
    THE UNION PACIFIC RAILROAD CASE.
    (10 Court of Claims R., p. 548 ; 91 U. S. R., p. 72.)
    
    The Union Pacific Railroad, appellees, v. The United States, appellants.
    
      On the defendants’ Appeal.
    
    
      The Government (under the aei of ineq}'poraiion) is to loan bonds to aid in the construction of the roacl; the company is to “pay said bonds at maturity” and transport mails and supplies at ordinary rates, and “ all compensation, for services rendered for the Government shall be applied to payment of said bonds and interest until the whole amount is fully paid.” A second act, passed before the eompany begins work, substitutes a half of the compensation for the whole and assures the payment of the remainder. A third “directs” the Secretary of the Treasury to pay this half, he having withheld the whole. A fourth “directs” him to withhold “all payments.” Meanwhile the Government pays the interest on the bonds, which largely exceeds the company’s earnings. The company brings its action to recover the half of its earnings, and the defendants set up a counter-claim and seek to recover the amount of their advances for interest. . The court below decides that the act of incorporation prescribed a specific mode of payment prior to the maturity of the bonds ; that, if the means thus designated produce more than the advances for interest, the loss ad interim ivill be the company’s; conversely itivjfl be the Government’s ; and that the Government, having the option of augmenting the payment from these sources by increasing the employment, the injury which it suffers is, in contemplation of law, of its own choosing. Judg^nent for the claimant. The defendants appeal.
    
    Í. Whore bonds loaned by the Government to aid in the construction of a railway do not import that the company shall refund the interest thereon as the Government advances it, the right of the Government to recover it prior to the maturity of the bonds depends wholly on the statutory conditions on which the bonds were loaned.
    
      II. In construing statutes courts are not at liberty to recur to tlio views oí members of Congress in debate, but may recui; to tho history of the times when an act was passed.
    III. The title of a statute, especially in Congressional legislation, furnishes little aid in the construction of it.
    IV. The act incorporating the Union Pacific Railroad (Act 1st July, 1862, 12 Stat. L., p. 489, § 6) imports that the Government shall pay the interest on the bonds which it loaned to aid in the construction of the road, and look to the company for payment thereof according to the terms prescribed by the sixth section.
    V. In construing statutes the words must bear the sense which by construction is put upon them.
    VI. In a statute which authorizes the loan of Government bonds to aid in the construction of a road, the words “said company shall pay said bonds at maturity” do not bear the sense of requiring tho repayment of each advance of interest on the bonds so soon as each is made. They do not give a double signification to “ maturity,” extending it to each payment of interest as well as to the principal. They imply only an obligation to pay both when the time for paying the principal has arrived.
    VII. The word “maturity” in bonds and similar instruments usually refers to the time fixed for their payment, which is the termination of the period for them to run.
    VIII. The Aot 1st July, 1862, (12 Stat. L., p. 489, § 6,) prescribes a special fund to re-imburse the Government for interest paid by it on its bonds, the surplus, if any, to be applied to the principal. It is fair to infer that Congress supijosed when the act was passed that tho-services of the road would equal the interest advanced by the Government.
    IX. The Act 2d July, 1864, (13 Stat. L., p. 358, § 5,) which provides that only half of the earnings of the Union Pacific Railroad, instead of the whole, shall be retained and applied to the iDayment of the bonds loaned the company, strengthens the presumption that the interest on such bonds is not to be paid by the company until the maturity of the principal debt, otherwise the half relinquished would manifestly he of no benefit to the company.
    X. The Act 3d March, 1873, (17 Stat. L., p. 508, § 5,) which directs the Secretary of the Treasury to withhold “ all payments to the amount of payments made by the United States for the interest” on the bonds loaned the Union Pacific Railroad, and which provides for testing judicially the right of the company “ to recover the same,” does not repeal any portion of the charter of the road, hut moans nothing more nor less than the remission to the judicial tribunals of the question whether the Government can recover back its advances for interest prior to the maturity of the bonds.
    
      
      The Reporters’ statement of tlie ease:
    The court found the following facts:
    I. The claimant, between the 1st day of January, 1873, and the 1st day of March, 1874, both inclusive, at the request of the-defendants, rendered to them, certain valuable services in the. transportation of their mails over the Union Pacific Eailroad, the same being transported at fair and reasonable rates of com-pen.sation, not exceeding the amounts paid by private parties, for the same kind of service, as provided by the act of 1st July,. 1802, (12 Stat. L., p. 489,) amounting to $385,784.75. The-claimant’s accounts therefor have been stated to and duly allowed by the proper accounting-officers of the Treasury. After the rendition of these services, the claimant consented and offered to the defendants’ officers that one*half part of its-above earnings,, to wit, $192,892.37, be withheld from it, and applied' to and on account of certain payments for interest made by the defendants upon the bond described in the second finding, and the claimant demanded payment of the remaining moiety of $192,892.37. But the defendants’ officers paid to the claimant only $7,815.98, and refused to pay the balance of this moiety, to wit, $185,076.39, which still remains unpaid.
    The claimant, also, between the 1st day of February, 1871, -«and the 28th day of February, 1874, at the request of the defendants, rendejed- to them certain other valuable services in the transportation of military and Indian supplies upon said Union Pacific Eailroad. The fair and reasonable value of the services thus rendered amounts in the aggregate to the sum of 8655,112.22, and the claimant’s accounts therefor have also been stated, audited, and allowed by the proper officers of the Treasury. But the defendants have not paid the same nor any part thereof. The claimant has consented that one-half part of its above earnings, to wit, $327,556.11, be witkhkeld from it, •and applied upon the account of the payment for interest before referred to, and has demanded payment of the remaining moiety of $327,556.11; but the defendants’ officers have refused to pay such moiety, which still remains wholly unpaid.
    II. The defendants, at the request of the claimant, and for its use and benefit, at various times since the 1st day of January, 1866, have issued and delivered to it the bonds of the United States authorized by the act of July 1, 1862, (12 Stat. L., p. 489,) which bonds are not coupon-bonds, but are what is known as registered bonds, being in form and substance like the bond hereto annexed and forming part of these findings. All of sncli bonds were sold and disposed of by the claimant, and are held by third parties.
    Between the 1st day of July, 1806, and the 1st day of January, 1871, both inclusive, the defendants have paid the interest accruing from time to time upon such bonds, to the parties holding the same, to the amount of $4,530,466.41. Up to the 1st day of February, 1871, the defendants’ officers withheld from the claimant the one-half part of all moneys due to it, the claimant, for the transportation of mails and military supplies over the Union Pacific Railroad, and applied the moneys so withheld upon the account of interest paid by the defendants upon these bonds. The officers of the Government also paid the remaining moiety of such transportation-accounts to the claimant. The claimant lias not otherwise refunded the $4,530,466.41 interest before mentioned, and a balance remains unrefunded after the credit of the one-half part of such transportation-accounts.
    Between the -1st day of July, 1871, and the 1st day of July. 1874, both inclusive, the defendants also paid to the third parties, for and on account of such interest on the bonds aforesaid, the further sum of $5,718,667.52. The claimant has not paid -or discharged such advances for interest, but has tendered to the defendants the one-half part of its accounts for transportation, as set forth in the first finding of fact, and the one-half part of any other transportation-accounts which it may have for other services rendered to the defendants. But the defendants, by their proper officers, have refused to receive such one-half part of such accounts in part payment of such interest, and, on the •contrary, have insisted and claimed the right to retain the whole amount of such transportation-accounts and apply it upon the advances made in payment of the interest accruing upon such bonds.
    
      Copy of a bond referred to in the foregoing findings.
    
    The UNION Pacific Railroad Company,
    Register’s Office, Treasury Department.
    Act of July 1,1862. Act of July 2, 1864.
    1,000.] " [No.
    It is hereby certified that the United States of America are Reporters’ statement of tlie case, indebted unto--, or assigns, in the sum of one thousand dollars, payable on the-day of-18 — , with interest from the ———, 18 — , at six per cent, per annum, payable semiannually, in lawful money, on the 1st day of January and July in each year. This debtis authorized by acts of Congress approved July 1st, 1862, and July 2nd, 1864, and is transferable on the. books of this @ffice.
    Entered-, Washington, --18 — .
    Eegistered
    JOHN ALLISON, [SEAL.]'
    
      Register of the Treasury..
    
    - Payable thirty years from date.
    The claimant requested the court to find, as established by the evidence, the following facts:
    That the petitioner paid to the United States, on account of interest, one-half of all moneys due petitioner for transportation up to the 12th of January, 1871, and^the defendants have received and credited the same to the claimant, and that the United States up to the same period paid the remaining half' part of the sums due the petitioner for transportation in money. On the 12th of January, 1871, the Secretary of the Treasury ordered “that the entire amount of earnings of petitioner for services performed for the United States should be retained by the Government to set off the amounts of interest paid by it on their accounts.”
    That thereupon theact of Congress of March3,1871, was passed, directing the Secretary of the Treasury to pay over in money to the petitioners one-half the compensation for said services, as being in accordance with the act of July 2,1864, and thereupon such payments were thereafterwards made, commencing with the period when the same were stopped by the Treasury order down to the passage'of the act of March 3, 1873, sec. 2, and the present petition seeks to recover the payments withheld in pursuance of said last-named act.
    This request was refused (except as to those portions thereof set forth in the findings of the court) as irrelevant and immaterial.
    
