate of $32,000 per mile for the distance
of 13 68/100 miles from the
Page 99 U. S. 417
1,020th mile-post to Ogden should be issued, but ordered that
the register of the treasury should hold $323,488 thereof as
security for the over issue of first mortgage bonds by the company,
and deliver the balance to it. The reason of withholding these
bonds was that the company, having been authorized by the act of
July 2, 1864, supplementary to its charter, to issue the same
amount of first mortgage bonds as it was entitled to receive from
the government, and which was accorded a priority over the lien of
the government bonds, and having actually constructed the road
fifty three miles west of Ogden, had issued a larger amount of its
own bonds than the amount of subsidy to which it was entitled as
the point of division between its road and that of the Central
Pacific was finally settled. By a subsequent arrangement with the
Central Pacific Railroad Company, the point of junction between the
two roads was fixed at a point five miles west of Ogden, which
entitled the Union Pacific Company to bonds for such five
additional miles, amounting to $160,000, which it received in July,
1870, making the total amount of subsidy bonds which it was
entitled to, and did receive, the sum of $27,235,760.
It thus appears that prior to the sixth day of November, 1869,
the entire road of the company had, in separate sections, been
reported by it, under the oath of its president, as being completed
and furnished as a first class railroad in accordance with the
requirements of the act, and that upon the strength of these
representations and the corresponding reports of the commissioners
appointed to examine the several sections, it had been accepted by
the President; and that the company, with the exception of the last
$160,000 of bonds, the claim to which arose from a mutual
arrangement between the two companies, had received its entire
subsidy of government bonds, and had received an order for the
issuing of patents for its grant of public lands to the extent of
one-half thereof, the patents for the other half being suspended,
by virtue of the agreement made in April, 1869, as security for the
more perfect completion of certain parts of the work.
It is urged that the acceptance of the road by the President up
to this period was only provisional, and not final. We cannot
perceive that this makes any difference. It was an
Page 99 U. S. 418
acceptance by which the company was enabled to receive its
subsidy of government bonds, and was sought by it in order that it
might obtain them.
It seems to us unnecessary to look further or to review the
subsequent proceedings which took place between the President and
the company, in reference to the fulfillment of the conditions by
the latter, on which the issue of the patents for the remaining
lands depended. It appears that another commission was appointed to
examine the road in 1874, and that, on their report, the President
was satisfied that all the imperfections, as a security for the
removal of which any patents had been suspended, were removed. The
company insists that this was the period which should be taken for
the completion of the road in reference to the payment of five
percent of its net earnings -- a period five years after it had
reported the last section completed according to the act of
Congress, and after the President, by virtue of the agreement
aforesaid, had consented to accept it as completed for the purpose
of enabling the company to draw its subsidy of government bonds,
and after it had received said bonds.
Can a stronger case of estoppel than this well be presented? The
plea that the government still retained a portion of the public
lands which the company was to receive as security for the supply
of certain deficiencies in the road cannot avail to diminish the
strength of the estoppel. This was done by the voluntary agreement
of the company itself. And as, by making this concession, it
succeeded in obtaining the formal acceptance of its road for the
sake of the benefit to accrue therefrom, to-wit, the procurement of
the subsidy bonds, the company ought to be willing to bear the
burden of such acceptance, to-wit, the payment annually of five
percent of the net earnings of the road on account of the bonds. It
would be an unfair construction of the acts of the parties under
the law to hold that the road was completed for one purpose and not
for the other. We think, therefore, that the Court of Claims was
right in deciding that the road was completed on the sixth day of
November, 1869, so far as the duty of the company to account for
five percent of its net earnings is concerned.
II. The question next arising is what are the "net earnings"
Page 99 U. S. 419
for five percent of which the company became liable to account,
and in what manner are they payable?
In the first place, they are the "net earnings of the road" --
that is, the net earnings of the road as a railroad, including the
telegraph. They have nothing to do with the income or profits of
the company as a holder of public lands. The proceeds of this
source of income are no part of the earnings of the road. These
earnings, however, must be regarded as embracing all the earnings
and income derived by the company from the railroad proper, and all
the appendages and appurtenances thereof, including its ferry and
bridge at Omaha, its cars, and all its property and apparatus
legitimately connected with its railroad.
