
    THE LAND-GRANT RAILROAD CASES.
    (Note reported in Court of Claims R.;
    93 U. S. R., p. 442.)
    The Lake Superior and Mississippi Railroad Company, appellants, v. The United States, appellees. The Atchison, Topeka and Santa Fé Railroad Company, appellants, v. The United States, appellees.
    
      On the claimants' Appeals.
    
    
      Since 1824 Congress have authorized land-grants for canals, turnpikes, andrailroads, with a reservation in the same terms, viz: “The said railroad shall he and remain a public highway for the use of the .Government, free from all toll or other charge for transportation of any property or troops of the United States.” The claimants transport, with their cars and employés, troops and supplies over these land-grant roads. The Secretary of War establishes a general rate of reduction from ordinary rates, to represent the Government’s right of ivay in the roads. The claimants assent to this, but Congress directs that no payments be made. The railroads bring their suits. The court beloio renders a decision pro forma for the purposes of an appeal in favor of the Government; the claimants appeal.
    
    
      I. The history of railroad legislation shows that the condition imposed on the land-grant roads by numerous statutes, providing in the same terms that “ the said railroad shall he and remain apuhlic highway for the use of the Government, free from all toll or other charge for transportation of any property or troops of the United Slates,” was not intended to extend beyond the free use of the road as a highway. The provision means that the Government may use the road; not that it may compel railroad companies to transport troops or property wholly without compensation for their services as carriers.
    II. The provision in the land-grant railroad acts, that “ the said railroad shall he and remain a public highway for the use of the Government,” extends to the free use of all fixtures and appurtenances forming part of the road, essential to its practical use, such as turn-tables, switches, depots, and other necessary appendages.
    III. Where land-grant railroads transport troops and army supplies without an express agreement fixing the compensation, the measure of damages will be compensation at ordinary rates, subject to a fair' deduction for the Government’s right to the free use of such roads.
    
      The Reporters’ statement of the case:
    The first of these cases went up on demurrer, the second on finding of fact; both, however, being decided in favor of the defendants, for the purpose of facilitating a review of the questions involved in the Supreme Court, and no opinion being delivered in the court below. As to the findings referred to, see the saíne case, (post,) where they are set forth.
    
      Mr. Walter JI. Smith for the Lake Superior and Mississippi Eailroad Company, appellaut:
    The cáse turns upon the construction that should be given to the clause in the act of 1864 which declares that “the said railroad shall be and remain a public highway for the use of the Government of the United States, free from all toll or other charge for [upon] the transportation of any property or troops of the United States.”
    What, then, is a “railroad,” and what is a “public highway,” and what is “ toll” ? There ought to be no difference of opinion on this subject.
    A railroad is defined by Webster to be “a road or way on which iron rails are laid for wheels to run on, for the conveyance of heavy loads in vehicles.”
    
      It is the road-bed, track, and fixtures that constitute the railroad, and not the locomotive, cars, and operatives of the road.
    Every section in this entire statute uses the word railroad in the sense of the road-bed and track, and not in the sense of road-bed, track, rolling-stock, and “other appurtenances,” necessary to run the road, and transport persons and property.
    The authorities justify us in claiming that the word toll, as used in this statute, should receive its common and ordinary signification. The additional words, “or other charge,” in our opinion, were not intended to enlarge the meaning of the proviso, but they were used for the purpose' of preventing the railroad from asserting any claim similar to toll, for the privilege of passage over the highway, and the clause should be construed as though it read “free from all toll or like charge,” upon the well-known maxim, noscitur a sociis.
    
    The acts in pari materia throw much light upon the construction that should be given the clause in question. That such acts may be looked to, and should be construed as one act, is abundantly settled. (Patterson v. Winn, 11 Wheat., 385; The Harriet, 1 Story, 251; Dubois v. McLean, 4 McLean, 489; The United States v. Collier, 3 Black. O. 0., 325; Blade v. Seott, 2 Brock., 325.)
    • As early as May 26,1824, Congress authorized the State of Indiana to connect the Wabash with the Miami of Lake Erie, and then for the first time introduced the provision relating to tolls.
    The next act upon this subject was passed March 2d, 1827. It contained the identical proviso found in the last-named act of 1824. (4 Stat. L., 234.)
    The next act was passed on the same day as the one last cited and contained the same proviso. (4 Stat. L., 236.)
    By the Act March 3,1827, Congress made a grant to the State of Ohio for the purpose of aiding the Columbus and Sandusky Turnpike Company in making a road from Columbus to Sandusky City, and provided “that no toll shall at any time be collected of any mail-stage nor of any troops or property of the United States.”
    All of these acts use the term toll in. a sense which cannot be misunderstood. They fix its meaning by a user, with the same signification, during a period of many years.
    This proviso, from the time of its first use in the statutes above quoted, until after the grant to the plaintiff of May 5, 1864, became the settled formula that was introduced into every statute making a land-grant in aid of the construction of a railroad, with the single exception of the Union Pacific Act, and in that the company was given a reasonable compensation for transporting troops and property, to be applied on the interest due the .Government. (12 *Stat. L., 493, sec. 6.)
    It was incorporated in the grant of September 20, 1850, to the’Illinois Central, Mobile and Chicago, and Mobile and Ohio roads. (9 Stat. L., 466.) And in the grant of May 15, 1856, to the State of Iowa, for the four great roads that run east and west across that State. (11 Stat. L., 9.) And in the grant of May 17,1856, to the States of Florida and Alabama. (11 Stat. L., 15, 17.) And in the grant of June 30,1S56, to the States of Wisconsin and Michigan. (11 Stat. L., 20, 21.) Aud in the grant of August 11, 1856, to the Yicksburgh and Meridian and the Gulf and Ship Island Companies. (11 Stat. L., 30.) And in the grant of March 3, 1857, to the Territory of Minnesota, for its roads. (11 Stat. L., 195.) And in the grant of March 3,1863, to the State of Kansas, for its road's. (12 Stat. L., 772.) And in the grant of May 5,1884, to the plaintiff, the Lake Superior and Mississippi Railroad. (13 Stat. L., 64.)
    The construction which we claim for this proviso is the one which has been adopted by all branches of the Government. On the 14th of February, 1865, Quartermaster-General Meigs wrote to Senator Sherman, then chairman of the Finance Committee of the Senate, to that effect.
    The law department of the Government has had this question before it, and resolved it in favor of the companies. The opinion was written by Assistant Attorney-General Hill, and concurred in by Solicitor-General Bristow and Attorney-General Williams. (14 Opinions, 592.)
    