      
      Mr. Attorney-General Pierrepont for the United States, appellants.
    The suit is by a private corporation against the United States. That the Union Pacific Bailroad Company is a private corporation, hardly needs authority to decide. (12. II. Go. v. Peniston, 18 Wall., 31.)
    Your final judgment in this case will determine the disposition of far more millions of money than were ever determined by any single judgment before, and the moral and political consequences which must follow will largely outweigh all the pecuniary considerations. More than two hundred millions of dollars will be taken from the property of your fellow-citizens and transferred to the pockets of the stockholders of these roads if you affirm the judgment below. More than two hundred millions of dollars richer will be these favored corporations if you give the statutory constructions which they claim.
    The primal question is whether the railroad company is bound •to re-imburse the interest as the same falls due on the bonds borrowed from the Government, or whether the company may postpone the payment of the interest (which the Government pays half-yearly) until the maturity of the bonds at the end of thirty years. If this question is decided in favor of the Government, then the other questions dispose themselves in natural sequence and admit of no debate. But should the decision on the first question be adverse to the Government, then the only other question to be considered is whether the Government can retain all the earnings of the company earned in the service of the Government, or whether one-half of those earnings must be paid over to the road.
    In 1862, Walter S. Burges, Benj. H. Cheever, Ben. Holliday, and their associates, obtained a charter from the United States to build the Union Pacific Bailroad, and for that purpose they were created a body-corporate with enormous grants and privileges. For all these advantages what did the Government require of this private corporation ? That it should, by first mortgage of the road to the United States, secure the bonds issued, (section 5, act of 1862;) and section 6 of the act reads thus:
    “ 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 hind 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 per centum of the net earnings of said road shall also be annually applied to the payment thereof.
    “ Sec. 7. And be it further enacted, That said company shall file their assent to this act, under the seal of said company, in the Department of the Interior, within one year after the passage of this act, and shall complete said railroad and telegraph from the point of beginning, as herein provided, to the western boundary of Nevada Territory before the first day of July, one thousand eight hundred and seventy-four.”
    This princely donation was promptly accepted by the corporation, and “ their assent to this act ” was duly filed in the “Department of the Interior,” and thus the company generously agreed not to impose upon its munificent donor by charging the United States “higher rates than those paid by private parties for the same kind of service.” Perhaps this was regarded by the company as a highly valuable consideration.
    The eighteenth section of the act provides that “ Congress may at any time, having due regard for the rights of said companies named herein, add to, alter, amend, or repeal this act.” Two years went by; and emboldened by past success, and using-means now known of all men, this corporation invaded and subjugated the Congress of the United States and procured the passage of the act of 1864, which grants very large additional donations and privileges besides. Sections 5 and 10 of the act of 1864 are as follows:
    “Seo. 5. And be it further enacted, That the time for designating the general route of said railroad, and of filing a map of the same, and the time for the completion of that part of the railroads required by the terms of said act of each company, beT and the same is hereby, extended one year from the time in said act designated$ and that the Central Pacific Eailroad Company of California shall be required to complete twenty-five miles of their said road in each year thereafter, and the whole-to the State line within four years, and that only one-half of the compensation for the services rendered for the Government by said companies shall be required to be applied to the payment of the bonds issued by the Government in aid of the construction of said roads.”
    “Sec. 10. And be it further enacted, That section five of said-act be so modified and amended that the Union Pacific Eailroad Company, the Central Pacific Eailroad 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 and1 telegraph-lines to an amount not exceeding the amount of the-bonds of the United States, and of even tenor and date, time and maturity, rate and character of interest with the 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. And said section is further amended by striking out the word ‘forty’ and inserting in lieu thereof the words ‘on each and every section of not less than twenty.’”
    The court will not fail to note that this act of 1S64, by which so much is given without any consideration, does not even require assent from the company, or a promise not to impose upon the Government by exorbitant rates. In 1870, Secretary B’outwell declining to pay for services while the company owed the United States for interest, the question was referred to the-Attorney-General, and he decided that under the law the company was not entitled to receive compensation from the United States for services while the interest paid on the bonds loaned by the Government had not been re-imbursed. The matter came before Congress, and on the 3d March, 1871, (Stat. L., vol. 16, p. 525, § 9,) Congress provided that “ the Secretary of the Treasury is hereby directed to pay over in money to the Pacific Railroad Companies mentioned in said act, and performing services for the United States, one-half of the compensation at the rate provided by law for such services heretofore or hereafter rendered: Provided, That this section shall not construed to affect the legal rights of the Government or the obligations of the companies, except as herein specifically provided.” In 1873 Congress awoke to the shame of taxing the people to enrich private corporations, and passed the Act of March3, (17 Stat. L., p. 508.)
    “ That the Secretary of the Treasury is directed to withhold all. payments to any railroad company, and its assigns, on account of freights or transportation Over their respective roads, of any kind, to the amount of payments made by the United States for interest upon bonds of the United States issued to any such company, and which shall not have been re-imbursed, together with the five per cent, of net earnings due and unapplied, as provided by law; and any such company may bring suit in the Court of Claims to recover the price of such freight and transportation; and in such suit the right of such company to recover the same upon the law and the facts of the case shall be determined, and also the rights of the United States upon the merits of all the points presented by it in answer thereto by them, and either party to such suit may appeal to the Supreme Court; and both said courts shall give such cause or causes precedence of all other business.”
    The act of 1862 created the corporation upon conditions which the company accepted, and filed their assent, as provided by section 7; Congress reserving the power to repeal, alter, or amend the act. The act of 1871 directed payment of one-half the amount earned for services rendered to the United States; but expressly provided “ that this section shall not be construed to affect the rights of the Government or the obligation of the company,” &c. The act of 1873 directs the Secretary of the Treasury to withhold all payments for services of every kind to> the amount of interest upon bonds of the United States issued to the company, which shall not have been re-imbursed, together with the five per cent, of net earnings due; and remits all the rights and obligations .of the corporation and of the United States to the courts, “ to be determined upon the merits of all the points presented.”
    I submit:
    First. That the plain meaning and intent of Congress is apparent from these four statutes when construed together, and that the question remitted to the court is, whether the United States are entitled, under the charter which the company formally accepted, to retain the whole value of the services rendered the United States toward payment of the interest advanced by the' Government upon the bonds loaned to the company 5 and it is further claimed by the Attorney-General that, so far as this question might be embarrassed by the acts of 1864 and of 1871, these acts are repealed by the act of 1873. The suit of the company is to recover for one-half the value of the services rendered, and the judgment below is for that only; but the counterclaim set up by the Government was dismissed, and the whole question of the liability of the company to pay the interest on the Government bonds before their maturity at the end of thirty years is fairly before the court.
    Seqond. That the Union Pacific Eailroad Company is a private corporation has been settled, (The Company v. Peniston, 18 Wall., 31;) and the principles of statutory construction in a case like this are well defined, Ohio Life and Trust Company v. Debolt, (16 How., 435.) See also Dubuque and Pacific Railroad Company v. Litchfield, (23 How., 88, 89,) and the opinion of Attorney-General Black, 9 Opinions of Attorneys-General, 59, CO.
    Third. That, applying these and other -well-settled principles of construction to the statutes relating to this company, there is no difficulty in ascertaining their true intent and meaning— they are u carelessly drawn,” as Senator Carpenter in his report justly says, but when all the parts are examined together, the purpose of Congress is entirely clear, from the language of the statutes themselves.
    Fourth. Take the act of 1802, which granted the charter :
    “Sec). 5. Andbe itfurther enacted, Thatforthepurposeshereiu 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 one thousand dollars each, payable in thirty years after date, bearing six per centum per annum interest, (said interest payable semi-annually,) which interest may be paid in United States Treasury notes or any other money or currency which the United States have or shall declare lawful money and a legal tender, to the amount of sixteen of said bonds per mile for such 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, the issue of said bonds and delivery to the company shall ipso facto constitute a first mortgage on the whole railroad and telegraph, together with the rolling-stock, fixtures, and property of. every kind and description, and in consideration of which said bouds may be issued.”
    There is nothing ambiguous about this : the Government proposed to advance its bonds to the company, bearing interest at six per cent., “said interest payable semi-annually.” To secure these bouds according to their terms, and not otherwise, the company agreed by formal assent (under section 7 of the act) to give a first mortgage, and the mortgage was executed when the company received the bonds.
    Fifth. But the very next section not only.proves that the company agreed to give a first mortgage to secure the bonds according to their tenor, but also agreed to give additional security for the interest as well as the principal.
    Sixth. The next step is to consider the act of 1804,' by which immense and new advantages and donations were bestowed upon the company. By section 4 of this prodigal act, the “ mineral land” reserved to the United States was declared “ not to include coal and iron land.” By section 5 the time was extended one year, and provided also “ that only one-half of the compensation for services rendered for the Government by said com-piany shall be required to be applied to the payment of the bonds issued by the Government in aid of the construction of said road.” By section 7 it is provided “ that so much of section 17 of said (original) act as provides for a reservation by the Government of a portion of the bonds to be issued to aid in the construction of said road is hereby repealed.” By section 8 it is provided that bonds may issue when only a part of the work required by the charter is done.
    
      Section 9 gives power to the company to construct' bridges and establish ferries. Section 10 allows the company to issue their first-mortgage bonds of even tenor, date, maturity, interest, and amount with the Government bonds loaned, “ and the lien of the United States bonds shall be subordinate to that of the bonds of the company. Section 15 provides for consolidating roads, &c. Section 18 provides that the United States shall extinguish Indian titles. Section 19 provides for the issuing of patents. The last section is as follows: Congress may, at any time, alter, amend, or repeal this act.”
    By this act of free gifts the company is required do assume nothing, do nothing, and assent to nothing, but the absolute-right to amend or repeal is, indeed, reserved.
    Seventh. We next come to the act of March 3,1871, entitled,. u An act making appropriations for the support of the Army for the year ending June 30,1872, and for other purposes.”' This act is somewhat long, and at page 525, 16 Stat. L., will be found a little section, Uo. 9, in which are these words:
    “ The Secretary of the Treasury is hereby directed to pay over in money to the Pacific Eailroad Companies mentioned in said act, and performing services for the United States, one-half of the compensation at the rate provided by law for such services, heretofore or hereafter rendered: Provided, That this section shall not be construed to affect the legal rights of the Government or the obligations of the companies, except as herein specifically provided.”
    This was passed just after Attorney-General Akerman had decided that the Secretary was not authorized to pay the money. — (See Opinions, 13, 300.) It is true that the act provides that no construction shall be “ given to that section which shall affect the legal rights oí the Government or the obligations of the company.” Of course, the Secretary began to pay the-company as the statute directed, and continued to pay the-interest on the bonds loaned to the company. Two years sufficed to develop the iniquities which were perpetrated under cover of these statutes, and Congress passed the act of March 3,1873, above cited, by which the Secretary is forbidden to pay the company, and under which the whole question is remitted to the courts. — (17 Stat. L., p. 508, sec. 2.) Section 4 provides for bringing a suit in equity against this corporate absorber of the public property, which suit is now pending in this court. By tbe bill filed, and by tlie public records, it appears that tbis corporation has received from the Government, besides the enormous grants of lauds and other properties, franchises, and privileges, twenty-seven million two hundred and thirty thousand five hundred and twelve dollars ($27,230,512) in Government bonds; nine millions of interest paid by the Government and not re-imbursed or satisfied by any earnings of the company ; that a mortgage of twenty-seven million two hundred and thirty-seven thousand dollars, ($27,237,000,) with interest payable half-yearly at sis per cent., has been put upon the property of the company, and the proceeds realized; that a land-grant- mortgage of $10,400,000, with interest at seven per cent., payable half-yearly, has also been made by the company, and the bonds sold. That on the first day of September, 18G9, the company issued its bonds, called income-bonds, to the amount of ten millions of dollars, ($10,000,000,) with interest at ten per cent., payable half-yearly. The company has also issued what it calls “ bridge-bonds? to the amount of two million five hundred thousand dollars, ($2,500,000,) payable in gold, with interest half-yearly at the rate of eight per cent, per annum, and on the 12th of December, 1872, the company ordered another mortgage of $16,000,000 to be made, beariug interest at seven per cent, per annum • and that the stock issued is $36,762,300 ; and that there are numerous other outstanding obligations and contracts involving the company.
    Eighth. The fact that the company, under the act of 1864, issued their mortgage to secure their bonds for the same amount as the Government advanced, and made the interest on said mortgage-bonds payable half-yearly, is conclusive as to the understanding of the company when they filed their assent to the charter; andafter issuing that mortgage in compliance with the statute, it is discreditable to claim that they understood that the Government interest was not to be paid until the bonds matured. The company gave their own construction and proved their own understanding of the act of 1862 when they made their mortgage under the act of 1864, which expressly provided that their mortgage-bonds should in tenor, date, interest, and in every respect be a counterpart of the Government bonds.
    By section 5, act of 1862, and the assent filed, the' railroad company agreed that the receipt of the Government bonds should “ ipso facto constitute a first mortgage on the whole line of the railroad” to secure the bonds. To secure what bonds? Why, the bonds which the road received. And what bonds did the road receive ? Bonds bearing interest at six per cent., payable half-yearly — notpayable at the endóf thirty years. The mortgage is to secure just these bonds according to their tenor, not some other bonds of entirely different tenor. It requires no refinement of metaphysics to construe this statute; common sense and common honesty is alL that is needed. If the bill had read that the mortgage given by the road to secure the Government bonds, whose interest was payable half-yearly, should be so construed as to allow the road to postpone all its interest until the end of thirty years, not an honest man in that entire Congress would have voted for it, and no reputable man believes that the bill could have received a single uncorrupted vote. Had the corporators who, under this statute, have received sixty-five millions of Government bonds, bearing interest at six per cent., payable half-yearly, stated that they proposed to have the law so framed that at the end of thirty years the Government would have actually paid out three hundred and eighteen millions for interest, and that at the end of the same period the roads would only be bound to pay one hundred and seventeen millions of interest, the corruptest thief that ever polluted congressional halls would not have dared to vote for it. The statute has no sucli meaning; it can receive no such construction from this court.
    Ninth. But the claimants contend that “ surrounding circumstances” may be considered in giving construction to the original grant; and the counsel ask how the road was to be built if the company were to pay interest on the bonds advanced by the Government ? Why, just as every other railroad has been built; with this difference, that the Union Pacific Eailroad Company actually received more from the Government than the fair cost of the whole road. ■»
    Tenth. It was urged below that it would be oppressive to retain all the earnings for services to the Government and apply them toward the payment of the indebtedness of the company, because these services might amount to more than the interest in some possible future. Suppose it did. All the better for the company; it would then be allowed interest on the surplus, and, at full rates for services, it would be paying off its debt through the very business which the Government gave it. But when the company shall have paid the Government the $9,000,000 for interest which it now owes, and its indebtedness of some sixteen hundred and eighty thousand dollars ($1,680,000) annually accruing besides, there will be time enough to discuss this hardship.
    Eleventh. The learned counsel below referred to the debates-in Congress to support his construction of the statutes. It has been often held that such debates could have no just influence. Mdridge v. Williams, 3 How., 1; 6 Opin., (Cushing,) 464; 9-Opin., (Black,) 57.
    Twelfth. Those parts of the acts of 1864 and 1871 which-directed payment, without consideration, of one-half the earnings above mentioned are clearly repealed by the act of 1873, and it is now left to this court to say what are the u legal rights and obligations” of the Government and the corporation under the charter which the company accepted and the law as it now stands.
    