In the present case, but little difficulty is presented in
determining what are the proper earnings of the road, except in one
particular. The company insists that the compensation accruing to
it for services performed for the government, under the sixth
section of the act of 1862, should not be estimated amongst the
earnings of the road in taking an account of net earnings upon
which to calculate the five percent in question. That compensation
is not receivable by the company -- does not come into its hands --
at least was not receivable by it according to the act of 1862, but
was directed by the sixth section to be applied to the payment of
the subsidy bonds. After giving this direction, the section
proceeds to add that after the road is completed, "until said bonds
and interest are paid, five percentum of the net earnings of said
road shall also be annually applied to the payment thereof." It is
contended that the net earnings here referred to are intended to be
exclusive of said compensation for government service, no part of
which the company was to receive. It must be admitted that there is
some force in this view. But the majority of the Court is of
opinion that the plain letter of the statute cannot be thus varied
by construction. The compensation accruing by means of services
performed for the government is unquestionably earnings of the road
and telegraph, and as there are no words in the act which go to
show any intention to except this portion of earnings from the
other earnings of the road in estimating the amount of net
earnings, the conclusion arrived at is that no
Page 99 U. S. 420
such exception can be made. The fact that by a subsequent law
the company is allowed to receive in money one-half of the
compensation referred to removes to a great extent the practical
difficulties that have been suggested in this behalf.
There is another item in the table of earnings set forth in the
eighteenth finding of the Court of Claims which may require
consideration. We refer to the seventh item, entitled "company
freight." If this means freight for the transportation of the
company's own property over its own road, it ought not to be put
down as a receipt unless the same amount is also embraced amongst
the expenses on the other side of the account. How this fact may be
we have not before us the means of knowing. The evidence which the
Court of Claims has in its possession will enable it to determine
this matter. We merely decide that if the item appears only as a
receipt or earning, and is of the character we have supposed, it
ought to be excluded from the account.
Having considered the question of receipts or earnings, the next
thing in order is the expenditures which are properly chargeable
against the gross earning in order to arrive at the "net earnings,"
as this expression is to be understood within the meaning of the
act. As a general proposition, net earnings are the excess of the
gross earnings over the expenditures defrayed in producing them,
aside from, and exclusive of, the expenditure of capital laid out
in constructing and equipping the works themselves. It may often be
difficult to draw a precise line between expenditures for
construction and the ordinary expenses incident to operating and
maintaining the road and works of a railroad company.
Theoretically, the expenses chargeable to earnings include the
general expenses of keeping up the organization of the company, and
all expenses incurred in operating the works and keeping them in
good condition and repair, whilst expenses chargeable to capital
include those which are incurred in the original construction of
the works and in the subsequent enlargement and improvement
thereof. With regard to the last mentioned class of expenditures,
however -- namely those which are incurred in enlarging and
improving the works -- a difference of practice prevails amongst
railroad companies. Some charge to construction account every
Page 99 U. S. 421
item of expense and every part and portion of every item which
goes to make the road or any of its appurtenances or equipments
better than they were before, whilst others charge to ordinary
expense account, and against earnings, whatever is taken for these
purposes from the earnings and is not raised upon bonds or issues
of stock. The latter method is deemed the most conservative and
beneficial for the company and operates as a restraint against
injudicious dividends and the accumulation of a heavy indebtedness.
The temptation is to make expenses appear as small as possible, so
as to have a large apparent surplus to divide. But it is not
regarded as the wisest and most prudent method. The question is one
of policy, which is usually left to the discretion of the
directors. There is but little danger that any board will cause a
very large or undue portion of their earnings to be absorbed in
permanent improvements. The practice will only extend to those
which may be required from time to time by the gradual increase of
the company's traffic, the dispatch of business, the public
accommodation, and the general permanency and completeness of the
works. When any important improvement is needed, such as an
additional tract, or any other matter which involves a large outlay
of money, the owners of the road will hardly forego the entire
suspension of dividends in order to raise the requisite funds for
those purposes, but will rather take the ordinary course of issuing
bonds or additional stock. But for making all ordinary improvements
as well as repairs, it is better for the stockholders and all those
who are interested in the prosperity of the enterprise that a
portion of the earnings should be employed. We think that the true
interest of the government, in this case, is the same as that of
the stockholders, and will be subserved by encouraging a liberal
application of the earnings to the improvement of the works. It is
better for the ultimate security of the government in reference to
the payment of its loan, as well as for the service which it may
require in the transportation of its property and mails, that a
hundred dollars should be spent in improving the works than that it
should receive five dollars towards the payment of its subsidy. If
the five percent of net earnings, demandable from the company,
amounted to a new indebtedness not due before, like a
Page 99 U. S. 422
rent accruing upon a lease, a more rigid rule might be insisted
on. But it is not so; the amount of the indebtedness is fixed and
unchangeable. The amount of the five percent and its receipt at one
time or another is simply a question of earlier or later payment of
a debt already fixed in amount. If the employment of any earnings
of the road in making improvements lessens the amount of net
earnings, the government loses nothing thereby. The only result is
that a less amount is presently paid on its debt, whilst the
general security for the whole debt is largely increased.
