franchises purchased by the State shall be restored to any such company until it shall have first paid, in money or in Missouri State bonds, or in bonds guaranteed by this State, all interest due from said company, and all interest thereafter accruing shall be paid semi-annually in advance; and no sale or other disposition of any such railroad or other property or their franchises shall be made without reserving a lien upon all the property and franchises thus sold or disposed of, for all sums remaining unpaid; and all payments therefor shall be made in money or in the bonds or other obligations of this State." mission in any shape of the specific lien which | in default; but no railroad or other property or the State had on the roads for the repayment of the bonds she had advanced or loaned to the companies. To make this more emphatic all power whatever on this subject was taken away. No pressing exigency, no motive, however pure or generous, and no consideration even of pecuniary wisdom in which the Legislature might indulge, or believe, was to justify this discharge of the lien which the State held as security for her advances. How can it be maintained in the face of this; that while the Legislature could not release from motives of grace, and for the purpose of a gratuity, it could release on a purpose of compromise by accepting one third or one half of the debt secured by the lien? If one third could be accepted, then one tenth. If five millions could be accepted when ten were due, then five dollars could be accepted. It is to be borne in mind that we are considering the constitutional power of the Lgislature to release the lien, and on this question we are not at liberty to consider whether it acted wisely or reasonably. If they could release at all, or for any considera tion, the court cannot say they have exceeded their power. But the Constitution seems to place all this beyond question by saying: it shall not have any power whatever to do this thing. The work of the Convention was, however, to be submitted to a vote of the people. If it received a majority of the votes cast, it became the fundamental law of the land. Otherwise it passed for nothing. Other propositions were submitted separately, and might be adopted or rejected without hazarding the whole instrument. But so important did the Convention deem this provision that they put it into the body of the new Constitution, so that the latter could not be adopted without including the for mer. If, however, the question of releasing the road from its debt to the State was thus settled in the negative, there still remained the question of the present enforcement of the lien by sale or otherwise. This question was left by the Convention to a vote of the people in a separate ordinance, which might be adopted or rejected without defeating the Constitution itself, but which, if adopted, became part of the Constitution. Both the Constitution and this ordinance were submitted at the same time, and both were adopted and became part of the fundamental law of the land at the same time. This ordinance throws a flood of light on the intention of the men who framed the Constitution in adopting the section we have just discussed. It imposed a tax of ten per cent. on the gross receipts of the three principal roads from October, 1864, to October, 1868, and fifteen per cent. thereafter; to be devoted to the payment of the principal and interest of the bonds loaned by the State; and it required that if either of said companies neglected or refused to pay said tax, the General Assembly should provide by law for the sale of that road. The 5th section of this ordinance is as follows: "Whenever the State shall become the purchaser of any railroad or other property, or the franchises sold, as herein before provided for, the General Assembly shall provide by law in what manner the same shall be sold for the pay. ment of the indebtedness of the railroad company The manner in which this ordinance was put to the people is significant. The ballot was to be, "Shall the railroads pay their bonds? Yes." "Shall the railroads pay their bonds? No." The former was a vote for adopting the ordinance; the latter was a vote against it. It is thus seen that if this ordinance was adopted, both the Convention and the people were in earnest in their determination not to release any claim the State had in those companies. The peculiar provision of the above section makes this very clear. If the State became the purchaser, the Legislature should provide for the manner of its resale; but in no event was it to be restored by resale or otherwise to the company who had owned it until that company had first paid in money, or bonds of the State of Missouri, all the accrued interest due from said company; and all interest thereafter to accrue was to be paid in advance semi-annually. It was also provided that no sale or other disposition of such railroad should be made without reserving a lien upon all the property and franchises thus sold or disposed of for all sums remaining unpaid. The sale or