      Mr. JE. B. Roar and Mr. Thomas Talbot for Atchison, Topeka and Santa Fó Railroad Company, appellant:
    How is the expression, “useof a railroad,” understood under the common law 1 The use of a railroad might be transferred by a common-law instrument, a lease, or, still better, by deed. That is, it would be most firmly aud completely carried by a deed of the railroad itself.
    
      What would such a deed be held to convey? Nothing but the road itself; the real estate, nothing more. Such deed would not even carry the rolling-stock. (See Bement v. Plattsburgh and Montreal Railroad, 47 Barb., 104; Beardsley v. OntarioBanlc, 31 Barb., 624.) . • .
    See, also, the view taken by this court in the case of the Minnesota Company v. Saint Louis Company, (2 W all., 609) There the contending mortgages, each, in terms, conveyed the rolling-stock; and the question now discussed could not arise. Both opinions, however, use expressions which imply that, aside from the connection created by the mortgage, the road and its rolling-stock are not connected. Mr. Justice Nelson (p. 644) speaksof the rolling-stock as made a fixture by the mortgage, “ so far as in its nature and use it can be called a fixture ;n and Mr. Justice Miller mentions “the road and rolling-stock” as though they were not one, but two. If the most effective conveyance of the use of a railroad known to the common law would not carry even the rolling-stock, unless this rolling-stock. were expressly mentioned therein as to be conveyed, it must be true, on still stronger grounds, that it would not carry anything more remote from the idea, the substance, of a mere road, than is such rolling-stock. More distant than such rolling-stock, certainly, are elements which the defense claims to be conveyed to them by force of the phrase “ use of a railroad.” Those are the constant furnishing of cars, of locomotive power, of service, and of direction essential to the operation of a road. These, instead of being carried by implication in a deed of a railroad, would scarcely be deemed proper subjects to be inserted in such an instrument. They would more fitly form parts of an agreement not sounding of the realty, a mere personal contract to furnish these elements of personal service. Thus, it clearly appears that the Government is, in this suit, demanding something which it would not have received, had the road upon its completion been transferred to it by absolute deed.
    But under this third section the Government is not entitled to an unrestricted use of this railroad. It is to use it as a public highway is used, not otherwise. Now it is clear that a public highway is not furnished, and is not expected to furnish, rolling-stock, locomotive power, or skilled operatives to aid the transportation along its line. It furnishes simply a roadway.
    If it be thus of the phrase “public highway,” how is it with theother adjunctive word,the word‘‘toll1?” 4 4 Toll” is not known as the price of transportation. Neither Bouvier nor Webster so understands its use, the latter of whom defines “ toll” as a tax paid, “particularly for traveling'"over a road, bridge, &c.” The earnings of transportation companies are in fares and freights, not tolls. In England, this word is found to have, as apparently it has not in this country, a meaning in connection with railroads. But this English meaning is not one which would suit the purpose of this defense. It is, on the other hand, one which supports the position of the appellant, namely, something paid by one railroad company for the liberty of passing its carriages .over the road of another company. ,(Simpson v. Denison, 13 Eng. Law and Equity, 359.)
    Thus, it appears that, as the common law knows these expressions, “ use of. a railroad,” “ public highway,” and 44 toll,”' neither has a meaning which will support the claim of the Government. Neither implies the duty of active transportation; each is satisfied with such use of a railroad as one railroad company may make of the road of another company, the mere license to pass with its own cars and engines over such road. The words 44 or other charge,” following the word 44 toll,” are to be understood in the sense of 44 other like charge; ” 'that is,, like to toll.
    This, upon the well-understood principle of noseitur a soeiis. (See Broome’s Legal Maximb, 523,. and these cases there cited:. Borradaile v. Hunter, 5 M. and Gr., 639,667 ; Hunt v. Robins, 2 G.. and D., 646 ; Hardy v. Singer, 5 Exch., 294, 298.)
    Let it be noticed that the statutes of the United States understand what constitutes a completed railroad as does the New York decision already cited. When Congress requires, as a condition to its grant of aid, that a railroad shall be equipped, it. specifies equipment; while it is otherwise in its grant of aid to the road of the appellant. Compare Act March 3, 1863, see. 4, (12 Stat. L., 772,) with Act July 1,1862, sec 3, (12 Stat. L., 492.)
    Here the point is pressed upon the attention of the court that the Government, in each of these statutes, required to be built, to bfe completed, precisely what they intended to use; and in one case they demanded a road completely equipped'; and in-the other case, that of this appellant, they demanded only a roadway.
    ■The expression 44 shall be and remain a- public highway ” is-quite ancient in the statutes of the United States. See statute of June 1,1790, where it is applied to navigable rivers. (1 Stat. L.,491.) May 6,1824, it is used with reference to a canal. (4Stat. L., 47.) In 1827, March 3, it is applied to a turnpike.- (4 Stat. L., 242.) June 30,1834, it is used in connection with'a military road. (4 Stat. L., 716.)
    August 8,1846, Congress used this expression twice, and in each case with reference to a river to be made navigable. (9 Stat. L., 78, 83.)
    In none of. these instances will it be contended that this phrase, in either of its slightly varying forms, imposes upon the grantee of lands conveyed by the respective statute any burden of active transportation. In each case the phrase would be amply satisfied by mere passive allowance, by the mere liberty of passing over the road, or river, as the case might be.
    From these last-cited statutes this phraseology passed into the statutes of the United States which make grants of lands to aid in the construction of railroads. (See grant in aid of Illinois Central 'Railroad Company, September 20, 1850, 9 Stat. L., 466.)
    To that time it had, in the laws of the United States, never been understood as imposing the duty of active transportation. Its full force had been contented with the mere liberty of passage. What now was the construction given to this phraseology in its new connection %
    