      Mr. JE. W. Stoughton for the Union Pacific Eailroad Company, appellee:
    It will not, I suppose, be questioned that when the charter of incorporation, contained in the act of 1862, was accepted by the corporators, a contract was created between the United-States and the company, binding upon the latter and not to be-justly violated by the former. This contract is now presented to the court, that the rights of the parties to it may be determined ; and these are to be ascertained, if its provisions are not clear, by such cotemporaneous and surrounding circumstances as may illustrate the intention of the contracting parties. The work to be accomplished by the corporation thus created was of great national importance. The road to be built was to extend through a vast uninhabited territory, over which savage tribes roamed, and along which, to repress their outrages and maintain control over our national domain, especially in time of ' civil war, it was neces'sary to transport troops and military supplies, at great expense and risk, at insufficient speed, and in force and quantities quite inadequate to our distressing national wants. Capital was at that time hoarded, and capitalists were slow to embark upon an enterprise so dark and unpromising as the building and equipment of two thousand miles of railway along the desert plains, rocky slopes, and fruitless wastes intervening between the Mississippi Eiver and the Pacific coast. Many of our citizens could not foresee when the insurrection then raging would be subdued, so as to render the investment of capital reasonably safe, even for ordinary business enterprises, and few were bold or patriotic enough to invest their means in one whose promised returns could be seen only in the far future, and then but dimly. The immediate and pressing wants of the Government made the road a national want, and it was plain to see that if it could be constructed its use would be largely and most profitably enjoyed for national purposes, affording vast and rapid facilities for the transportation of troops, supplies, and mails, cheapening their conveyance, rendering the control of Indian tribes comparatively easy and safe, and ultimately but surely increasing the value of our public lands, and rendering their settlement and cultivation safe and profitable to our people, and finally linking by ties of social and commercial intercourse the eastern with-the most distant west of our common country.
    In the construction and operation of such a highway the feeblest vision could discern vast national benefits; while the far-sighted and hopeful could not so penetrate the future as to discover with reasonable certainty when a return for capital invested in it, as a private enterprise, could be expected. St-and-ing here, far in their advance, we can hardly realize how the obstacles since overcome appeared to them ; but I think we can clearly understand that the great and costly enterprise proposed by the act of 1862 must have been then regarded as eminently a public national work, to be subjected primarily to national uses and control, for the safety and benefit of our people, and was in no just sense a scheme proposed for private ends, to be worked out and accomplished solely by private capital. The frame-work of the charter; the declared national purposes it sets forth ; the Government control assumed; the Government aid proffered; the public uses to which the work when completed was to be subjected; and finally, the increased Xiublic aid promised by the act of 1864, when it was found that the requisite private capital could not be obtained under that of 1862, all concur to establish that the work was by our Government deemed of such paramount national importance that only by a. narrow, illiberal, and strained construction canituow be contended that any of the Government aid afforded, whether of bonds or land, should be regarded as donations to the company. Plainly they were not, but are to be viewed as reasonable national contributions to aid in the construction of a great national highway along our public domain, connecting the East with the far West by telegraph-wire and railway j and with such profit and comfort to our people has this been accomplished, that deprivation of these benefits for five years — nay, for one— would be by them considered as a greater public misfortune than the loss of the entire sum, principal and interest, due or to become due upon the bonds in question. Let us now briefly look at the provisions of the charter as found in the act of 1862, and there learn whether, by its true construction, the company expressly or by implication became bound immediately to re-imburse the Government for the interest it should pay upon said bonds.
    If we refer to the fifth section in connection with the third, we find it therein provided that, for the purpose of aiding in the construction of said railroad and telegraph line, and to secure the safe and speedy transportation of the mails, troops, munitions of war, and public stores thereon, the Secretary of the Treasury shall, upon the certificate of commissioners thereby created of the completion and equipment of forty consecutive miles of said railroad and telegraph, issue to said company bonds of the United States of $1,000 each, payable in thirty years after date, to the amount of $16,000 per mile. To secure the repayment of these to the United States as thereinafter provided, with all interest thereon which should have been paid by the United States, the issue of said bonds and delivery thereof to the company was declared to constitute, ipso facto, a first mortgage on the whole line of said railroad and telegraph, together with all rolling-stock and fixtures ; and a failure to redeem said bonds, or any part of them, according to the provisions of the act, when required so to do by the Secretary of the Treasury, was to be followed by a forfeiture of all rights and property of the company. By the sixth section of the act it was declared that said company should pay said bonds at maturity, should keep said railroad and telegraph line in repair and use, and at all times transmit dispatches over said telegraph-line, and transport mails, troops, munitions of war, supplies, and public stores upon said railroad when required so to do — the Government at all times to have a preference for all the uses aforesaid; and all compensation for services rendered for the Government were to be applied to the payment of said bonds and interest until the whole amount should be fully paid. And it was also provided that after said road should be completed, until said bonds and interest were paid, at least five per centum of the net earnings of said road should be annually applied to the payment thereof.
    The seventeenth section of the act further provides that, should the company fail to complete the road and telegraph-line within a reasonable time, or to keep the same in repair and use, Congress was authorized to complete or put them in thorough repair, as the case might be, and to take the income thereof for re-imbursement; and it further provided that the roads therein mentioned must be ready for use, from the Missouri to the navigable waters of the Sacramento River in California, by the 1st of July, 1876, or with their appurtenances, rolling-stock, &c., be forfeited to and taken possession of by the United States.
    In view of these very severe provisions, involving a forfeiture for faliure to pay bonds, or any part thereof, at maturity, or to finish and equip said roads and telegraph-line, and keep the same in use, it was indispensable that the company should not at the outset be crippled in resources; and as but little income — not enough to pay expenses — could be expected until at least a considerable part of the road should be in operation, it is highly improbable that either party intended the company should pay interest accruing on the bonds it might receive during the early stages of the construction of the work.
    It was soon ascertained, however, that the necessary means to start the work could not be obtained under the unfavorable terms proposed by the act of 1862, and in consequence thereof the act of 1864 was passed. By this the time of designating the route of the road and for completing the same was extended for one year; the Secretary of the Treasury was authorized to issue bonds when a part of the work on each twenty miles of the road should be done, instead of waiting until forty miles should be ready for use; the clause in the act which required the Government to reserve a certain portion of bonds to be issued was repealed; the lien of the United States upon the road, &c., as security for bonds to be issued, was subordinated to one to secure a like number and amount to be issued by the company; and by the fifth section it was declared that only one-half of the compensation for services rendered for the Government by said company should be required to be applied to the payment of the bonds issued by the Government in aid of the construction of said road; and in view of these very important modifications in favor of the company, it was provided that the number of Government directors should be increased from two to five.
    Having thus stated or referred to the principal features of the acts bearing upon the questions here raised, it is insisted, on behalf of the appellee,
    I. That by the true construction of the act of 1862, even when considered irrespective of that of 1864, no obligation devolved upon the company to re-imburse the Government until the maturity of said bonds, for its payment of accruing interest thereon, except from the defined sources mentioned in the sixth section.
    1st. The company did not become liable upon the bonds to the holders thereof; for these were to be issued by the United States as obligors, and hence such obligation as was incurred by the company in consequence of their issue and delivery ■ must be found in the charter of incorporation. The declared purpose of the Government in issuing them, and in granting lands, was to aid in the construction of a railroad and telegraph line, thereby to secure the safe and speedy transportation of its mails, troops, munitions of war, and public stores; and the reasons which induced it «to grant lands absolutely for this national object might well have led to the issue and absolute delivery of bonds upon like terms for the same purpose. Hence we must look to the terms of their issue and delivery as prescribed by the act to ascertain the obligations of the company; for their proceeds were to be applied to a use in which the Government as well as the company had a deep interest, and were in no just sense to be regarded as a mere loan of money or credit. It was at first supposed that such moneys as might become due from the United States for services rendered by the company could, without peril to the latter, be withheld from it, thus providing a fund applicable to the re-imbursement to the Government of its payments of interest; and it was also quite clear that the application of 5 per cent, of net earnings to a like purpose, after the road should be completed, could result in no serious embarrassment. It could not be foreseen to what sums the Government would be annually entitled from these two sources long prior to the maturity of the bonds. They might greatly exceed the interest payable, and this at the time was anticipated, as appears from the language of the act of 1862; but it could not have been supposed that for a considerable period after the payment of interest on the bonds first to be issued any amounts whatever would be' derived from either source. It is now, however, insisted by the Attorney-General — and upon this alone his argument is based — that there was lurking under these express provisions of the act an implied obligation resting upon the company to re-imburse immediately to the Government all sums it should pay for interest, and that this obligation at all times might have been and may be enforced against the company by judicial proceedings. Let us suppose this to be done and judgment obtained and collected, and what then is the situation of the parties under the contract ? By its terms all moneys derivable from the two sources mentioned in the sixth section are to be applied to the payment of said bonds and interest until the whole amount is fully paid. Are they to be retained by the Government after it shall have been re-imbursed in the manner supposed'?
    This would be monstrous injustice to the company, for the Government would thus receive large sums far in advance of any payments by it to be made, and witnout obligation to allow even interest upon the fund thus to be accumulated. Is it possible, therefore, to give to the act this construction ? The argument is that, by implication, the company is bound to the immediate re-imbursement of all interest the Government may ,pay, to be enforced by action or set-off, and still that it may ¡retain and claim as defined by the sixth section. These double ¡rights and remedies cannot co-exist. The right expressed is utterly inconsistent with that sought to be implied, and hence the latter cannot be invoked. If the parties had intended that all interest should be immediately re imbursed, the act would have so declared. As the Attorney-General would now have it construed, it should read that all interest paid by the Government upon bonds thus to be issued shall be immediately re-imbursed by tbe company; failing to do which, the road and its equipments may be forfeited at the option of the Secretary of the Treasury, or he may enforce re-imbursement by action. This is not the language of the act, and could not have been within the contemplation of the parties. The amounts devoted by the sixth section to the payment of principal and interest of the bonds, coupled with the' lien they created, afforded all the security which the Government intended to acquire, and all and, indeed, much more than the company could possibly afford to grant.
    II. As before stated, it soon became apparent that the road could not be constructed without the aid of large sums beyond those derivable from the lands or bonds to be furnished by the Government, and thereupon the act of 1864 was passed, containing the modifications to which I have referred. Among these, the most important were that authorizing the’ company to issue and sell bonds which should be a first lien to an amount equal to those to be furnished by the Government; and, as it was essential both to the Government and to the company that the interest on these bonds should be promptly paid, which could only be done from current income, it was provided that the Government, in aid of this, should not only surrender its priority of .lien, but should, as it did, agree that only one-half of the compensation for services rendered for it should be required to be applied to the payment of its bonds and interest. This promise, not to require such application of this one-half, was in effect an agreement to pay it over to the company, that it might be the better able to meet and pay the interest upon the bonds it was authorized to issue; but it is nevertheless insisted by the learned Attorney-General that, by force of this lurking implication, the company still remained liable to make immediate re-imbursement to the Government of the entire interest it should pay; and that notwithstanding its pledge not thus to apply the one-half, it might lawfully withhold it from the company and here in this court require its application, in xirecise violation of its pledge. It was with this extraordinary proposition that the court dealt below. I shall proceed to present to the court a few considerations in support of our x>rop-osition that the decree of the Court of Claims should be affirmed.
    First. I call attention to the very decisive acts and conduct of the Government, affirming in themost solemn manner, through a series of years, a construction of this contract in exact conformity with that now and at all times relied upon by the company, and in direct hostility to that asserted by the appellant. Such conduct, such acts, so persisted in, are of great if not controlling weight where language used in an agreement is indefinite or ambiguous; but here, where it is so plain as hardly to need interpretation, that given to it by the parties will be adopted.
    There has never been a time when the payments by the Government for interest upon these bonds has not been largely in excess of any sums due the company for transportation. If, therefore, the right .to set off the one against the other, or to recover these sums paid for interest, exist now, it arose and existed upon payment by the Government of the first six months’ interest due. But the Government for the period of six years never asserted such right, but, on the contrary, paid upon the utmost deliberation one-half the amounts due for transportation as they severally accrued. At the end of the fourth year the Secretary of the Treasury, acting upon a legal opinion of Mr. Akerman, Attorney-General, declined for a brief season to pay upon this basis; but the United States, by its act of Congress of March 3, 1871, ordered the payment to be made in money, and this command the Secretary obeyed, and up to March 3,1873, $2,357,459.67 was paid to the company — running through a period of six years — in direct affirmance of our right to recover here, and in plain repudiation of the claim set up in the answer. Conduct, acts much less cogent than these, have been often held by courts of justice to fix unalterably the construction of ambiguous contracts. For the law on this subject the court is referred to Chicago v. Sheldon, 9 Wall., 50; Stone v. Clark, 1 Met., 381'; Livingston v. Ten Broeolc, 16 J. E., 22; Railroad Company v. Trimble, 10 Wall., 377. See also Opinions of Attorney-General, (Taney,) vol. 2, 558.
    But we do not rest in this case upon the conduct or acquiescence of even the Secretary of the Treasury, for when that officer, on the ground stated, declined, in January, 1871, to make the payment here claimed, the Government itself, by its supreme law-making power, took charge of the very question here raised, and it was considered in the Judiciary Committee of the Senate, as one of its members said, (Congressional Globe, p. 1775,) all winter; and finally, although Senator Thurman stated he did not approve of the acts of 1862 and 1864, yet be, in common with a large majority of that committee, could not resist the conclusion that by their clear construction the Government must pay the one-half due the company for transportation, and was not entitled to assert any claim to be re-imbursed for interest beyond what should be extinguished by the application of the other half and of the 5 per cent, upon the net earnings of the company until the maturity of the bonds.
    On this report, which was adopted, the act of March 3, 1871,' was passed, expressly requiring the Secretary of the Treasury to pay the claim here sought to be recovered in money; and to that report and to the act thus passed the court is referred, as evidence not only that the agents of the Government had for years deliberately affirmed the construction of the contract now sought by the company, but that the Government itself, a party to this contract, when its subordinates sought to change the interpretation so deliberately adopted, affirmed it in the most impressive manner, upon the gravest and most careful consideration. Under this rebuke and mandate the Treasury acted until the 3d of March, 1873, when, under some influence not necessary to state, the act of that date was passed, not in any respect, even by inference, expressive of a legislative doubt as to the justice of the construction of the contract so long-acted upon, but merely permitting the Secretary of the Treasury to retain the money here claimed until the questions involved could be judicially determined.
    It is respectfully submitted that here the conduct of the Government has not been signalized by that liberality or fairness which citizens have a right to expect; and it may be further observed that, as no condition of the contract has been lately newly discovered by it, the language and conclusion of the Supreme Court, as expressed in 9 Wallace, page 54, may be here adopted and judicially acted upon, that “the interest of each (party to a contract) generally leads him to a construction most favorable to himself,” and where “the language used by the parties is indefinite or ambiguous, and hence of doubtful construction, the practical interpretation by the parties themselves is entitled to great, if not controlling, weight; and where its execution necessarily involves a practical construction, if the minds of both parties concur, there can be no great danger in the adoption of it by the court as the true one.”
    