We are disposed to agree, therefore, with the judge who
delivered the concurring opinion in the court below that the twenty
seventh item of expenditure, as stated in the table of expenses in
the eighteenth finding, entitled "expenditures for station
buildings, shops, &c.," is a charge that may properly be made
against earnings, since, as the fact is, such expenditures were
actually paid therefrom, and were not carried to capital account.
Should the company ever attempt to make a stock or bond dividend in
consideration of such expenditure, the government would be entitled
to demand its due proportion thereof by way of payment on account
of its debt. But as long as such expenditures are fairly and in
good faith charged to account of earnings, we see no good reason
for disallowing the charge.
Of course, the allowance of this item will supersede the
deduction of fifteen percent from the seventh item of earnings,
which item, however, is subject to the observations that have
already been made upon it.
Expenses of the same kind as those included in item 27, which
are contained in other items, and were disallowed by the Court of
Claims, are to be allowed in like manner as those in item 27,
including the expenses for issuing bonds.
We agree with the Court of Claims in its rejection of the
expenditures contained in items 17 to 30 in the table referred to,
excepting item 27. All payments of interest on the bonded
indebtedness of the company should be charged to capital interest
account, and not to current expenditures. Though payable out of
earnings before any dividend can be made to stockholders, they
cannot be deducted for the purpose of ascertaining the "net
earnings" of the road, as that term is to be
Page 99 U. S. 423
understood in the sixth section of the act. The bonded debt
incurred for the purpose of construction and equipment is but
another form of capital, analogous to preferred stock, and the
interest accruing thereon is in the nature of a dividend on such
capital. It has nothing to do with, and cannot affect, the amount
of the net earnings of the road.
So the expenses of land and town lot departments, and taxes on
lands and town lots, are expenses properly belonging to the land
department of the company's property. They are entirely distinct
from its expenses as a railroad company, and form no proper charge
in the accounts against the earnings of the road.
The other items disallowed by the court require no particular
remark. Their irrelevancy in the account of net earnings is
obvious.
III. We have still to consider the manner in which, and the
conditions subject to which, the five percent of net earnings is
payable and demandable.
We have seen that by the fifth section of the act of 1862, the
issue to the company of the subsidy bonds was to constitute a first
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 should be
issued. By the Act of July 2, 1864, this priority of the government
claim was relinquished in favor of a certain amount of first
mortgage bonds which, by that act, the company was authorized to
issue. The provision referred to is contained in the tenth section
of the act of 1864, which is as follows:
"SEC. 10. And be it further enacted, that sec. 5 of said act [of
July 1, 1862] be so modified and amended that the Union Pacific
Railroad Company, the Central Pacific Railroad Company, and any
other company authorized to participate in the construction of said
road may, on the completion of each section of said road as
provided in this act and the act to which this act is an amendment,
issue their first mortgage bonds on their respective railroad and
telegraph lines to an amount not exceeding the amount of the bonds
of the United States, and of even tenor and date, time of maturity,
rate and character of interest, with the
Page 99 U. S. 424
bonds authorized to be issued to said railroad companies
respectively. And the lien of the United States bonds shall be
subordinate to that of the bonds of any or either of said companies
hereby authorized to be issued on their respective roads, property,
and equipments, except as to the provisions of the sixth section of
the act to which this act is an amendment, relating to the
transmission of dispatches and the transportation of mails, troops,
munitions of war, supplies, and public stores for the government of
the United States."