    Of course, as soon as any railroad, built with the aid of lands granted under this condition, was called upon to transport troops or property of the United States, there would arise occasion for the interpretation, first by the executive department, of this language. Such interpretation the case finds as early as August, 1861; it finds no other earlier. This, then, may be deemed to have been adopted from the outset. This was a construction which confined the exemption of the United States to a free use of the mere roadway; which required, on behalf of the Government, only a deduction of one-third of the usual price of transportation. It is a construction of earlier date than the statute which granted the lands now held by the appellant, and may fairly be held to be a part of the grant. (Peabody v. Static, 16 Wall., 240; Ciarle v. Peaslee, 1 Clifford, 545; Pacleard v. Hich-ardson, 17 Mass., 122; Rutland v. Mendon, 1 Pick., 158; Commonwealth v. Hartnett, 3 Gray, 450.)
    
      But, beside this construction by tbe executive department, there was construction also by tbe law-making power, before the date of tbe grant under which the appellant has taken lands. (See the “ Joint Resolution in relation to certain railroads in the State of Missouri,” of March 6, 1862,12 Stat. L., 614.)
    The language of the instrument which binds the petitioner, that is, of the third section of the act of March 3,1863, as under-^ stood at common law, does not support the logic of this defense! It upholds the claim of the petitioner. Only in this sense has it ever been used in the statutes of the United States. Congress so used it at the first. The executive department so interpreted and administered it. Congress subsequently sanctioned and confirmed this interpretation. This interpretation was fixed and established when the grant of the lands now held by the petitioner was made, and thus became a part of the grant. The subsequent legislation of Congress has reconfirmed this interpretation. As between the parties concerned, the rule contended for by the appellant is essentially fair and just. Its adoption leads to the accomplishment of the purposes which the Government sought to accomplish by the legislation in question, and is necessary thereto. It secures to the railroad companies nothing which circumstances do not make it just and equitable for them to demand.
    
      Mr. Solicitor- General Phillips for the United States, appellees:
    On behalf of the United States, it is submitted that by the provision of section '3 of the act of 1863, ch. 98, Congress has reserved to the United States freedom from charges of any sort on account of transportation, &e., by the plaintiffs over their road. The question is one of interpretation, viz, Did Congress mean by the word “railroads” railroads equipped, and by the words “toll or other charge upon the transportation,” &c., fare and freight?
    Railroad is a word of ambiguous signification. By a proper context it might be seen that the company itself was intended, or that only the track was intended $ but commonly, as is submitted, it means track and equipment.
    Bor instance, in the act of 1863, before the court, the words, “for the purpose of aiding in the construction of a railroad,” and “ the lands hereby granted shall be exclusively applied in tlie construction of said roads,” did not hinder such lands from, being applied to purchase equipments for the roads. It is also submitted that, in providing that the railroad should remain a highway, the act did not sever the track from the equipments, but intended that in the respect in which the road was to the public a means of transit for pay, in that it should be to the United States a means of free transit; that to the same extent that the public have a right to demand transportation from the company at a price, the United States have a right to demand it for nothing. Ordinary roads are highways for foot-passengers, horses, and carriages; a railroad can be a way at all only by being equipped, and therefore is then only a highway. It follows that the plaintiffs agreed that when equipped (no matter by whom) it should be a highway to the United States free, &c.
    The word toll in connection with railroads is also ambiguous, but is largely used in statutes and in opinious of courts (frequently in connection with charge or transportation) to include fare and freight. (Vermont Railroad Company v. Mtohburgh Railroad Company, 9 Gush., 369; State v. Northern Central Railroad Company, 18 Md., 193; Philadelphia Railroad Company v. Cata-icissa Railroad Company, 53 Pa., 20; Camden Railroad Company v. Briggs, 2 Zabriskie, 620; Beekman v. Saratoga Railroad Company, 3 Paige, 45; Raleigh Railroad Company v. Davis, 2 Dev. & Brt., 451; Blake v. Railroad Company, 19 Minn., 418;- Eursh v. Northern Central Railroad Company, 74 Pa., 181.) The court cannot be embarrassed by the ingenious construction placed upon .this provision by the War Department, under the pressure of hard cases, during the rebellion, especially since that construction has been questioned by Congress. (The United States v. Diekson, 15 Peters, 141; The United States v. Qillmore, 8 Wall., 330; Dollar Savings Bank v. The United States, 19 Wall., 227; Goldsboro’ v. The United States, Taney, 80.)
   Mr. Justice Bkadlet

delivered the opinion of the court:

Congress, in most of the legislative acts by which it has made donations of the public lauds to the States in which they lie for the purpose of aiding in the construction of railroads, has stipulated that the railroads so aided shall be public highways for the use of the Government free from all tolls or other charge for transportation of its property or troops. The ques-tioii has arisen between the railroad companies owning these roads and the officers of (lie Government whether this reservation includes the free use of the roads alone, or transportation also. The companies claim that if they give to the Government the free use of their roads it is all that is required of them. The Government claims that it is entitled to have free transportation on the roads, and that it is the duty of the companies to perform it-; and Congress has refused compensation for such transportation, giving the companies, however, the right to appeal to the Court of Claims. That court having been applied to, and having decided adversely to the companies, they have appealed to this court, and the cases are now before us for consideration.