      And it may also be added, as was said in Gilbert y. The United States, (1C. Gis. E., p. 28,) that a contract between an individual and the Government should be construed in the same manner as contracts between private parties.
    Second. It will not, I suppose, be disputed that the contract now existing between the parties is to be found in the provisions of the acts of 18C2 and 1864, and that this contract is wholly unaffected by the act of 1871 or of 1873. The act of ■1871 was designed to declare that by force of this contract the company ivas entitled to receive from the Government in money, and not by way of offset or otherwise, the one-half due for transportation, and that the Secretary of the Treasury must so pay it, while that of 1873 was intended merely to relieve the Secretary from that duty until the right of the company to recover the same upon the law and the facts should be determined. This act did not attempt to define what those rights were, nor in any respect to modify or change them, nor had Congress rightful power so to do, or in any manner to declare to what relief either party was entitled. Their respective rights were left precisely as stipulated in the contract, nor could the effect of the conduct of the parties, so far as that was capable in law of interpreting it, be in any manner varied or impaired, nor was this attempted. The entire operation of the act was to authorize the Secretary of the Treasury to withhold payment as therein provided; for it may be suggested that authority for the company to sue the United States already existed, and unless they could, independently of the act, interpose therein a claim by way of set-off, it is not perceived that the act authorized a proceeding in that form.
    The statute of 1864, on being accepted by the company, became incorporated into the contract of 1862, which was thus materially altered. Eeduced to plain English, the parties said this: By the contract of 1S62 the Government may hold and apply to the payment of bonds and interest the whole compensation due for transportation, but as modified in 1S64 only one-half that sum. When, therefore, the Government modified the agreement of 1862 so that but one-half the compensation for services should be required to be applied to the payment of the bonds and interest, it in substance agreed that it would not retain it for that purpose; and as it had no other claim whatever against the company, the real meaning of the modification was that this one-half should be paid to it as it fell due.
    
      Third. Whilst all this very clearly shows that by the true construction of this contract and the intent and meaning of the parties thereto it was well understood that, by stipulating for the application of these two sources to the payment of bonds and interest, the parties agreed that such of the latter as should not be re-imbnrsed thereby should remain unpaid, except at the pleasure of the company, until the bonds matured, it is very manifest that the Government, without a clear violation of its agreement, cannot apply, or ask the court to apply, the amount the company here seeks to recover toward satisfying the claims set up in the answer.
    At the time this agreement was modified, in 1864, it was of course, as heretofore stated, unknown to both parties what would be derived from either of the two sources I have mentioned applicable to the re-imbursement of the interest in question. One-half the sums earned by the company and payable by the Government, coupled with the 5 per cent., might or might not within a few years be sufficient to pay this, and the parties might well have supposed that long before the bonds matured all interest paid by the Government would be re-imbursed. And acting on that assumption, and from other motives, and especially in view of the fact that without this and other changes in the contract the road could not be built, the Government might have been quite willing, and upon ample consideration, to agree to pay and to pay one-half the compensation here claimed, instead of insisting upon the whole. Certain it is the one-half was agreed to be surrendered, and in such mode and form that an individual' party to a contract would hardly dare urge that he could nevertheless, through the aid of a court of justice, get the exact relief which he had solemnly promised upon sufficient consideration not to require.
    Another suggestion is entitled, as I think, to weight upon this branch of the case. It must be conceded, even on the theory of the counsel for the Government, that if the 5 per cent, which it is now seeking to recover from the company in another jurisdiction, coupled with one-half the compensation stipulated to be applied, shall be sufficient to extinguish the interest paid, no other or greater sums could be demanded by the Government; and hence it may well be that, as the amount due on account of the 5 per cent, cannot be determined in this action, it was the intent and purpose of the Government not to embarrass the company by two prosecutions for the same cause; for upon what ground can the Government here claim to recover a personal judgment against the company for the entire amount paid for interest, and in another jurisdiction seek a recovery on the same claim for the o per cent, to which, under the contract, it is entitled ?
    Fourth. By the contract between the parties, distinctly apparent from its language, and by them most emphatically interpreted, the interest payable by the Government was not to bo recoverable, except' from the two sources mentioned, until the maturity of the bonds, when the company, was bound to pay the amount thereof, with all interest which should then have been paid by the United States, and not from the sources mentioned repaid; and to secure such payment by the company the bonds were declared to constitute a lien upon its road and property, to enforce which the Government was authorized to resort to the most harsh and effective measures.
    At every turn and corner of this contract we find it bristling with provisions, with implications, quite hostile to the construction here asked for by the Government, and in entire harmony with that put upon it by the parties. It is quite unnecessary, as well as unprofitable, to pursue into minute details an examination of these for the purpose of learning the intent of the parties to it. They have declared it, have acted upon it, and certainly the most learned, the most technical legal intelligence must fail in the attempt to overturn or even unsettle the construction thus adopted. In the language of the late Judge Nelson, in the case cited in 9th Wallace — a great magistrate, who possessed that remarkable common sense more rarely found, said Macaulay, than the faculty of writing good poetry— “Where the execution of an executory contract involves a practical construction, if the minds of both parties concur, there can be no great danger in the adoption of it by the court as the true one.”
    In closing my observations, I will state that, by the amendment of the sixth section of the act of 1862 by the fifth section of that of 1864, the contract promising the payment here asked reads substantially thus: That only one-half of all compensation for services rendered by the company for the Government shall be required to be applied to the payment of said bonds and interest, and that the other half shall, as the same falls due, be paid to the company; and by the act of 1871, which is merely declaratory of the true construction of the prior acts, the Secretary of the Treasury was directed to pay over the other half to said company in money. Can this court, by any fair reading of the contract, come to a different conclusion? If this be the promise of the Government, and its promise be binding upon it, the case is disposed of, for it necessarily follows if it has no right to retain this one-half on account of interest, that amount is to be paid over to the company — irrecoverable certainly for the purpose for which the Government was bound not to retain it. And this conclusion is very decisive, not only in view of the covenants the contract contains, but from the arguments of Judge Curtis and of the Judiciary Committee, preceded and followed by the action of Congress, all which fitly expound the causes, motives, and considerations which led the Government to agree not to ask for any re-imbursement of the interest it should pay until the bonds should mature, except that obtainable from the two sources referred to, which might or might not before that date satisfy the sums thus paid. If they should hot, then, by the express terms of the agreement, the Government was to have a lien upon the road and all other property of the company as security for payment at maturity of the bonds, and of all interest theretofore paid. Until then no personal obligation of payment as against the company was to arise ; and then, if not met, the Government had the right to take possession of the road and its appurtenances and apply them to the use and benefit of the United States.
    I, therefore, respectfully submit that the judgment of the "court below should be affirmed.
    