It is found by the Court of Claims that the Union Pacific
Railroad Company did issue its first mortgage bonds as authorized
by this section, and to the full amount allowed thereby. The
company contends that the interest of these bonds, if not its other
interest, should be charged as an expenditure against the earnings
of the road in taking an account of its net earnings, which would
reduce the net earnings of each year by the amount of said
interest. We have already expressed an opinion that this claim
cannot be sustained. The interest on these bonds do not, any more
than the interest of any other bonds of the company, form any
proper portion of the expenditures of the road to be considered in
estimating the net earnings mentioned in sec. 6 of the act of
1862.
But whilst we decide against the company on this point, we are
clearly of opinion that the annual interest accruing on these
particular bonds are to be first paid out of the net earnings,
before the government can demand its five percent thereof. We
conceive this to be the legitimate effect of the concession by the
government of its priority. It can hardly be pretended that,
notwithstanding this concession, the five percent to be applied in
payment of the government bonds is to be first paid. It seems to us
an absurdity to say that these bonds are entitled to a priority,
but that the government must be first paid. This would be to grant
a priority and in the same breath to take it back again. It will
not do to say that both must be paid if there is not enough to pay
both. It is a question between two parties having a claim against a
common fund, and one of them having a priority over the other.
It may perhaps be urged that the first mortgage bondholders have
no lien on the net earnings. But it has the same lien
Page 99 U. S. 425
that the government has. Both liens are coextensive with the
whole property of the company, so far at least as relates to the
railroad and telegraph lines and their equipment and all property
appurtenant thereto. There is a direction, it is true, that if the
company makes net earnings, it shall pay five percent thereof on
its debt to the government. But that direction was contained in the
act of 1862; the authority to issue the first mortgage bonds, and
the concession of priority thereto, was given two years afterwards,
and is the controlling enactment. It cannot be supposed, after this
transaction, that the company is bound to pay the government first,
and to allow the interest on the first mortgage bonds to go unpaid,
or, in order to pay it, to go out in the money market and make a
new loan. Such could never have been the intention of the law. Not
to pay the interest on the first mortgage would expose the road and
works to be seized and sold -- a result, certainly, that could not
be to the interest of the government when we consider that its
entire debt is postponed to the first mortgage, and would be liable
to be lost by such a proceeding. Borrowing money to pay the
interest (if it could be borrowed) would only be to put off the
evil day.
The interest accruing on the first mortgage is as much payable
out of the net earnings as the five percent payable to government
is. It is the proper fund out of which to pay both, and if but one
can be paid, the former has the precedence, or else the whole
government debt might be paid to the exclusion of the first
mortgage, which is admitted to have the priority. Such a result
would be manifestly absurd.
The truth is that the provision for paying five percent of the
net earnings on the subsidy debt was a provision for payment out of
a particular fund. If by voluntary agreement on the part of the
government a portion of that fund is appropriated to another
purpose (which we think it is), then the government is entitled to
go against the balance only. The provision created no new
obligation or indebtedness, but only entitled the government to
anticipate part payment of a fixed indebtedness out of a particular
fund, if there should be such a fund. If the fund should not arise
or should be exhausted by claims to which the government gave
priority over its own
Page 99 U. S. 426
claim, there would clearly be nothing for the government to
demand.
It is not like the case of two mortgages, one prior to the other
and both having claims for interest coming due. In such case, if
both claims are not paid, the one which is not paid becomes a cause
of action, and may be put in suit. Here, the claim of the
government is on the fund alone. If that is exhausted by its own
consent, no cause of action arises. There is simply nothing left of
the fund to which it has a right to resort.
The government, however, may contend that if there is not a
sufficient surplus of net earnings in one year to pay the five
percent due for that year, it may be carried over to a succeeding
year and taken out of the surplus thereof. We do not think that
this position is more tenable than the other. Each year is to stand
by itself. If there is a deficit in any year instead of net
earnings, such deficit cannot be carried over into the next year's
accounts by the company, and if there are net earnings which are
absorbed by the interest due on the first mortgage, the claim of
five percent cannot be carried over into the next year by the
government. The one is no more a debt than the other is a credit.
The statute makes the application an annual one. If the year
produces net earnings sufficient for the purpose, the government
gets its five percent; if it does not produce sufficient, the
government does not get its five percent, and there the account
ends for that year. It was never intended that this account should
be carried on from one year to another.