The manner in which the question arises is stated with sufficient accuracy by the counsel of one of the appellant companies, as follows:

“ Was the plaintiff, by reason of being a laud-grant railroad, bound to transport the troops and property of the United States free of charge, or had it a right to a reasonable compensation for such services ? * • * * * *
“ The Act May 5, 1864, (13 Stat. L., 64,) made a grant.of land in the usual form to the State of Minnesota to aid in the construction of plaintiff’s road. That act contained the following provisions: ‘ And the said railroad shall be and remain a public highway for the use of the Government of the United States, free from all toll or other charge for [upon] transportation of any property or troops of the United States.’ (Sec. 5, p. 65.) The seventh section provides :
“‘That the United States mail shall be transported over said road under the direction of the Post-Office Department at such price as Congress may, by law, direct: Provided, That, until such price is fixed by law, the Postmaster-General shall have the power to determine the same.’
“ By the Act June 16,1874, (18 Stat. L., 74,) making appropriations for the Army for the fiscal year ending June 30, 1875, it was provided, ‘ that no part of the money appropriated by this act shall be paid to any railroad company for the transportation of any property or troops of the United States over any railroad which, in whole or in part, was constructed by the aid of a grant of public land, on the condition that such railroad should be a public highway for the use of the Government of the United States, free from, toll or other charge, or upon any other conditions for the use of such road for such transportation ; nor shall any allowance be made out of any money appropriated by this act for the transportation of officers of the Army over any such road when on duty and under orders as a military officer of'the United States. But nothing herein contained shall be construed as preventing any such railroad- from bringing a suit in the Court of Claims for the charges for such transportation, and recovering the same, if found entitled thereto by virtue of the laws in force prior to the passage of this act.'
“ The case turns upon the construction that should be given to the clause in the act of 1884, which declares that the said railroad shall be and remain a public highway for the use of the Government of the United States, free from all toll or other charge for [upon] the transportation of any property or troops of the United States.’ ”

And the counsel for the appellants analyzes this provision as follows:

“This is a legislative declaration of three things : 1. That the railroad shall be a public highway. 2. That the United States shall have the right to use the same for the transportation of its troops and property. 3. That the United States, in the transportation of its troops and property over such railroad as a public highway, shall not be required to pay toll or other charge.”

It is somewhat singular that a provision apparently so simple in its terms should give rise to such a wide difference of opinion as to its true construction. The difficulty arises from the peculiar character of a railway as a means of public travél and transportation. The case of a. turnpike or a canal would have furnished no difficulty whatever. Those thoroughfares are usually constructed and owned by companies who have nothing tcf do with transportation thereon. They merely furnish the thoroughfare. Had the provision in question related to public works of this kind, it would have been clear that the right reserved to the Government would have been merely the right to use the works themselves (the turnpike or the canal) free from toll. The words “ free from all toll or other charge for the transportation of property or troops,” would have referred, by necessary implication, to transportation performed by the Government itself, either in its own carriages or vessels, or in carriages or vessels procured and employed afc its expense. Mo one would imagine for a moment that the turnpike or canal company would be bound to furnish the means of transportation, much less the propelling power and labor for performing it.

Indeed, Congress has, in several instances, commencing as far back as 1824, made donations of right of way, or grants of land, for canals’and turnpikes, and has made almost the exact reservation contained in the railroad grants. The first was that made May 26, 1824, authorizing the State of Indiana to connect the Wabash River with the Miami of Lake Brie, and the reservation was in these words: “And provided further, That the said canal when completed shall be and forever remain a public highway for the use of the Government of the United States, free from any toll or charge whatever for any property of the United States, or persons in their service in public business, passing through the same.” (4 Stat. L., 47.)

On the 2d of March, 1827, an act, with precisely the same reservation, was passed making a grant of laud to the State of Illinois to aid in opening a canal to unite the waters of the Illinois River with those of Lake Michigan. (4 Stat. L., 234.) On the 2d of March, 1833, an amendment to this act was passed, which declared “ that the lands granted to the State of Illinois, by the act to which this is an amendment, may be used and disposed of by said State for the purpose of making a railroad instead of a canal as in said act contemplated; * * * Provided, That if a railroad is made in place of a canal, the State of Illinois shall be subject to the same duties and obligations, and the Government of the United States shall be entitled to and have the same privileges on said railroad which they would have had through the canal if it had been opened.” Evidently the only thing reserved in this case was the use of the road.