      Mr. Sidney Bartlett, for the Union Pacific Railroad Company, appellee:
    There are, seemingly, but two general questions to be argued. Both lie within a narrow compass, and so, notwithstanding the magnitude of the interests involved, will not require a lengthened discussion. They are—
    1. Has the Government, under the provisions of the charter, in terms or by necessary legal implication, any present, immediate claim against the Union Pacific Railroad for re-imbursement of the interest paid by it on its bonds issued to that corporation, and if it has, can it enforce it by action of contract or set-off? If it has neither, the attempted set-off must be rejected and the judgment appealed from be confirmed.
    2. If, in terms or by legal implication, such immediate right to re-imbursement, action, or set-off would otherwise exist, has not Congress, by the charter, contracted not to use such claim or right as a set-off, either in form or effect, against one-half the sums that may be earned and due to the corporation for services in transportation described in the act?
    If such is the contract the corporation must recover, leaving Government to enforce its claim, either in the methods pointed out by the charter or (if it has the election) by suit at law.
    The ground on which the asserted existence of a present, immediate right in the Government to re-imbursement of the interest paid by it will be found to rest, not upon any distinct provision of the charter to that effect, but upon an implied assumpsit or covenant based on a construction to be put on one or more of its clauses, leading, as it is said, by necessary legal implication to that result.
    This makes it necessary to advert to the settled principles of construction adopted by this court in relation to endowments, by the Government, of individuals or corporations. We concede that, in all charters whose entire purpose and effect is to confer bounties on corporations, in consideration of advantages to the general public, the indisputable rule is that, in case of doubt, the construction is to be in favor of the Government. But governments, like individuals, must make numerous contracts in the course of administration, founded on the consideration of reciprocal agreements for services or duties made by those with-whom they contract, or securing the same by conditions and forfeitures, the performance of which is to inure to the direct pecuniary benefit of the Government itself, as distinguished from imputed benefits to the public at large under charters of mere endowments. To such classes of contracts the rule of construction before stated would seem to have no application, unless, indeed, all mere contracts by governments with individuals are to be governed, as to their construction, by rules not applicable to all other contracts.
    That the rule as first stated must be confined to charters making mere endowments, with no stipulations for services or for pecuniary returns by the party endowed, would seem to be clear on reference to the leading cases in this court and the grounds on which the rule is there rested. (Dubuque and Pacifie Railroad Company v. Litchfield, 23 How., 88, 89.)
    That the charter of the Union Pacific Railroad Company contains stipulations for services, priorities, and pecuniary advantages secured to the Government, either by condition or contract, is recognized in the title and throughout the act of 1862, and cannot be controverted.
    Under these provisions we submit that neither in terms nor by legal construction is there contained in them any expressed or implied assumpsit or covenant by the corporation on lohich, by action at law or set-off, Government can at any time compel the company to reimburse either the principal or the interest of the bonds issued by it.
    Let it be noted, we do not claim that the Government is not to be re-imbursed both principal and interest, nor that such reimbursement is not secured to it by the charter. Our first position is, that whensoever the duty of re-imbursement arises, then the remedy is not by assumpsit or contract; and that, as the set-off is based upon such assumpsit, if we are right,it must fail. We further submit that, rightly construed, the charter provides for a gradual re-iinbursement during the period in which the several bonds (whose maturities were to be scattered all over a period of thirteen years) are running to maturity, by the application of sums due from the Government from time to time for services, and by “ at least ” 5 per cent, of the net earnings of the company, and that payment of the balance, if any shall be found due on each bond as it matures, is secured, not by its being the subject of an action at law on assumpsit or covenant, but by a summary forfeiture or special foreclosure without the intervention of any court. Under this view, the first step is to find if, by legal construction or implication, any assumpsit or covenant to re-imburse the Government exists.
    1st. If the transaction were a mere loan of money by the Government, the law would doubtless imply a promise to repay it. But this was no loan of anything. It was a grant and issue of bonds payable at distant periods. By the same charter there is a large grant also of lands for the same expressed purpose. Any implied assumpsit or covenant to re-imburse or pay the value is as applicable to the one as to the other. Whatsoever obligation, therefore, rests upon the company as to either grant, is dependent wholly upon its distinct provisions, and not upon implication. If there be no such expressed provision, both the grants would be a gift, merely, in aid of a public enterprise.
    2d. We must turn, then, to the provisions of the charter to find if any of them legally import a covenant or assumpsit on the part of the company to re-imburse the Government.
    Now, throughout the charter,, the provisions to protect the Government, we submit, are in clear terms, either indisputable common law, strict conditions, or a mortgage which is shaped as a strict condition, allowing no equity of redemption, but providing a mere summary forfeiture. Thus by the seventeenth section, failure to complete the road by the 1st of July, 1876, (extended one year by the act of 1864,) “ the road and all its hereditaments and property of every kind and character shall be forfeited to, and taken possession of by, the United States; ” and by the same section unreasonable delay in construction, or omission to keep in repair, is to be redressed, not by action at law, but by taking possession. The mortgage (section 5) also is without any equity of redemption and with its summary foreclosure.
    3d. The only provision of the charter on which, seemingly, an argument can be based to show that there was created an assumpsit or covenant by the company .to pay the bonds and interest, is contained in the sixth section, and we again extract the portion of it which raises the question:
    i£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 samé, for all the purposes aforesaid.”
    Now, are those words, “ the grants aforesaid are upon condition,” to be construed in their natural sense and in accordance with the scheme of the Government, apparent throughout the act, to enforce its rights by condition of forfeiture, or are they to be held as implied covenants or assumpsits by the company to pay said bonds and interest as they mature 1 Of course they cannot be construed as a technical covenant. The charter is in its character a deed-poll, and the grantees are recipients, and not parties to execute it. The argument must be that acceptance implies an assumpsit to perform the conditions.
    Let us not he misunderstood. We have no doubt that when a charter grants powers which, if acted upon, are to carry with them duties; and, if the performance of those duties is secured, not by making the . same the subject of condition and forfeiture, but by a declaration in the charter “ that it shall be the duty,” or “ it shall be lawful for the company, and they are hereby required,” such duties can be enforced by mandamus and possibly by bill, but not by assumpsit or action of contract. (Yorli & W. M. By. Go. y. Begina, 18th Eng. L. & Eq., p. 199; Great West. B. B. Go. v. Begina, 18th Eng. L. & Eq., p. 211.)
    We admit, also, that in a deed-poll, where the context requires it, the court will construe the words, “ on condition,” not in their common-law sense, but to “ create a trust which those who take the estate are bound to perform, and in case of a breach, a court of equity will interpose and enforce performance,” as is settled by this court in regard to the word “provided,” in Stanley v. Golt, (5 Wall., 119-165.)
    But this by no means leads to the result that all the acts to be performed may be enforced at law by an action of contract.
    In this case, the acts to be secured by the condition are not the mere payment of money, but the performance of constantly-recurring services and duties, and it cannot be held that it was the design to enforce each of those acts by suit at law, or that one of them is to be the subject of such suit, and that all the others are common-law conditions. Nor is there any reason why payment of money should not, like the other duties, be the subject of condition.
    We need not add that the same word cannot be construed both as a condition and a contract, since in legal construction they are repugnant — the latter annihilates the former. The true question is: Did the Government, when it used this language, “ that the grants aforesaid are made upon condition,” &e., mean to hold over the company, in order to insure a punctual performance of the prescribed duties, the penalty of forfeiture, or did it mean to rely on suits at law to enforce those duties, most of which, if performance were refused, would involve immediate consequences too important to be left for redress to (“ particularly in times of war,” as set out in the eighteenth section) protracted litigation1? The duty to re-imburse the Government stands by the clause in the same category with the other duties which are made the subject of the condition, and cannot be severed from them.
    It will be noted that the performance of no one of the duties embraced by this condition (except the repayment of the bonds, which was secured by mortgage) had been in any other part of the act in any manner secured the Government, vital as such security was to its interests. The mortgage seemingly covered the debt only. The clause in question was apparently designed to make certain the performance of each and all the other duties, none of which were already secured, by holding over the company forfeiture of all its property or possessions in case of neglect or refusal. And it may be proper to add that, in case of mortgage where there has been no bond, note, or covenant to pay, no suit for the mortgage money can be maintained. (Drummond, admr., v. Richards, 2 Mumford, p. 337; 1 Powell, Mort., p. 60, note A.)
    It has been submitted that not only is there no expressed or implied contract to re-imburse the Government its payments either of bonds or interest, but, further, that the charter is framed with the purpose of providing for the gradual re-imbursement of both principal and interest up to the period of the maturity of each bond, and that the enforcement of the balance, if any, of such bond or class of bonds as they mature, with interest, was designed to be attained by a summary forfeiture or foreclosure of the company’s all in case of neglect. The ground pn which this position rests will, to save repetition, be presented in discussing the following less comprehensive proposition, namely:
    
      If any implied or expressed assumpsit or covenant to re-imburse the Government its payments, either of principal or interest, can be found in the charter, then we submit that it is clear that the assumpsit or covenant to pay the interest is to pay the same as each- and every bond or class of bonds matures, and not from time to time, eaeh six months, as it shall have been paid by the Government.,
    We come, then, to an analysis of the charter, to find what are its expressed or implied provisions as to the time or period at which the interest was to be re-imbursed to thé Government.
    1st. The earliest clause is the mortgage clause set out in section 5, which contains two provisions, neither of which fixes in terms the period at which either bonds or interest are to be reimbursed to the Government.
    The first clause declares that the amount of both bonds and interest shall be paid “as hereinafter provided.”
    The second clause provides for such payment, “when required so to do by the Secretary of the Treasury, in accordance with the provisions of this act.”
    Of itself, this last clause would tend to the construction that neither payment of principal nor interest was to be made as it accrued, in default of which forfeiture or foreclosure is to follow, as in common mortgages; but that, for some purpose or for some reason, the period of re-imbursement was to be fixed by the Secretary of the Treasury, and thereupon demand to be made by him. But postponing for the present the consideration of the effect of this last clause, and referring solely to the first one, it is clear, either that the time of payment is to be “ as hereinafter provided,” or that the mortgage strangely fixes directly no time of payment. Eesort then must be had to the subsequent provisions to find if in either of them the time of payment is “ hereinafter provided,” and the only one which expressly refers to the time of payment is the next, or the sixth, section. The words of that section are, the “ grants aforesaid are made on condition that the company shall pay said bonds at maturity.”
    Kow, literally, this provision is confined to the bonds merely, and construing, as the court is, a clause involving forfeiture of franchise and property, it may be open to contest whether interest was embraced by its terms. But assuming as we <do, that, by just construction, interest is to be re-imbursed, does the clause fix the time of re-imbursement as being any other than the maturity of the bonds'? Will the law, under such circumstances, import into the act the words, “ and each semi-annual payment of interest as it accrues ?” If such had been the purpose, why was it not so plainly stated % Why was it left to inference merely, from the words “ pay said bonds at maturity V’ One thing would seem clear from the terms used, namely, Unit whatsoever payment was to be made, the period of such payment is definitely fixed as the maturity of the bonds, and if words are to be interjected so as to include interest, why should there be made by them a further alteration by the insertion of a new and different period for its payment ? We turn next to the clauses which provide for the mode of payment, either partial or entire, according to the sufficiency of the means to which they refer. They are to be found in part of a clause of the sixth section, and are as follows :
    “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; * * * * and after said road is completed, until said bonds and interest are paid, at least 5 per centum of the net earnings of said road shall also be annually applied to the payment thereof.”
    Now, if it were possible to construe these clauses as a mere provision for a sinking-fund, leaving the company, on pain of forfeiture, to pay the whole interest semi-annually, they would have no bearing on the question under debate. But such construction cannot, it is submitted, be made. Not only is there no provision for investment of the funds and accumulation of interest and principal, but it is declared as to one of the funds that it is to be “annually applied” to the payment of both “ bonds and interest,” and as to the other fund, that it “ shall be applied ” to the same purposes, which, unless there be some different provision, legally implies that it is to be applied as it is received.
    We submit, then, that these clauses put an end to any claim that, by just construction, the act requires the company to reimburse the Government each six months the amount of interest paid on its bonds. Such a claim must suppose that, notwithstanding at the expiration of any six months the Government shall have in its hands of the company from the sources named sufficient to pay, not merely the interest then falling-due, but, as the act contemplates, possibly if not probably, an excess applicable to the bonds, and notwithstanding the act declares that those funds shall be applied to the payment of that interest, yet that it was designed, nevertheless, and that, the act requires, under pain of forfeiture, payment again of this very interest by the compa .
    We have thus, by reason of these provisions, an explanation of the clause in the fifth section which declares the company not to be in default until “ refusal or failure of said company to redeem said bonds or any part of them when required so to do by the Secretary of the Treasury in accordance with the provisions of this act.”
    