This seems to us to be the fair and reasonable construction of
the statutes, and one that does no injustice to either of the
parties. The object of Congress in all of them was to extend a
liberal hand in aid of the enterprise which the company undertook
to carry out, and not to exact, in addition to the amount of
service which the company was required to perform, the payment of
any part of its loan before maturity except a small portion of the
net earnings of the road which the company would be presumed to
have in its hands. So far as these were otherwise disposed of by
the government's own consent, the application to its debt must be
regarded as intended to be waived.
Page 99 U. S. 427
The fact that by the ninth section of the Act of March 3, 1871,
16 Stat. 525, the Secretary of the Treasury is required to pay over
in money to the companies one-half of the compensation for the
services performed by them for the United States, has no bearing on
the question now under consideration. The statutes out of which
this question arises were all passed long before, and are to be
construed as if the act of 1871 had never been passed.
We may add in conclusion that Congress, by the Act passed May 7,
1878, 20 Stat. 56, supplementary to the acts of 1862 and 1864, has
expressly directed that, in estimating the net earnings of the
roads, the interest of the first mortgage bonds, as well as the
current expenses, is to be deducted from the gross earnings. Whilst
this enactment cannot be invoked as furnishing any decisive rule
for the construction of the statutes under review, it at least
shows that Congress deems the interest of said first mortgage bonds
as fairly entitled to priority of payment out of the earnings of
the road, before the payment of any portion thereof on the
government debt. We think, therefore, that we are justified in
supposing that our conclusion is in harmony with the views of the
legislature, as to the justice and right of the case.
The conclusions to which we have come on the whole case will
require the following modifications of the decree appealed
from:
First, in estimating the amount of gross earnings, no
deduction will be made from the earnings included in items 7 or 12,
as set forth in the table contained in the eighteenth finding of
the Court of Claims, unless it be found that item 7, entitled
"company freight," is for transporting the company's own property
on its road, and is not balanced by being also contained among the
expenditures. If this be the case, then the whole of item 7 should
be struck out.
Secondly, in estimating the amount of expenditures to
be deducted from gross earnings, the claimant should be credited
with the expenditures contained in item 27 of the table of
expenditures, and the other expenses which are disallowed by the
Court of Claims, except items 17 to 26 inclusive, and items 28, 29,
and 30, which are properly disallowed.
Page 99 U. S. 428
Thirdly, if with these modifications it should be found
that the net earnings in any one year were not more than sufficient
to pay the interest on the first mortgage bonds accruing in said
year, then the company will not be decreed to pay any portion of
the said five percent of net earnings for that year. But if the net
earnings were more than sufficient to pay said interest, the excess
will be subject, as far as it will go, to the payment of said five
percent; but the company will not be decreed to pay any more than
said excess.
The decree will be reversed with instructions to enter a decree
in accordance with this opinion, and it is
So ordered.
MR. JUSTICE STRONG, with whom concurred MR. JUSTICE HARLAN,
dissenting.
I concur with the majority of the Court in holding that the
railroad was completed, within the meaning of the sixth section of
the act of 1862, on the sixth day of November, 1869. I concur also
in the definition of "net earnings," as the term was used in that
section. But the majority now express the opinion that if the net
earnings in any one year are not more than sufficient to pay the
interest on the first mortgage bonds of the company in that year,
the United States is not entitled to any portion of five percent of
those earnings for that year, though, if they are more than
sufficient to pay that interest, the excess or surplus is subject,
so far as it will go, to the payment of the five percent. This is
substantially holding that the claim of the government to the
annual payment of five percent of the company's net earnings, after
the completion of the road, is postponed to the annual interest on
the first mortgage bonds. To this I cannot assent. It is, I think,
based upon an entire misconstruction of the acts of Congress which
gave existence to the company, and to which alone we can look for
the contract between it and the government. A very few words will
indicate my opinion and show the reasons upon which it rests. By
the fifth section of the act of 1862, the Secretary of the Treasury
was required to issue to the company bonds of the United States to
an amount therein specified. The bonds were to be issued as a loan,
and the section provided as follows:
Page 99 U. S. 429
"And to secure the repayment to the United States, as
hereinafter provided, of the amount of said bonds 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
first 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."
This clause describes the lien, and the only lien, reserved by
the United States. It covers the railroad and telegraph, the
rolling stock and fixtures, and property of every kind and
description. It does not cover income from the property, either
gross receipts or net receipts derived from its use, while it
remains in the possession of the company and before any forfeiture
for breach of the conditions of the mortgage. A mortgage of a
property is a very different thing from a mortgage of its income.