It will be observed that the last-cited act was passed in 1833, when railroads were about 'being introduced as a means of public communication in this country. It is undoubtedly familiar to most of those whose recollection goes back to that period that railroads were generally expected to be public highways on which every mam who could procure the proper carriages and apparatus would have the right to travel. This was the understanding in England, where they originated. The railway clauses consolidation act, passed in 1842, provided in detail for the use of railways by all persons who might choose to put carriages thereon, upon payment of the tolls demandable, subject to the provisions of the statute and the regulations of the company. (Acts 5 and 6 Tie., c. 55.) And suits were sustained to compel railway companies to keep up their roads for the use of the public. (King v. Severn Railroad Company, 2 B. & A., 646; Queen v. Grand Junction, 4 Q. B., 18; 2 Redfield, § 249; Pierce’s American Railway Law, 519.) Most of the early railroad charters granted in this country were framed upon the same idea. Thus the charter of the Mohawk and Hudson Railroad Company, granted by the legislature of New York in 1826, (which was one of the earliest,) after giving the company power to construct the road, provided as follows: “And shall have power to regulate the .time and manner in which goods and passengers shall be transported, taken, and carried on the-same, as well as the manner in which they shall collect tolls and dues on account of transportation and carriage, and shall have power to erect and maintain toll-houses and other buildings for the accommodation of their concerns.” (Laws of 1826, 289.) In subsequent charters, granted in 1828, and succeeding years, the intent is still more plainly expressed. Thus, in the charter of the Ithaca and Owego Railroad Company it is provided, (sec. 9:) “ The said corporation shall have power to determine the width and dimensions of the said railroad; to regulate the time and manner in which goods and passengers shall be transported thereon; and the manner of collecting tolls for such transportation; and to erect and maintain toll-houses,” &c. (Sec. 11:) “The said corporation may demand and receive from all persons using or traveling upon said rail the following tolls, to wit: for every ton weight of goods, &c., three cents per mile for every mile the same shall pass upon the said road, and a ratable proportion for any greater or less quantity; for every pleasure-carriage, or carriage used for the conveyance of passengers, three cents per mile in addition to the toll by weight upon the loading.” (Sec. 12:) “All persons paying the toll aforesaid may, with suitable and proper carriages, use and travel upon the said railroad, subject to such rules and regulations as the said corporation are authorized to make by the ninth section of this act.” (Laws of 182S, 17.) Substantially the same provisions were contained in other charters granted in 1828 and 1829. (Laws of 1827, 197, 228, 307, 396, 403, 474; Laws of 1829, 252.) In 1830 and subsequent years an abbreviated formula was employed, but still apparently recognizing the possible use of the roads by the public; giving, among other things, express power to regulate the time and manner in which goods and passengers should be transported thereon, and power to erect toll-houses, &c. So in the early charters granted by the legislature of Massachusetts it was usual, after granting a toll upon all passengers and property conveyed or transported upon the road, to provide that the transportation of persons and property, the construction of wheels, the form of cars and carriages, the weight of loads, &c., should be in conformity to such rules, regulations, and provisions as the directors should prescribe, and that the road might be used by any persons who should comply with such rules and regulations. This formula was continued down to 1835. (See Railroad Laws and Charters, vol. 2, 41, 60, 67, 77, 95, 103, 117, 124, 132, 141, 166, 195, 215.) Like provisions were inserted in various charters granted by the legislature of, Maine, some as late as the year 1837; and in 1842 a general law was passed requiring every railroad company whose road should be connected with that of another company to draw over their road the cars of such other company; and, on refusal so to do, the latter company was authorized to run its cars with its own locomotives over such road, being subject to the general regulations thereof. (See 1 Railroad Laws and Charters, 8, 22, 60, 63, 77, 310.) 'Similar provisions as to the use of railroads by the public are contained in several early charters granted by the legislature of New Hampshire, coming down to a period as late as 1844. (1 Railroad Laws and Charters, 325, 335, 343, 364, 378, 411.) In that year a statute was passed entitled “An act to render railroad corporations public in certain cases,” &c., by one section of which it was provided that said corporations, whenever thereto required by the legislature, should permit all persons to run locomotives and cars on their road. {Id., 648.)

In New Jersey, not only did the railroad charters contain provisions similar to those above quoted with regard to the authority of the directors to regulate the construction of carriages to be used on their roads, the weight of loads to be carried, the times of starting, and the rate of speed, but expressly declared that such roads should be public highways. (See charter of Camden and Amboy Railroad Company, February 4,1830.) The charter of the New Jersey Railroad, passed in 1832, distinguished between tolls for transportation in the cars of the company and those of other persons; and provided that no farmer should be required to pay any toll for the transportation of the produce of his farm to market in his own carriage weighing not more than oue ton when the load did not exceed one thousand pounds.

The charter of the Philadelphia and Trenton Railroad Company, granted by the legislature of Pennsylvania in 1832, expressly made the road a public highway, and contained various provisions adapted to a road of that character; and no doubt similar provisions were contained in other charters granted in that State.

In the case of Boyle v. The Philadelphia and Reading Railroad Company, (54 Pa. R., 301,) decided in 1887, the supreme court of Pennsylvania held that the charter of the latter company made the road a public highway, on which all persons might place vehicles of transportation on conforming to the regulations of the company; and that, in limiting the amount of “tolls" then demandable for transportation on the road, the legislature had reference to "tolls" charged to other parties using the road, and not to the freights or charges for transportation which the company itself was authorized to demand when performing transportation.

In Missouri, as late as the year 1847, the legislature, when incorporating the Hannibal and Saint Joseph Railroad Company, subjected it to the same restrictions and gave to it the same privileges before imposed and conferred on the Louisiana and Columbia Railroad Company, created in 1837; among which was the following, namely that the company should have power to prescribe the kind of carriage to be used on its road, by whom, whether it be propelled by steam or other power, all cars being subject to the discretion of the company, and no person to put any carriage on the road without its permission ; and the company was authorized to charge tolls and freight for the transportation of persons, commodities, or carriages on the road ; and it was declared that the State and the United States should have the right, in time of war, to use said road in transportation of troops or munitions of war in preference to all other persons. (Missouri Railroad Laws, pp. 8-13.) In reference to this railroad, (among others,) Congress in 1852 made a grant of land to the State of Missouri with the same reservation now under consideration, that the said railroads shall be and remain public highways for the use of the Government of the United States,” &c. (10 Stat. L., 9.) Read in connection with the charter of the railroad, which the rule relating to laws in pari materia requires, it is certain that in this case, at least, the reservation has relation to the use of the railroad alone, and not to the transportation service of the company.

On the other hand, in Maryland, from the first railroad charter granted in 1826, namely, that of the Baltimore and Ohio Railroad Company, the legislature has prohibited the use of railroads by any other company or person than the companies owning the same, except with their consent. But even this legislation is a recognition of the distinction between the railroad, considered as a structure adapted to ge'neral use, and its actual use by placing vehicles and conducting transportation thereon. (See Laws of Maryland, 1826, c. 123, sec. 18, and charters in subsequent years in the Session Laws.)