disposition here spoken of had reference to a sale to other parties than to the defaulting company. And even in that case the ordinance provided that none should be made which did not secure the State for all her liabilities on account of the road. The clause can have no other meaning but this, though it is ably argued that it means such part of the consideration of the new sale as may be on credit. But, taking the constitutional provision, the prohibition in the ordinance against a restoration of the roads without payment of what is due, and security for what is to become due, it seems to me hardly to admit of a doubt that, in no event, was the road to pass from the control of the State without security against any loss by reason of these bonds. But however this may be, the constitutional prohibition against releasing the lien; the provisions of the ordinance for the levy of a severe tax on the gross receipts; the direction for a sale if it was not paid, and the two provisions against restoration to the same company until full payment, indicate to my mind the unmistakable determination of the Convention and the people that the companies should, in the language of the prescribed ballot, "pay their bonds "-pay them in full-or lose their roads, their property and franchises. The answer made to all this is, that while the Legislature could not release the lien it could remit the debt. That while it could not restore the road to the same company after the State (See S. C.. 22 Wall., 594-604.) Construction of contract of carrier-railroad company, when not liable for loss by fire. had bought it in, it could sell to the company the debt which that company owed the State at any price it chose. That while the State could not release the lien by any legislative Act, it could compromise or sell the debt, and thus 1. An Indiana Railroad Company, forming part defeat, destroy or part with that lien. of a through line from the Southern States to BosIt is said if the Convention intended to prolumbus, Mississippi,to Boston; held, that the clause ton, having contracted to carry cotton from Cohibit the Legislature from dealing as it chose in the bill of lading, that such railroad company with the debt, it could easily have said so, in- would not be liable for loss or damage by fire, from stead of using the word "lien." If the Conven any cause whatever, covered the whole route, and tion had said that the Legislature shall have no was not to be limited to a part of the distance only. 2. The cotton having been destroyed by fire on power to discharge the debt without full pay the route, before it reached such railroad; held, ment, it could then be argued with much more that the Company was not liable for the loss. force that the lien might be released though the [No. 431.] debt could not be touched. On the other hand. Submitted Nov. 18, 1874. Decided Nov. 30, 1874. so long as the lien remained the debt must re main, for there could be no lien without the debt. It seems to me, therefore, that the Convention used the stronger and better term, the one which included both, and which expressed precisely what they meant, namely: that both the debt and the lien of the debt should remain inviolate except by payment. If there could be any doubt of this, the form of submission of the ordinance on which the people voted, that the roads should pay their bonds," makes it too clear for dispute. But of what avail are constitutional restrictions of legislative power, or legislative restric tions of municipal power, if they are disregarded by the Legislatures and municipalities? It may be said that there remains to the people the protection of the courts. But language is at best a very imperfect instrument in the expression of thought, and the fundamental principles of government found in constitutions must necessarily be declared in terms very general, because they must be very comprehensive. The ingenuity of casuists and linguists, the nice criticism of able counsel, the zeal which springs from a large pecuniary interest, and the appeal of injured parties against the bad faith of the Legislatures who violate the Constitution are easily invoked, and their influence persuasive with the courts, as they always must be. And if language as plain as that we have been considering, a purpose so firmly held and clearly expressed, is to be frittered away by construction, then courts themselves become but feeble barriers to legislative will and legislative corruption, and the interest of the people, which alone is to suffer, has but little to hope from the safeguards of written constitutions. These instruments themselves, supposed to be the peculiar pride of the American people, and the great bulwark to personal and public rights, must fall rapidly into disrepute if they are found to be efficient only for the benefit of the rich and powerful, and the absolute majority on any subject will seek to enforce their views without regard to those restrictions on legislative power which are used only to their prejudice. My brother Davis concurs in this dissent. Nates