The mortgagor, so long as he remains in possession or until actual
entry by the mortgagee, may receive the rents and profits to his
own use, and is not accountable for them to the mortgagee.
Fitchburg Cotton Manufactory Corporation v. Melven, 15
Mass. 268;
Boston Bank v. Reed, 8 Pick. (Mass.) 459.
Indeed, it is clear law that a mortgagee has no specific lien upon
the rents and profits of mortgaged premises until condition broken.
The Bank of Ogdensburgh v. Arnold, 5 Paige (N.Y.) 38. I
think it very apparent that in the reservation of the lien Congress
did not intend to interfere with or assert rights over the earnings
of the railroad or to prevent their appropriation to the general
uses of the company. They were not intended to be covered by the
lien or embraced within it. And I am confirmed in this belief by
the fact that immediately following the clause in the fifth section
describing the lien, a right was reserved to the United States to
take possession of the road on failure of the company to redeem the
bonds loaned.
Assuming that I am correct in this, I pass to the sixth section
of the act, which makes no reference to the lien, though it imposes
duties upon the company. It enacts that the grants aforesaid are
made upon condition that said company shall pay said bonds at
maturity and shall keep said railroad and telegraph
Page 99 U. S. 430
in repair and use shall transmit dispatches at all times over
said telegraph line and transport mails, troops, &c. for the
government when required, giving to the government the preference
in the use of the road and line for all the purposes aforesaid. The
section then declares that all compensation (subsequently changed
to one-half thereof) for services rendered for the government shall
be applied to the payment of the bonds and interest, so as
aforesaid named, until the whole amount is fully paid. Then follows
the clause which the United States is seeking in this action to
enforce. It is as follows:
"And after said road is completed, until said bonds and interest
are paid, at least five percentum of the net earnings of said road
shall also be annually applied to the payment thereof."
The grants referred to in this section and declared to be
conditional are probably those of the right of way and alternate
sections of land given previously in the preceding sections. They
can hardly refer to the loan of bonds. This, however, is not very
material. While it is true that the section refers to payment of
the debt due to the United States, it contains no allusion to the
lien for the security of the debt reserved in the fifth section.
And it can hardly be pretended that performance of the duties
thereby imposed upon the company is secured by the statutory
mortgage. The mortgage is not a security for having the road and
telegraph kept in order, nor for the transmission of dispatches, or
the transportation for the government, nor for priority of use by
the government, nor for the application to the payment of the bonds
of half the compensation for services to the government. Nor is it
any more a security for the required payment of a percentage of the
net earnings. These duties are secured by the condition attached to
the land grants, and by the implied assumption of the company. They
are entirely collateral to the obligation and lien of the mortgage.
They are not a part of it. It is no uncommon thing that a creditor
has several securities for one debt. He may have a bond and a
mortgage to secure its payment; he may have also a promissory note,
or an assignment of stock. Nobody would claim that in such a case
the note and the assignment are included in the lien of the
mortgage.
Having thus shown, as I think, what the lien of the
government
Page 99 U. S. 431
was, what it covered and what it did not, I pass to the tenth
section of the amending act of 1864, by which, as construed by a
majority of the Court, the claim of the United States to a
percentage annually of the net earnings of the road, is postponed
to the rights of what is called the first mortgage of the company.
That section authorized the company and other companies to issue
their first mortgage bonds on the roads and telegraph lines to an
amount not exceeding the bonds of the United States, and of even
tenor and date, time of maturity, rate and character of interest,
with the bonds authorized to be issued to them. It then declared
thus:
"And the lien of the United States shall be subordinate to that
of the bonds of any or either of said companies hereby authorized
to be issued on their respective roads, property, and equipments,
except as to the provisions of the sixth section of the act to
which this act is an amendment, relating to the transmission of
dispatches and the transportation of mails, troops, munitions of
war, supplies, and public stores for the government of the United
States."
The first mortgage thus authorized was less comprehensive than
the statutory mortgage of the United States. It did not include the
lands of the company nor any of its property except the road and
the telegraph line. It certainly did not include the earnings of
the company. What, then, was subordinated to it? I think nothing
but the lien of the United States bonds -- that lien which was
reserved in the fifth section of the act of 1862. This is the
express language of the section. Whatever right to the railroad and
telegraph line the United States had by virtue of its mortgage,
that right was postponed to the mortgage bonds authorized by this
tenth section, and issued under it. Nothing else was postponed.