It is undoubtedly true that, in practice, railroads as a general thing are only operated by the companies that own them, or by those with whom they have permanent arrangements for the purpose. These companies have a practical if not a legal fho-nopoly of their use. The great expense of constructing and managing cars and motive power fit to be used on railroads as they have actually developed, the difficulty of strict compliance with the regulations adopted, and the diversified ways in which the companies could make the transportation business uncomfortable to those who might attempt to carry it on, are a most effectual security against any interference with their business as carried on by themselves. And in some of the States where railroads were originally declared public highways the right of the public to use them has been expressly abrogated — as in Massachusetts, for example, by the act of 1815. — (See Railroad Laws and Ch., 648.)

But the ascertained impracticability of the general and indiscriminate public use of these great thoroughfares does not preclude their use by transportation companies having no interest in the roads themselves. Such companies, in fact, are actually engaged in conducting a vast carrying business on the principal lines of railroad throughout the country. Ror does it preclude the idea that it may be of great importance to the Government, in conducting its various operations in peace and in war, to have the free use of railroads as thoroughfares whenever it chooses to assume the couduct and management of its own transportation thereon.

Be this, however, as it may, the general course of legislation referred to sufficiently demonstrates thefact thatin the early history of railroads it was quite generally supposed that they could be public highways iu fact as well as in name. This view pervaded the language of most charters granted at the period, many of whichstill remain in force, and the railroads constructed under them are, theoretically at least, public highways to this day. This fact affords the only explanation of much, of the language used, not only in those early charters, but in many of those which have been granted since, the latter adopting, as was natural, the forms of phraseology found prepared to hand. The language referred to is only consistent with the idea that railroads were to be regarded and used as public highways. The forms of legislative expression thus adopted, and coming-down from a period when they had greater practical significance than they now have, bring with them an established sense which renders them free from all uncertainty and doubt. We know, as well as we know the sense of any phrase in the English language which has a historical meaning and application, what is meant when a railroad is spoken of in law as a “ public highway.” We know that it refers to the immovable structure stretching across the country, graded and railed for the use of the locomotive and its train of cars.

But it is not alone in charters which contemplate the creation of railroads as public highways that we find evidence of the understood distinction between railroads as mere thoroughfares, and the operations to be carried on upon them by means of locomotives and cars. This is manifest from the fact, among other things, that express power is invariably given (if intended to be conferred) to the railroad company to equip its road, and to transport goods and passengers thereon and charge compensation therefor. This practice, evidently springs from the conviction that a railroad company is not necessarily a transportation company, and that, to make it such, express authority must be given for that purpose, in compliance with the rule that no power is conferred upon a corporation which is not given expressly or by clear implication.

In view of the legislative history and* practico referred to, it seems impossible to resist the conclusion, when we meet with a legislative declaration to the effect that a particular railroad shall be a public highway, that the meaning is, that it shall be open to the use.of the public with their own vehicles; and that when Congress, in granting lands in aid of such a road, declared that the same shall be and remain a public highway for the use of the Co ver ament of the United States, it only means that the Government shall have the right to use the road, but not that it shall have the right to require its transportation to be performed by the railroad company. And when this right of the use of the road is granted, “ free from all toll or other charge for transportation of any property or troops of the United States,” it only means that the Government shall not be subject to any toll for such use of the road. This, we think, is the natural and most obvious meaning of the language used, when viewed in the light afforded by the history of railroad legislation in this country. ' *

This was also the interpretation put by the executive department of the Government upon the reservation in question prior to the passage of the acts of 1864. At the breaking out of the late 'civil war, it became a matter of great practical importance to the railroad companies which had received grants of land subject to this restriction, whether they were or were not to receive any compensation for transporting Government property and troops in their cars. It was held that they were, and that a reasonable abatement should be made for the free use of the road to which the Government was entitled. The views of the War Department wore set forth in a communication from Mr. Cameron, Secretary of War, to the president of the Illinois Central Railroad Company, dated August 15,1861, in which he says : “•It has been decided by this Department that the clause in your charter (9 Stat. L., 467, sec. 4) gives a clear right to the Government of the United States to the úse of your roadway, without compensation, for the transportation of its troops and its property. As a proper compensation for motive-power, cars, and all other facilities incident to transportation, two cents per mile will be allowed for passenger-travel, subject to a discount of 33£ per cent, as due to Government for charter privileges. Payment for transportation of freights, stores, munitions of war, and other public property, will be made at such reasonable rates as may be allowed railroad companies, subject, however, to the abatement of 33¿- per cent., as before specified.” A movement to compel the same company to transport property for the Government free of charge was made in 1865, but was reported against adversely by learned committees, after receiving from the War Department a full explanation of the reasons upon which its action had been based. (See letter of Quartermaster-General Meigs to Senator Sherman, dated February 14, 1865, and the action of the Senate and House of Representatives, second session Thirty-eighth Congress, Congressional Globe, vol. 68, 890-902,1045,1387-1389.) The same views were fully expressed by the Attorney-General when applied to for his opinion in 1872. (14 Opinions, 591.) In accordance with these views settlements were made with the different companies concerned down to the passage of the act of 1874 suspending payment, as before stated.

It is not without significance, in this connection, that in other grants, when Congress intended to provide for transportation being performed by the railroad company, explicit and proper language is used for that purpose. As in the case of the Union Pacific Railroad Company, chartered by Congress July 1,1862, where it is enacted that the company shall transmit dispatches over its telegraph lines, transport mails, troops and munitions of war, supplies and public stores, upon its 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 amount paid.by private parties for the same kind of service. (12 Stat. L., 493.) In this case compensation was provided for. In other cases the transportation was to be furnished without charge. After the discussion in 1865, before referred to, Congress made several grants of land with the express reservation that the Government property should be transported over the roads concerned at the cost, charge, and expense of the company owning and operating the same, when required by the United States so todo; using language entirely different from that under consideration in the cases now before the court. (See acts of 1866, 14 Stat., 95,237, 241, 290, 338, 549.)