for the District of Indiana. N ERROR to the Circuit Court of the United Suit was brought in the court below by the defendant in error, to recover the value of thirty bales of cotton, lost by fire, in transit. The fire occurred between Columbus and Evansville. The bill of lading which constituted the contract is set forth in the opinion. The case is further stated by the court. Judgment having been given in favor of the plaintiff, the defendant sued out this writ of error. Mr. Asa Inglehart, for plaintiff in error: It is insisted that the answer is not good because, by the express terms of the bill of lading, the undertaking of the plaintiff in error is to carry from Evansville to Boston, and the exceptions being confined to the contract to carry the goods between the points mentioned, the allegation that the loss occurred before the goods reached Evansville, does not bring it within the exception. In other words: the exception, being confined and limited to a contract for carrying from Evansville, cannot be extended to a loss of the goods while in the possession of the carrier before they reached Evansville, and the common law liability attaches. But this argument proves too much. It is conceded on all hands that the exception is co-extensive with the contract for carriage in the bills of lading; if, therefore, the exceptions do not apply to losses before the goods reached Evansville, neither does the contract for carrying extend there, and hence, the answer is clearly good, for there is no pretense of any right of action except upon the contract contained in the bill of lading. Messrs. Charles Denby and Jas. M. Warren, for defendant in error: "The responsibility attaches from the moment of the receipt." Fland. Ship., sec. 198. "Contracts to forward goods from one place to another and distant place, subject the party as common carrier for the whole route, although his own transportation line extends only part of the distance, and the loss occurs on a portion of the route on which he is not interested. Fland. Ship., sec. 311, n. 1; 3 Sandf. Super., NOTE. From what liability a contract, that a common carrier is not to be responsible for loss or dam age, will exonerate. See note to N. J. Steam Nav. Co. v. Merch's. Bk., 47 U. S. (6 How.), 344. Liability of common carrier for goods to be transported beyond its terminus. See note to R.R. Co. v. Mfg. Co., 83 U. S., XXI., 297. 610: Bulkley v. Naumkeag Steam Cotton Co., | lessor, are to be construed favorably for the 24 How., 386 (65 U. S., XVI., 599). lessee, and against the lessor. Chit. Cont., 94. Parties are presumed to intend what they have put into writing. The Railroad Company having made a contract in which it stipulated that it would not be responsible for the destruction of the cotton by fire between Evansville and Boston, it is presumed to have, waived any exception as between Columbus and Evansville, and the court will not permit it to prove a usage or custom which may vary or contradict the written statement. The attention of the agent might have been called to the conditions in the printed red lines in the bill of lading, and we suppose it to be true that he read them, and having read them he saw that they only applied to that portion of the route between Evansville and Boston. The Railroad Company received the 200 bales of cotton at Columbus, consigned it to its road at Evansville, and agreed that, "Upon the arrival at Evansville of the property above described and consigned," it would receive and forward the same to destination upon the following conditions. After reciting the conditions, it goes on to say: "Said property to be forwarded immediately after its arrival at Evansville, or as soon thereafter as it is ready for shipment."The agent at Columbus received the property and consigned it to the Company at Evansville. The Company agreed to receive it upon its arrival at Evansville, and to forward it upon the "following conditions." How can language be made more plain? No rule of interpretation can construe the exceptions to apply to that portion of the route from Columbus to Evansville. If the parties had so intended they would have used apt language for that purpose; language that would have admitted of no doubtful meaning. Where a construction is to be put upon a writing, it is to bear that interpretation which the words in their literal, natural meaning would signify; and if that be clear of doubt, no other construction can be given. Hawes v. Smith, 12 Me., 429. The rule is, that a deed is to be taken most strongly against the agent or contractor in favor of the other party. 