Subordination of the lien of the United States to the company's
first mortgage could not have the effect of enlarging the operation
and scope of that mortgage and bringing additional subjects within
it. Surely it did not make the mortgage a lien upon any other
property than that which the company was authorized to mortgage. It
did not make it a lien, either prior or subsequent, upon the lands
of the company, or the income or earnings of its road. And as I
think I have shown the duty of the company
Page 99 U. S. 432
to apply annually five percent of its net earnings, after the
completion of its road, to the payment of its debt to the United
States, was collateral to its other obligations -- a cumulative
duty, not embraced in the lien or mortgage reserved by the United
States in the fifth section of the act of 1862 -- it cannot be
affected by the tenth section of the act of 1864. Whatever else was
postponed, it was not.
It has been argued on behalf of the appellant that the exception
from the subordinating clause of those provisions of the sixth
section of the act of 1862, relating to the transmission of
dispatches, and the transportation of mails, troops, munitions of
war, supplies, and public stores for the government of the United
States, implies that the other provisions of that section, or at
least the five percent provision, were intended to be subordinated
to the lien of the first mortgage company bonds. This supposed
implication is the principal reason urged in support of the
position taken by a majority of the Court. It is, however, in my
judgment, entirely unfounded. The purpose of the exception appears
to me to be very plain. As I have noticed, the section authorized
the company to issue their first mortgage bonds upon the railroad
and the telegraph line, and enacted that the lien of the United
States bonds should be subordinate to the company's first mortgage
bonds. Subordinate, clearly, only in its effect upon that which was
covered by the company's mortgage, namely the road and the
telegraph line. But if the company's mortgage was permitted to be
without exception the paramount lien upon the road and telegraph
line, the right secured to the United States by the sixth section
of the act of 1862 to the transmission of dispatches and
transportation of the mails, &c., might be totally destroyed by
a foreclosure of the mortgage and a sale under it. To guard against
this possibility was evidently the sole purpose of the exception,
and its necessity is manifest. I repeat, if the company's
authorized mortgage on the railroad and the telegraph line were
permitted to be, without restriction, a paramount lien, the
preferential right secured to the United States by the conditions
of the sixth section of the act of 1862 -- the right to the
transmission of dispatches and transportation of mails, stores,
munitions of war, &c., in preference to
Page 99 U. S. 433
others -- would have been at the mercy of the company's
mortgagees. That right of priority Congress was not willing to
endanger. The exception was introduced to avert the danger of its
loss. Congress in effect said to the company,
"Though we agree that your mortgage shall be the first lien upon
the road and the telegraph line, yet no foreclosure of it, no
taking possession under it, and no sale shall interfere with the
right of the United States to the transmission of dispatches and to
transportation in preference to all others."
To save that right the exception was necessary. It had reference
solely to the operation of the company's mortgage upon the road,
upon which a preferential right to transportation had been
reserved, and to the telegraph line, along which government
dispatches were first to be carried. I cannot believe it had any
other purpose or intent, much less that it was intended to operate
as a grant or to postpone the other rights assured to the United
States in the sixth section. The implication that every duty in
that section imposed upon the company, except the one expressly
mentioned, was intended to be subordinated to the lien of the
company's bonds is too unreasonable to be accepted, and it will not
be claimed. Yet such must be the extent of the implication if the
exception means what the majority of the Court think it means. If
the duty of the company to apply to the payment of its bonds a
percentage of its net earnings annually after the completion of its
road is postponed to the rights of the first mortgage bondholders,
so is the duty to apply one-half the compensation for services
rendered for the government, and so is the duty to keep the
railroad and telegraph line in repair, by parity of reason. Those
rights of the government and the right to the percentage of the
earnings stand alike. They are all reserved by the tenth section of
the act of 1864.
My conclusion, therefore, is that nothing in the tenth section
of the act of 1864 postpones the right of the government to recover
five percent of the net earnings of the road before any thing is
deducted from those earnings for either principal or interest of
the first mortgage bonds of the company.
It may be that the construction of the acts of Congress for
which I contend, if adopted by the Court, would not increase
Page 99 U. S. 434
the amount recoverable by the United States in the present suit,
but it may have an important effect on future claims against the
company for the five percent, and it has upon the claims of the
United States against the other companies to which the sixth
section of the act of 1862 was applicable.