But suppose, in the cases under consideration, the States of Kansas and Minnesota, to which the land grants were directly made, had themselves severally chosen to construct the railroads in question, to be operated and used by any individuals or trans-porfcation corporations who might see fit to place rolling-stock thereon upon payment of the proper tolls, would the Government have had any further right than that of using the road with its own carriages free of toll? It certainly could not have the right to use the carriage of third persons placed on the road. Eor, from anything conlamed in the act of Congress, could it require that the State should procure and place rolling-stock on the road. All that the act reserves is the free use of the railroad. Of course-this implies, also, the free use of all fixtures and appurtenances forming part of the road, and which are essential to its practical use, such as turn-tables, switches, depots, and other necessary appendages. Lord Chancellor Cottenliam, in the case of Cother v. The Midland Railway Company, (2 Phillips, 473,) said: “The term ‘railway’ by itself includes all works authorized to be constructed; and for the purpose of constructing the railway the company are authorized to construct such stations and other works as they may think proper.” (1 Redfield on Railways, § 105.) The “ works”referred to by the lord chancellor were those permanent and immovable appendages which constitute parts of the completed structure.

' We are of opinion that the reservation in question secures to the Government only a free use of the railroads concerned, and that it does not entitle the Government to have troops or property transported by the companies over their respective roads free of charge for transporting the same.

In coming to this conclusion we do not place any great stress upon the use of the word “toll,” as being á word peculiarly applicable to charges for the use of a highway, as contradistin-guished from the charge for transportation, which is more properly denominated “freight.” For, whilst this is undoubtedly true, it must be conceded that, in the actual language of railroad legislation, the word “toll” is very often used to express the charge for transportation also. Our opinion is based rather upon that marked distinction which the mind naturally makes, and which is so generally made in railroad legislation, between the road as a thoroughfare and the transaction of the carrier business thereon, whether by the railroad company itself or by other persons, and the manifest intent of Congress, in the legislation under review, to reserve only the free use of the road and not the active service of the company in transportation.

The objection that it would be inconvenient for Government to provide locomotives and cars for the performance of its transportation cannot be properly urged. • The Government can do what it always has done without experiencing any difficulty, employ the services of the railroad and transportation companies which have provided these accommodations. It might be very convenient for the Government to have more rights than it has stipulated for; but we are on a question of construction, and on this question the mus loquendi is a far more valuable aid than the inquiry what might be desirable.

Equally untenable is.the idea that, because railways are not ordinarily used as public highways, therefore the appellation of “public highways” when given to them must mean something different from what it has ever meant before, and must einbrace the rolling-stock with which they are operated and used. Such a method of interpretation would set us all at sea, and would invest the courts with the power of making contracts, instead of the parties to them. It is contended by the Government that though it be not entitled to the active services of the company, but only to the use of the “railroad,” that, at least, this term (railroad) must be regarded as including the equipment of the road as a part thereof, and that the Government should be adjudged to have the free use of the locomotives and cars of the company, as well as the track. But, as suggested, we cannot see any good reason for this position. Eo doubt the word, as used in certain connections and in particular charters and in - struments, may properly have a wider latitude of signification, so as to include the- equipment and rolling-stock as accessory to the track, constituting together one incorporated mass or corpus of property as the subject-matter of the particular enactment or disposition. It is not our purpose to question the propriety of this view in the cases and for the purposes to which it may be applicable. But where, as in the laws under réview, the railroad is referred to throughout, in its character as a road, as a permanent structure, and designated and required to be a “jpublic highway,” it cannot, without doing violence to language, and disregarding the long-established usage of legislative expression, as shown in the previous part of this opinion, be extended to embrace the rolling-stock or other personal property of the railroad company.

The decrees of the Court of Claims in the several cases must be reversed, and a new decree made in favor of the respective petitioners, in conformity with the principles of this opinion, that is to say, awarding to each of them compensation for all transportation performed by them, respectively, of troops and property of the Government, (excepting the mails,) subject to a fair deduction for the use of their respective railroads.

Mr. Justice Miller

dissenting :

I propose, in behalf of Justices Clifford, Swayne, Davis, and myself, to state briefly the reasons why we cannot concur in the judgment of the court in these cases.

The grants of lands to these railroads are of great value, and were made before a single ollar was expended in their construction, and were so necessary to the success of these enterprises that it may be safely assumed that the roads would not have been built without them.

The only compensation, which can properly be so called, to the United States is found in the following proviso to the third section of the grant to the Atchison, Topeka and Santa Fé Railroad Company: “The said railroad and branches shall be and remain public highways for the use of the Government of the United States, free from all toll or other charge upon the transportation of any property or troops of the United States.” (12 Stat. L., 773.) This act was passed in 1863, and a grant to the other company, passed in 1864, contained a proviso in the same words, with the substitution of the word “ for” in place of the word “upon” preceding the word “transportation.”

The only question in these cases is, what right or privilege did Congress in tend to secure to the Government by this proviso?

Notwithstanding the argument built upon the assertion that railroads in England were first used as other roads, by the persons who used them furnishing their own vehicles of transportation, and, perhaps, motive-power, and that there may possibly exist at this day one or two short railroad-tracks connecting coal mines with other railroids on which each mining company furnishes its own cars and locomotives, I venture the assertion that there does not now exist in the United States, and has not ever existed, any railroad-track over which the general public actually ran, each man for himself, his own cars, propelled by his own locomotives, and managed and controlled by his own conductors, engineers, brakesmen, &e. In short, I deny that at the date of these grants there was iu existence any practicable system anywhere in the United States by which the Government or any one else could use the track of a railroad without using its usual and necessary appurtenances, namely, its cars, locomotives, depots, agents, officers, and servants. I will not discuss the proposition, because its truth or falsehood is open to the observation and experience of all men who know anything of the present railroad system of the world.