2 Bl. Com., 380. If a party leaves anything ambiguous in his expression, such ambiguity must be taken more strongly against himself, as if a carrier gives two different notices limiting his responsibility in case of loss, he will be bound by that which is least beneficial to himself. So, also, if an instrument be couched in such ambiguous language as to make it doubtful, whether it be a bill of exchange or a promissory note, the holder may, at his election, as against the party who made it, treat it as either. Mayer v. Isaac, 6 M. & W., 612; Edis v. Bury, 6 B. & C., 433. The general mode of construing instruments of writing in which there are exceptions, is to let the exceptions control the instrument so far as the words of it extend and no farther; and then upon the case being taken out of the letter of exception, the deed operates in full force. Chit. Cont., 87. So, in case of an exception in a lease, if there be any doubt about the meaning of the exception, the words thereof, being the words of the Mr. Justice Hunt delivered the opinion of the court: The pleadings and the briefs in this case exhibit an astuteness upon minor points hardly to be expected, and certainly not required from a State where a Code of practice is in force. The real question presented by the demurrer arises upon the construction of a written contract. The question made upon the form of the pleadings is quite unimportant. The Railroad Company above named is a Corporation created by the State of Indiana, for the running of a road between two points named, both of which are within that State. The road is on and is part of a line of transportation between the cotton fields of the South and the cotton mills of the North. For the purpose, apparently, of procuring freights over its road this Company has established an agency in the State of Mississippi, and there contracts for the transportation of cotton from that State to Boston, Massachusets, its own road forming one link of the chain of transportation. On the 10th of January, 1873, Messrs. Mitchell & Co. shipped from Columbus, Miss., to B. F. Bates, the treasurer of the defendants, and for them to be delivered at Boston, two hundred bales of cotton; the price to be paid for the transportation was $10.25 per bale. Of this cotton, thirty bales were burned before reaching Evansville, that is, between Columbus and Evansville, and the question is, whether the Railroad Company is responsible for the loss. The judge at the circuit court held it to be liable, and it is from this decision that the question is brought to this court. The bill of lading creating the contract is as follows, viz.: Evansville & Crawfordsville R. R. Co. Great through fast freight route to all points north and east, via. Pennsylvania Central, Erie and New York Central Railroads. Contract for Through Rate. A. E. SCHRADER. General Freight Agent, Evansville, Ind. This reliable through line makes the shipment of cotton and tobacco a specialty, and guarantees quick time and deliveryin good order. Columbus, Miss., January 10, 1873. Received from Mitchell & Co. the following packages, (contents unknown,) in apparent good order, viz. Mark, Consignees and Destination. of transhipment; also damage or delays by unavoidable accidents; also loss by fire, collision or dangers of navigation, or for loss or difference in weights, torn baggage, or condition of said property. Printed in The Evansville & Crawfordsville red ink in Railroad Company will not be liathe exhibit. ble for loss or damage by fire from Clerk. (any cause whatever. All property shipped on this contract will be subject to the expense of necessary repairs and re-marking. In the event of loss or damage under the provisions of this agreement, the value or cost at the point of shipment shall govern the settlement of the same. Said prop erty to be forwarded immediately after its arriv. al at Evansville, or as soon thereafter as it is ready for shipment, and to be delivered at Boston, Mass., upon the payment of the freight and charges as herein specified. In witness whereof the agent hath affirmed to four bills of lading of this tenor and date, one of which being accomplished, the others to stand void. Through rate $10.25 per bale from Columbus to Boston. L. Q. AYRES, Agent. The defendants in error rely upon that clause of the contract which contains the provision that" Upon the arrival at Evansville and delivery of the property above consigned, they will receive and forward said property to destination upon the following conditions." Among these conditions is one, that the Company will not be liable for loss by fire while in depots or places of transhipment: and another, that they will not be liable for loss by fire, collision or dangers of navigation or loss or difference in weights, etc. The cotton had not arrived at Evansville when the loss occurred, and the argument is, that the condition of an exemption from liability in the case of a loss by fire did not attach, and that the Railroad Company must be subjected upon the general principle of its liability as a common carrier. Had the bill of lading contained nothing more than the terms and clauses thus referred to, this argument would have been a strong one. We must, however, examine the whole contract, and construe and give effect to all its provis ions. self into two parts-one, limiting the liability of the Railroad Company from Evansville to Boston, the other governing its liability generally. Thus the portion already referred to as relied upon by the defendants in error, undoubtedly