      We come nest to the question looking to those provisions as to the mode of repayment — at what time, -if at all, (if the Government may proceed by assumpsit for either bonds or interest,) does the act contemplate there may be a default, in the payment of interest? And we answer, such a default will occur at the maturity of each bond, if, from the sources thus provided, and upou a statement of the account and the application of the sums earliest due from the Government to the payment of the sums earliest due to the Government, be they principal or interest, any such interest shall be found to be due..
    This results from the fact that there is no provision in this clause for a statement of account by the Secretary of the Treasury each six months, and then, if the fund should prove insufficient for the payment of interest, that he shall make requisition upon the company to pay the balance. The only time of ultimate payment of either bonds or interest is fixed by the sixth section, namely, u shall pay said bonds at maturity;” under which, if any interpolation is to be made, it can only be one requiring interest to be paid, not semi-annually, but at the maturity of the bonds. It will be noted that these bonds were to be payable in thirty years 1'rom their respective issue,s, and that they were to be of dates scattered over the thirteen years allowed for construction, as each forty miles were completed. The fund thus provided for repayment would be first applicable to the payment of all accrued interest at the time of application, and next to the principal of the bonds earliest due, and so on to the end of the thirteen years.
    In concluding this point, it may be proper to advert to a consideration which has been and will be pressed by the Government, namely: that the positions thus assumed by the company may, or, as events have turned out, do lead to so large a pecuniary loss by the Government that it is improbable that the charter was designed or can be construed so as to produce these consequences.
    To this we reply:
    1st. That so far as the suggestion is founded upon the large presumable loss which (if the past and present use of the road by the Government is never to be enlarged, nor the earnings of the road increased) Government will sustain by reason of the loss of interest on the interest it has paid and must pay, unless re imbursed in some manner — that the provisions of the charter cannot be affected by subsequent results — that it is clear that Congress at the time acted upon tbe belief that the two funds which it provided to that end would or might probably pay, not merely the interest, but part, at least, of the bonds; or that if it should turn out otherwise, yet it was willing to take the risk of failure in that respect, secure as it was, by the mortgage and the provisions of forfeiture, of the ultimate payment of each bond and any balance of interest. It was all the security the Government could get. To superadd by way of construction an assumpsit to this, which forfeits to the Government all the property by means of which alone such assumpsit could be enforced or made of any value, would have been idle indeed. We may add, that if the court could judicially notice the reports of the Departments to Congress, it would, we believe, be found that the anticipated and actual saving to Government by the use of the road transcends the whole amount of principal and interest of the bonds.
    2d. We further add that the surrounding circumstances show that it was not and could not have been contemplated by Congress that the interest on the bonds was to be re-imbursed each sis months, otherwise than by the special funds thus provided in the act. The road contemplated by the act was to be two thousand miles long. The period limited for its completion was thirteen years. Through its entire length it was to be built through a wilderness. From what resources, if the payment of semi-annual interest on the bonds was contemplated by the act, could Congress have anticipated that such payment could be made? Eunning through a desert, it would have little or no income until completed — that is to say, during the thirteen years prescribed by the act. From the sales of its lands (after the same should, in parcels, on the completion of each forty miles, be conveyed to it by the Government) nothing could have been fairly expected until the certainty of the completion of the road should induce subsequent immigration and settlement, and then only in limited amounts spread over long periods of credits» The act contemplates that the subsidies of the Government, in bonds and land, would not be adequate to its construction, yet the, only apparent absolute means of the company to complete the enterprise were the subscriptions to stock. Could the framers of the act have hoped that parties would be found to invest their substance in the stock of this quasi public corporation in the face of a provision that, during the whole thirteen years to be employed in the construction of a road from which no income could be expected until its completion, they were, in some way, to find the means, each six months, to pay to the Government interest on the amount of its bonds, and that a failure to do so would involve the forfeiture of all past expenditures, and of the grants, rights, and franchises, in reliance on which they had embarked in the adventure 1 It would be a curious mathematical problem to find, if, until the completion of the road, the company had no resources but its two million dollars of stock-subscription to pay each six months the interest on the bonds during the thirteen years, how much of the proceeds of the subsidy thus given to aid the adventurers would have been left to build tjf.e road.
    If it shall be held that, but for the provisions of the sixth section of the act of 1872 and the fifth section of the act of 1864, Government would be legally entitled, by way of suit or set-off, to enforce against the company, as it accrued, each six months’ interest, then we submit that, by the force of those sections of the charter, the Government has contracted not to use that right to extinguish in any way the claim of the company to be paid in money the one-half of the sums earned in transportation.
    The provisions of the act of 1862 we again insert. They are as follows:
    “ * * * 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. * * *
    And after said road is completed, until said bonds and interest are paid, at least 5 per centum of the net earnings of said road shall be annually applied to the payment thereof.” •
    The provision in amendment of the charter, viz, section 5 of the act of 1864, (13 Stat. L., p. 356,) after extending the time for the completion of the roacl one year, is in the words following :
    
      uBe it further enacted, * * * That only one-half of the compensation for services rendered for the Government by said companies shall be required to be applied to the payment of the bonds issued by the Government in aid of the construction of said roads.”
    H'ow the two topics of these sections are: (1st.) The re-im-bnrsement to the Government of all its payments of bonds or interest. (2d.) The extent to which the sums due it, for the very services to recover which this petition is filed, shall be applied to re-imburse the very interest which is filed in set-off to this petition.
    On the faith of this agreement the charter was accepted and the enterprise undertaken. The record finds that up to February 1, 1871, the Government conformed to these terms of the charter and paid one-half of the sums earned by transportation to the company and applied the other half “on account of interest paid upon the bonds.”
    It further finds that the Secretary of the Treasury, in 1871, “had recently” withheld the whole sum due for services, and, as the prayer for additional findings (not allowed, because irrelevant and immaterial, and not because not proved) shows, “he directed that they be retained by the Government to set off the amounts of interest paid by it” on the company’s account. The record further finds that, thereupon, by the Act March 3, 1871, (16 Stat. L., p. 525,) it was enacted:
    “Sec. 9. That, in accordance with the fifth section of the act approved July 2,1864, entitled ‘An act to amend an act entitled “An act to aid in the construction of a railroad and telegraph-line from' the Missouri Eiver to the Pacific Ocean, and to secure the Government the use of the same for postal, military, and other purposes,” approved July 1, 1862,’ the Secretary of the Treasury is hereby directed to pay over in money to the Pacific Bailroad companies mentioned in said act, and performing services for the United States, one-half of the compensation, at the rate provided by law, for said services heretofore or hereafter rendered: Provided, That this section shall not be construed to affect the legal rights of the Government or the obligations of the companies, except as herein specifically provided.”
    
      The proviso at the conclusion of the section is clearly-designed to leave open for legal construction the question of when and how, under the charter; interest was payable, the act simply refusing to sanction the withholding the one-half transportation agreed by the charter to be paid to the company. The record further finds that subsequently, up to 1873, payments of one-half the transportation were made to the company in conformity to the charter.
    Nest comes the Act 3d March, 1873, (17 Stat. L., p. 508,) which contains the following clause:
    “ Seo. 2. That the Secretary of the Treasury is directed to withhold all payments to any railroad company and its assigns on account of freights or transportation over their respective roads, of any kind, to the amount of payments made by the United States for interest upon bonds of the United States issued to such company, and which shall not have been re-im-bursed, together with the 5 per cent, of net earnings due and unapplied, as provided by law; and any such company may bring suit in the Court of Claims to recover the price of such freight and transportation ; and in such suit the right of such company to recover the same upon the law and the facts of the case shall be determined, and also the rights of the United States upon the merits of all the points presented by it in answer thereto by them, and either party to such suit may appeal to the Supreme Court; and both said courts shall give such cause or causes precedence of all other business.”
    Under this act the present petition is filed, and we submit—
    1st. That the purpose of the act of 1873 is not to repeal the charter or any part of' it, if (to use the language of the eighth section) it could be so repealed, “having due regard to the rights of the company.”
    This is obvious, since it authorizes a suit to be brought by the company “ to recover the price of such freight or transportation.” If the intention was to repeal the provision as to payment of one-half of the transportation, it would have been idle to authorize a suit to recover for that very transportation.
    Again, the act does not order an appropriation of the sums due for transportation to the payment of interest or principal, as it would have done if its purpose were to treat the right as settled; it merely authorizes the same to be withheld. It authorizes a suit by the corporation in which “ the right of said company to recover tbe same upon the law and the facts shall be determined.” Now, the right of the company to be paid in some form is indisputable, but its right to recover without being subject to offset was the question as shown by the legislation above referred to (and by the action of the Secretary) to have been the one matter in controversy.
    Again, the provision is that the rights of the United States, upon the merits of all the “points presented in answer thereto,” are to be decided by the court. In answer to what? “The right of such company to recover the prices of such transportation.” If the purpose had been to provide for a set-off, such language could hardly have been used. The clear purpose of the act is to remit to the judicial tribunals the question which Congress had settled by the act of 1871, so far as it could settle it, namely: Whether, upon the true construction of the charter, the Government were legally bound to pay the company for one-half of the transportation, or whether it might retain that half toward interest on the bonds.
    2d, We submit that, having agreed with the company by the charter, in a provision which recites and refers to the not doubtful but certain future indebtedness of the company to the Government, that it will retain but half the sum which may be earned by the company by transportation, in order to provide for that future indebtedness, and that it will pay the other half in money to the company, the Government cannot, at law or in equity, be allowed, except by an express repeal of the provisions of the charter, to defeat the claim of the petitioners, even if the act of 1873 had provided for a set-off, which it does not, but merely for a decision as to the effect of the charter.
    3d. We submit further, if but for the act of 1871 the foregoing position could not be maintained, yet, looking to the attitude of things under which that act was passed, it must be deemed not a construction of past legislation, but as properly an amendment of the charter; and, as the record shows its acceptance by the company, and that it was acted upon by both parties from 1871 to 1873, it binds both parties.
   Mr. Justice Davis

delivered the opinion of the court:

The Union Pacific Railroad Company, conceding the right of the Government to retain one-half of the compensation due it for the transportation of the mails, military and Indian supplies, and apply the same to re-imburse the Government for interest paid by it on bonds issued to the corporation to aid in the construction of its railroad and telegraph lines, seeks to establish by this suit its right to the other moiety. The United States, on the other hand, having paid interest on these bonds in excess of the sums credited to the company for services rendered by it, insists upon its right to withhold payment altogether. One of the grounds on which this right of retention is sought to be maintained is by reason of the general right of set-off. It is true this right, as a general proposition, exists in the Government, and is commonly exercised by,it when settling with those having claims against it. But, manifestly, the rules applicable to ordinary claimants for services rendered the United States do not apply to this controversy. The bonds in question were issued by the United States, in pursuance of a scheme to aid in the construction of a great national highway; in themselves they do not import any obligation on the part of the corporation to pay, and whether, when the United States have paid interest on them, an obligation arises on the part of the corporation to refund it, depends wholly on the conditions on which the bonds were delivered to the corporation and received by it. These conditions are embodied in the legislation of Congress on the subject; and if, on a fair interpretation of this legislation, the corporation is found to be now a debtor to the United States, the deduction for interest paid on the bonds can be lawfully made. But if the converse of this proposition is ascertained to be true, the Government cannot rightfully withhold from the corporation one-half of its earnings.