It follows that if the United States secured anything by the proviso, the use of the road by the Government, for which no toll or other charge was to be made, must be the only use which is at all practicable, and the same use which is made of it by all others who have occasion to employ it.

Uothing is gained in the argument by the criticism on the phrase “ public highway for the use of the Government.” Railroads, such as we have described them, and limited in the manner of their use to their own rolling-stock, managed by their own officers, are, if not technically so, really public ways. They exist nowhere except by statutory authority of the Government. They would not be tolerated for a moment in any State of the Union unless they were free in some mode of use to all the public. They no more dare refuse to transport persons and property of the general public over the whole or any part of their road than a ferryman would refuse to. do the same thing over his ferry.

They have received grants, corporate subscriptions, and municipal gifts on the ground that they are for the public use, which could be valid on no other ground. (Loan Association v. Topeka, 20 Wall., 661.) And they are subject to such legislative regulations as are ferries, bridges, turnpikes, and other public means of conveyance and transportation, where they have secured no restriction on this legislative power either by contract or by constitutional provision.

The words “ public highways for the use of the Government ” only express that the roads are to be open to the use of the Government as to others, and are introductory to the modification of the terms on which this use is by the contract conceded to the United States, namely, that it is to be “ free of toll or other charge upon the transportation of any property or troops of the United States.”

Much stress in the argument of counsel is laid upon the word toll, which it is .said is inapplicable iu any other sense than a charge for the use of the road-bed. If we should concede this it would advance the argument but little, for the use of the road is to be free -from toll or other charge on transportation. Row, what is suit brought for in these cases but for a charge for transportation — a charge upon transportation by these companies ? If it is not a toll it is another charge for transportation. If it is a toll it is equally to be free.

But the word “ toll ” has never been restricted to the limited sense here contended for.

In 6 Comyn’s Digest, 349, article Toll,' a "toll thorough,” which is the class of tolls relating to ways, is said to be “ a sum demanded for a passage through a highway or for a passage over a ferry.” In the case of the ferry it surely will not be said that the toll is for the use of the river, nor will it be denied that it is for transportation over the river by means of the ferryman’s boat, his labor, aud, if it be in a steamboat, it is the very class of means used by a railroad company. A "toll thorough,” then, as understood at the common law, did include compensation for something more than the use of a road-bed or a waterway, and did include, when applied to a proper ease, compensation for the means of locomotion and transportation used by the party who claimed the right of toll.

So, also, “ toll ” is the word used to express the compensation allowed by law or custom to a miller for grinding grain. (2 Bouvier’s Law Dictionary, 598.) Row, the motive power of ancient mills in England was principally the water of rivers or other large streams, and the owner*of the grain did nothing but to bring his grist to the mill and carry it away. It is true that in this country there is and has been a class Of mills run by horse-power, where the owner of the grain furnished the horses aud the other party the mill, and in these also the compensation is called by both statutes and custom toll. These instances are sufficient to show that neither by the_common law of England, by its statutes, nor by customary usage there or in the United States, is the word toll limited to compensation for the use of a road, a way, a mill, or a ferry, where the moving power comes from the party using it, but on the contrary that it is and always lias been applied to compensation for such use when the thing used and the motive power by which it was used came from the party charging the toll as well as when it came from the party paying it.

It is, therefore, a word properly used to express the charges made by railroad companies for transportation of persons and property in the manner which is now usual, and, I may add, universal.

We are seeking to ascertain the meaning which the Congress of the United States attached to a certain form of words, and if that body had, before the use of the words in the two statutes which we are construing, made any public and official declaration of the sense in, which they used them, both the grantees in these later statutes and this court must be bound by that declaration.

The form of proviso under consideration had been adopted in many previous grants of land for railroad and other purposes; among others, in 1882, to the State of Missouri, for the Hannibal and Saint Joseph and the Pacific Railroads.

Upon the outbreak of the rebellion these roads suffered very much from the intestine war of the State, and were called upon almost beyond the extent of their ability for transportation of troops, food, and munitions of war for the Government of the United States. It was fouud that if they were to do all this without compensation they would soon be bankrupt, and had better abandon their property to the Government.

In view of this great hardship, unanticipated by any one at the date of their grants, Congress made provision by the- Joint Resolution March 6, 1862, (12 Stat. L., 614,) for an equitable arrangement by which the companies could discharge some portion of their obligation and yet receive from the Government such compensation, during the existence of the war, and in view of the public exigency, as might be just and reasonable. But the preamble declared that, in doing this, they did not waive the right of the United States to have their property and troops transported free from toll or other charges of said railroad, as contemplated by the provisions of the grant already referred to.

Here was, in 1862, the year before the first of the grants under consideration was made, and two years before the other, a declaration by Congress, placed on the statute-book, that they understood and claimed that this form of words gave them the right to have all their troops and property transported by these companies free of charge, and that as full performance was, in. the condition of things at that time, impossible, they waived the exercise of that right as long as the war lasted, and would make a provisional arrangement for that time to enable the companies to get along.

Were not the parties who received and acted upon grants made the next year bound to know and understand the sense in which Congress used this, form of words ? Can they now be heard to say that another and far different meaning was attached to them by Congress from that which the same body asserted for them a year before ? If they did not wish to accept the grants under that construction they need not do it. Bat if they did accept them, and have sold the land, they are bound by the public statutory construction previously given by Congress of the meaning which they attached to the words used in the grants. For these reasons we are of opinion that the judgment of the Court of Claims ought to be affirmed.

Clípeord, Swayne, and Batís, J. J., concurred in this opinion. 
      
       See Atchison, Topeka and Santa Fé Railroad Case, (post;) as to the “ fair deduction for the use” of the roads, and the basis for computing it.
     