In construing an act of Congress we are not at liberty to recur to the views of individual'members in debate, nor to consider the motives which influenced them to vote for or against its passage. The act itself speaks the will of Congress, and this is to be ascertained from the language used. But courts may with propriety, in construing a statute, recur to the history of the times when it was passed, and this is frequently necessary, in order to ascertain the reason as well as the meaning of particular provisions in it. (Aldridge v. Williams, 3 How., p. 24; Preston v. Browder, 1 Wheat., 120.)

Many of the provisions in the original act of 1862 are outside of the usual course of legislative action concerning grants to railroads, and cannot be properly construed without reference to the circumstances which surrounded Congress when the act was passed. The war of the rebellion was in progress, and the country had become alarmed for the safety of the Pacific States owing to complications with England. In case these complications resulted in an open rupture, the loss of our Pacific possessions was feared $ but, even if this fear were groundless, it was quite apparent that we were unable to.furnish that degree of protection to the people occupying them which every government owes its citizens. It is true the threatened danger was happily averted, but wisdom pointed out the necessity of making suitable provision for the future. This could be done in no better way than by the construction of a railroad across the continent.

Such a road would bind together the widely-separated parts of our common country, and furnish a cheap and expeditious mode for the transportation of troops and supplies. And if it did nothing more than afford the required protection to the Pacific States, it was felt that the Government, in the execution of a plain duty, could not justly withhold the aid necessary to build it. And so strong and pervading was this opinion, that it is by ■no means certain the people would not have sanctioned the ¡action of Congress if it had departed from the traditional policy of the country regarding works of internal improvements, .and charged the Government itself with the direct execution of the enterprise.

This enterprise was viewed as a national undertaking for national purposes, and the public mind was directed to the end to be accomplished rather than the particular means employed for the purpose. Although this road was a military necessity, there were other reasons active at the time in producing an opinion for its completion besides the protection of an exposed frontier. There was a vast unpeopled territory lying between the Missouri and Sacramento Eivers, which was practically worthless without the facilities afforded by a railroad for the transportation of person and property. With its construction the agricultural and mineral resources of this territory could be developed, settlements made where settlements were possible, and thereby the wealth and power of the United States ■essentially increased. And there was also the pressing want, in times of peace even, of an improved and cheaper method for tbe transportation of tbe mails and supplies for tbe Army and tbe Indians.

It was in tbe presence of these facts that Congress undertook to deal with tbe subject of this railroad. Tbe difficulties in tbe way of building it were great, and by many intelligent persons considered insurmountable.

Although a free people, when resolved upon a course of action, can accomplish great results, tbe scheme for building a railroad 2,000 miles in length, over deserts, across mountains, and through a country inhabited by Indians jealous of intrusion upon their rights, was universally esteemed at the time to be a bold and hazardous undertaking. It is nothing to the purpose that the difficulties in the way of the undertaking, after trial, in a great measure disappeared, and that the road was constructed at less cost of time and money than was considered possible. No argument can be drawn from the wisdom that comes after the fact. Congress acted with reference to a state of things supposed to exist at the time, and no aid can be derived, in the interpretation of its legislation, from the consideration that the theory on which it proceeded turned out not to be correct. The project of building the road was not conceived for private ends, and the prevalent opinion was that it could not be worked out by private capital alone. It was a national work, originating in national necessities, and requiring national assistance.

The policy of the country, to say nothing of the supposed want of power, stood in the way of the United States taking the work into its own hands. Even if this were not so, reasons of economy suggested that it were better to enlist private capital and individual enterprise in the project. This Congress undertook to do, and the inducements held out were such as it was believed would procure the requisite capital and enterprise. But the purpose in presenting these inducements was to promote the construction and operation of a work deemed essential to the security of great public interests.

It is true the scheme contemplated profit to individuals, for without reasonable expectation of this, capital could not be obtained, nor the requisite skill and enterprise; but this consideration does not in itself change the relation of the parties to this suit. This might have been so if the Government had incorporated a company to advance private interests, and agreed to aid it on account of supposed incidental advantages which would accrue to the public from the completion of the enterprise. But the Government proceeded on a wholly different theory. It promoted the enterprise to advance its own interests, and endeavored to enlist private capital and individual enterprise as a means to an end — the securing a road which could be used for governmental purposes. Whatever obligations, therefore, rest on the company incorporated to accomplish this purpose, must depend on the true meaning of the enactment itself, viewed in the light of cotemporaneous history.

It has been observed by this court that the title of an act, especially in congressional legislation, furnishes little aid in the construction of it, because the body of the act, in so many cases, has no reference to the matter specified in the title. (Hadden v. The Collector, 5 Wall., p. 110.) This is true, and we have no disposition to depart from this rule, but the title, even, of the original act of 1862, incorporating the defendant, (12 Stats., p. 489,) seems to have been the subject of special consideration by Congress, for it truly discloses the general purpose Congress had in view in passing it. It is “An act to aid in the construction of a railroad from the Missouri River to the Pacific Ocean, and to secure to the Government the use of the same for 'postal, military, and other purposesThat there should, however, be no doubt of the national character of the work which Congress proposed to aid, the body of the act contains these words: “And the better to accomplish the object of this act, namely, to promote the public interest and welfare by the construction of said railroad and telegraph lines, and keeping the same in working order, and to secure to the Government at all times (but particularly in time of war) the use and benefits of the same for postal, military, and other purposes, Congress may at any time, having due regard for the rights of said companies named therein, add to, alter, amend, or repeal this act.” (See eighteenth section of charter, 12 Stat. L., p. 497.) Indeed, the whole act contains unmistakable evidence that if Congress was put to the necessity of accomplishing a great public enterprise through the instrumentality of private corporations, it took care that there should be no misunderstanding about the objects to be accomplished or the motives which influenced its course of action.

If it had been equally explicit in the provision regarding the bonds to be issued in aid of the road, there would have been no occasion for this suit. But even in this particular, looking to the motives which led to the act and the objects intended to be effected by it, we do not think'there is any serious difficulty to get at the true meaning of Congress. The act itself was an experiment, and must be considered in the nature of a proposal to enterprising men to engage in the work, for there was no certainty that capital, with the untried obstacles in the way, could be enlisted. If enlisted at all, it could only be on conditions which would insure, in case of success, remuneration proportionate to the risk incurred.

The proffered aid was in lands and interest-bearing bonds of the United States. There is no controversy about the terms on which the lands were granted, and the only point with which we have to deal relates to the nature and extent of the obligation imposed by Congress on the company to pay these bonds. It is not doubted that the Government was to be re-imbursed both principal and interest, but the precise question for decision is, whether the company was required to pay the interest before the maturity of the principal.

The solution of this question depends upon the meaning of the fifth and sixth sections of the original act of 1862, and the fifth section of the amendatory act of 1864. (12 Stat. L:, 492; 13 Stat. L., 359.) The fifth section of the original act contains the undertaking of the Government, and the sixth defines the obligation of the company. By the fifth it is provided that, on the completion of the road in sections of forty miles, there shall be issued and delivered to the company a certain number of interest-bearing bonds of the United States, payable thirty years after date, with interest payable semi-annually. And “ to secure the repayment to the United States, as ‘hereafter provided,’ of the amount of said bonds, together with all interest thereon which shall have been paid by the United States,” it was further provided that the issue and delivery of the bonds should constitute a first mortgage on the property of the company, with a right reserved to the Government to declare a forfeiture and take possession of the road and telegraph-line in case “of the refusal or failure of the company to redeem said bonds, or any part of them, when requested to do so by the Secretary of the Treasury, in accordance with the provisions of the act.” The manifest purpose of this section is to take a lien on the property of the corporation for the ultimate redemption of the bonds, principal and interest, but the manner of redemption and time of it are left for further provision.

That the Government was expected in the first instance to pay the interest is clear enough, for the mortgage was taken to secure the repayment of the bonds, “together with all interest thereon which shall have been paid by the United States.’7 This phrase implies a prior payment by the United States, whatever may be the duty of the corporation in regard to reimbursement, as subsequently defined. Besides this, when repayment is spoken of, it is understood that something has been advanced which is to be paid back. Apart from this, had it been the intention that the corporation itself should pay the interest as it fell due, phraseology appropriate to such a purpose would have been used. But when and how the re-im-bursement was to be made was declared to be “as hereinafter provided,’7 that is, in conformity with the terms prescribed in another portion of the act. And that this is so is evident enough from the latter part of. the section, which directs the Secretary of the Treasury to enforce the forfeiture and take possession of the road on failure of the corporation to redeem said bonds, or any part of them, (referring to the different periods of their issue,) according to the plan of redemption thus provided, or,in other words, “in accordance with the provisions of this act.” The obligations imposed on the corporation, or assumed by them, in relation to the repayment of the bonds, are set forth entire in the next, or sixth, section, which, on account of its importance, is set forth at length :

“ Seo. 6. And be it further enacted, 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 ux>on 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 compensations for services rendered for the Government shall be applied to the payment off 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 5 per centum of the net earnings of said road shall also be annually applied to the payment thereof.”

Leaving out of consideration the parts of this section not pertinent to the present inquiry, there are three things, and three only, which the corporation is- required to do concerning the bonds in controversy. 1st. To pay said bonds at maturity. 2d. To allow the Government to retain the compensation due the corporation for services rendered, and apply the same to the payment of the bonds and interest until the whole amount is fully paid. 3d. To pay over to the Government, after the road shall have been fully completed, 5 per cent, of the net earniggs of the road, to be appropriated to the payment of the bonds and interest.

If we take the language used in its natural and obvious sense, there can be no difficulty in ariving at the meaning of the condition “ to pay said bonds at maturity,” which was imposed upon this corporation. As commonly understood, the word “ maturity,” in its application to bonds and other similar instruments, refers to the time fixed for their payment, which is the termination of the period they have to run. The bonds in question were bonds of the United States, promising to pay to the holder of them 81,000 thirty years after date, and the interest every six months. This obligation the Government was required to perform, and, as the bonds were issued and delivered to the corporation to be sold for the purpose of raising money to construct its road, it is insisted that Congress must have meant to impose a corresponding obligation on the corporation. In support of this construction it is sought to give to the word “ maturity” a double signification, applying it to each payment of interest as it falls due as well as to the principal. But this is extending the operation of words by a forced construction beyond their natural and ordinary meaning, which is contrary to all legal rules. Courts cannot supply .omissions in legislation, nor afford relief because they are supposed to exist. “ We are bound,” said Justice Buffer in an early case in the king's bench, “ to take the act of Parliament as they have made it; a casus omiss%is can in no case be supplied by a court of law, for that would be to make laws; nor can I conceive that it is our province to consider whether such a law that has been passed be tyrannical or hot.” (Jones v. Smart, 1 Term Reports, 44-52.)

Lord Chief Baron Eyre, in the case of Gibson v. Minet, (1 H. Bl., 5G9-614,) said: I venture to lay it down as a general rule respecting the interpretation of deeds, that all latitude of construction must submit to this restriction, namely, that the words may bear the sense which by construction is put upon them. If we step beyond this line we no longer construe men’s deeds, but make deeds for them.” This rule is as applicable to the language of a statute as to the language of a deed. The words “to pay said bonds at maturity ” do not bear the sense which is sought to be attributed to them. They imply, obviously, an obligation to pay both principal and interest when the time fixed for the payment of the principal has passed; but they do not imply an obligation to pay the interest as it accrues and the principal when due. It is one thing to be required to pay principal and interest when the bonds have reached maturity, and a wholly different thing to be required to pay the interest every six months and the principal at the end of thirty years. The obligations are so different, that they cannot both grow out of the direct words employed, and it is necessary to superadd other words in order to extend the condition so as to include the payment of semi-annual interest as it falls due. Neithef on principle nor authority is such a plain departure from the express letter of the statute warranted. And especially is this so when the construction leads to so great an extension of a condition to defeat a grant.

The failure to perform the condition is cause of forfeiture. If the natural meaning of the words be adopted as the true meaning, there can be no forfeiture until the bonds themselves have matured. On the contrary, if the construction contended for be allowed, the grants made to the corporation are subject to forfeiture on each occasion that six months’ interest falls due and is not met. It would require a pretty large inference to draw from the language used authority to enlarge in a particular so essential the terms of a condition assumed by the corporation when it assented to the act. Besides this, when Congress imposed this condition it well knew that the undertaking of the Government bound it to pay, to the holder of any bond, interest every six months and the principal at the time the bond matured. With this knowledge, dealing’ as it did with the relations the company were to bear to the Government on the receipt of these bonds, had it intended to exact of the company the payment of interest before the maturity of the bonds, it would have declared its purpose in language about which there could be no misunderstanding. But, if the words “ to pay said bonds at maturity ” do not give notice that this exaction was intended, neither do the other provisions of the sixth section. They created no obligation to keep down the interest, nor were they so intended. The proposition to retain the amount due the company for services rendered, and apply it toward the general indebtedness of the company to the Government, cannot be construed into a requirement that the company shall pay the interest from time to time and the principal when due. It was in the discretion of Congress to make this requirement, and then, as collateral to it, provide a special fund or funds out of which the principal obligation could be discharged. .This Congress did not choose to do, but rested satisfied with the entire property of the company as security for the ultimate payment of the principal and interest of the bonds delivered to it, and, in the mean time, with special provisions looking to the re-im-bursement of the Government for interest paid by it, and the application of the surplus, if any remained, to discharge the principal. The company, for obvious reasons, might be very willing to accept the bonds of the Government on these terms, and very unwilling to come under an absolute promise to pay the current interest as it accrued. If it were in a condition, either during the progress of the work or on its completion, to earn anything, there was no hardship in the proposed application of the compensation due it, but, it can be readily seen, if the company were required to raise money every six months to pay interest, when all its available means were necessary to the prosecution of the work, the burden might be very heavy. Congress did not see fit to impose this burden, and place the company in a position to risk the forfeiture of all its grants in case of failure to provide the means to pay current interest. Besides, it is fair to infer that Congress supposed that the services to be rendered by the road to the Government would equal the interest to be paid; and that this was not an unreasonable expectation, the published statistics of the vast cost of transporting military and naval stores and tbe mails to the Pacific coast, by the ancient methods, abundantly show.

The views presented regarding the provision that the Government shall retain the compensation for services rendered by the company, either before or after the road is completed, are equally applicable to the provision that after the road is completed, 5 per cent, of the net earnings of the road shall be annually applied to the payment of bonds and interest. It is not perceived how, on any principle of construction, an obligation of the corporation to pay the interest on the bonds every six months after they shall have been issued can be predicated •on the terms of this provision, any more than on the terms of the other. Both are reserved funds out of which the Government was to be re-imbursed in the first instance the interest it had paid, leaving the surplus, if any, to be applied to the payment of the principal of the bonds.

In addition to all that has been said, there is enough in the scheme of the act and the purposes contemplated by it to show that Congress never intended to impose on the corporation the obligation to pay current interest. The act was passed in the midst of war, as has been stated, when the means for national defense were deemed inadequate to the wants of the country, and the public mind was alive to the necessity of uniting by iron bands the destiny of the Pacific States with those of the Atlantic. Confessedly the undertaking was outside of the ability of private capital to accomplish, and only by the helping-hand of Congress could the problem, difficult of solution under the most favorable circumstances, be worked out. Local business, as a source of profit, could nof be expected while the road was in course of construction, on account of the character of the country it traversed, and whether, when completed, as an investment it would prove valuable, was a question for time to determine. But vast as the work was, limited as were the private resources to build it, the growing wants of the country, as well as the existing and future military necessities of the Government, demanded that it be completed. Under the stimulus of these considerations Congress acted. It did not act for the benefit of private persons, nor in their interest, but for an object deemed essential to the security of the country, as well as to the prosperity of the country.

Compelled as it was to incorporate a private company to ac-eomplish its object, it proffered tbe terms on which it would lend its aid, which, if deemed too liberal now, were then considered, with the lights before it, not more than sufficient to engage the attention of enterprising men, who, if not themselves capitalists, were in a position to command the use of capital. These terms looked to ultimate security rather than immediate re-imbursement, and for the obvious reason that the corporation would require all its available means in construction, and to exact from it, while the work was in progress, the obligation to keep down the interest on the bonds of the United States, would tend to cripple the enterprise at a time when the primary object with Congress was to advance it. There could, however, be no reasonable objection to the application “of all compensations for services rendered for the Government” from the outset, and “ 5 per cent, of the net earnings after the completion of the road ” to the payment of the bonds and interest, and these exactions were accordingly made.

Of necessity there were risks to be taken in aiding with money or bonds an enterprise unparalleled in the history of any free people, which, if completed at all, would require, as was supposed, twelve years in which to do it. But these risks were common to both parties, and Congress was obliged to assume its share and advance the bonds or abandon the enterprise, for obviously the grant of lands, however valuable after the road was built, could not be available as a resource with which to build it.

If the road were a success, in addition to the benefit it would be to the United States, the corporation would be in a situation to repay advances for interest, and pay the principal when due. If, on the contrary, the investment proved to be a failure, subjecting the private persons who embarked their capital in it to a total loss, there was left for the Government the entire property of the corporation, of which immediate possession could bo taken on a declaration of forfeiture.

In view of the circumstances under which the act of 1882 was passed, and the purposes to be accomplished by it, appearing as they do in the title as well as the body of the act, and constituting as they do the public history of this legislation, this brief summary presents, as we think, fairly its scope and effect, which are inconsistent with the position asserted by the appellant.

Notwithstanding the favorable terms proposed by Congress, the road languished, and the effect of this was the amendatory act of 1864. By this the grant of lands was doubled, a second in lieu of first mortgage accepted by the Government, and a provision inserted that u only one-half of the compensation for services rendered for the Government by said companies (meaning this and the auxiliary companies incorporated at the same time) shall be required to be applied to the payment of the bonds issued by the Government in aid of the construction of said road.”

This amendment was, without doubt, intended merely to modify the provision in the original act so as to allow the Government to retain only one-half of the compensation for services rendered, instead of all. Although the requirement in this provision is that the compensation shall be applied to u the payment of the bonds,” and in the former “ to pay the bonds and interest,” yet it cannot be supposed Congress intended to relinquish the right secured in the former act to make the application in the first place to the interest and then to the principal. The purpose of Congress could have been nothing more than to surrender on behalf of the Government the right to retain the whole of the companies’ earnings, and to accept in lieu of it the right to retain the half, leaving unaffected by this change any right touching this subject secured in the former act. The change was a very material one, and intended, doubtless, as a substantial-favor to the companies, but on the principle contended for it would prove, instead of this, to be of no value. Of what possible advantage could it be to these companies to receive apyment for one-half their earnings, if they were subject to to a suit to recover it back as soon as it was paid % And this is the effect of the provision on the theory that the companies are debtors to the Government on every semi-annual payment of interest. They could not, in the nature of things, have accepted the stipulation with an understanding that any such effect would be given it. If the Government consents to the diminution of its security, so that only half of the pr'ices due for services are to be applied to the payment of the interest or principal, what is to become of the other half? Surely there is no implication that the Government shall retain it, and, if not, who is to get it? Manifestly, the companies who have earned the money.

It is very clear that tbe Congress of 1864 did not supjmse, in making this concession, that it would be barren of results, but as the rights of the parties have been settled by the construction given to the original provision on this subject, it is unnecessary to pursue the subject further.

The practice of the Government for a series of years was in conformity with the views we have taken of the effect of the charter, until the Secretary of the Treasury arrested the payment of the money earned by the companies for services rendered the Government, and directed that it be withheld. This action of the Secretary brought the subject to the attention of Congress, and the Act 3d March, 1871, (16 Stat. L., p. 525, § 9,) was passed, directing that one-half of the money due the Pacific Railroad Companies for services rendered, either “heretofore or hereafter,” be paid them, leaving open the question of ultimate right for legal decision.

After this, another act was passed on this subject, by virtue of which this suit was instituted by the appellee in the Court of Claims, (Act 3d March, 1873, §2,17 Stat. L., p. 508.) It is contended that the purpose of this act is to repeal that portion of the charter of the Union Pacific Company containing the provision we have discussed. But, manifestly, the purpose was very different. It is true, the act directs the Secretary of the Treasury to withhold all payments to the Pacific Companies on account of freights and transportation, but at the same time it authorizes any company thus affected to bring suit in the Court of Claims for “ such freight and transportation,” and in such suit “the right of such company to recover the same upon the law and the facts shall be determined, and also the rights of the United States upon the merits of all the points presented by it in answer thereto by them.” This means nothing more nor less than the remission to the judicial tribunals of the country of the question whether this company, and others similarly situated, had the right to recover from the Government one-half of what it earned by transportation, which question was to be determined upon its merits.

The merits of such a question are determined when the effect of the charter is determined. It is hardly necessary to say that it would have been idle to authorize a suit to be brought, if it were the intention to repeal the provision on which the suit could alone be predicated.

We cannot go into an argument on the consequences which follow our decision. Consequences are not an element to be considered in the determination of the question whether an act of incorporation is less beneficial to the Government than it supposed. And whether an act of Congress be more or less politic and wise it is not our province to determine. When we-have declared the meaning of it, if there be power to pass it, our duty in connection with it is ended.

The judgment of the Court of Claims is affirmed.  