was intended to be limited in its range. The liability under it and the exemption also, is expressly made dependent on the arrival of the goods at Evansville, and until they have so arrived, neither the liability nor the exemption commences. We can, however, be asked to hold that the liability or the exemption on a portion of the route is entirely omitted from the terms of a bill of lading which provides for transportation over the whole route, and where the compensation is specified as cov ering the whole route, only where it so appears by the plainest language. No doubt terms might be used in a bill of lading for the transportation of cotton from Mississippi to Massachusetts, by which exemptions from liability for loss by fire while in a railroad car from Evansville northward should be made, and no such exemptions should be made while the cotton was on the deck of a steamboat. We should not, however, expect to find such provisions, and we should require them to be clearly expressed. All of the first general paragraph of the bill of lading may fairly be said to relate to the conditions upon which the transportation from Evansville northward shall be made. In its general terms we have already considered that paragraph. A new subject, however, is taken up in the next sentence. It is not only the beginning of another paragraph, with the usual space between it and what precedes it, but it is printed in red ink, while what precedes it is in ordinary black type. Its importance in the opinion of the shippers is thus manifested. Attention is called to it as involving important provisions. Dropping the reference to Evansville, and the arrival of the goods there, it uses the most gen eral terms: " The Evansville and Crawfordsville Railroad Company will not be liable for loss or damage by fire, from any cause whatever." It is an evident addition to the contract as expressed in the first clause. The Railroad Company there define the terms and conditions upon which they will be liable after the property has reached Evansville. While on the passage from Evansville northward, non-liability for loss by fire is twice stipulated for-once while in depots or places of transhipments, and again in general terms-the evident object and intent of the first clause is to affect this part of the route only. A new branch of the contract is then taken up, and the difference is intended to be made plain to the eye as well as the understanding. In the red ink clause they use terms applicable to the entire contract of shipment, viz.: They "will not be liable for loss or dam age by fire, from any cause whatever." No language of limitation is used. It is as if they had said," Should damage by fire occur to this cotton during any part of the route, and from any cause whatever, this company will not be This bill of lading, in the first place, is a contract covering the cotton during the entire period of its transmission from Columbus to Boston, and over every part of the route. Not only is this the general law of the bill of lading, from the fact that Columbus was the place of receiving and Boston the place of delivering the cotton, but this bill of lading is emphatic in its declaration that such is its character. It is headed, "Great through fast route to all points north and east," etc. It says: "This reliable through line makes the shipment of cotton and tobacco a specialty;" contract for a through rate;" and again, Through rate $10.25 per bale from Columbus to Boston." All these expressions are found in the bill of lading before us. It is evident, therefore, that the cotton is the subject of the contract of carriage from Evliable." ansville to Boston not only, as the plaintiffs ar It is quite unreasonable to suppose that the gue, but from Columbus to Evansville as well. Company here intended to guard themselves Bearing this in mind, it will be observed in against a liability for which they had twice althe second place, that the contract separates it-ready stipulated that they should not be liable, 46 to wit: of loss by fire after the cotton had reached Evansville. The clause in red was in tended to cover the whole contract. Wherever, whenever or however they would by law be liable for a loss by fire, from that liability they intended to relieve themselves. The exemption was intended to be as broad as was the original liability. A careful reading of the bill of lading shows that the red ink clause not only, but all that follows it, must have been understood by the parties to cover the whole route, and not to be limited to a part of the distance only. Thus, after providing an exemption from liability for loss by fire from any cause whatever, the bill of lading goes on to say, "All property shipped on this contract will be subject to the expense of necessary repairs and remarking." Can it be doubted that, if the sacks of this cotton had required repairing or remarking from causes occurring before it reached Evansville, it would have been a proper item of expense under this clause? "In the event of loss or damage under the provisions of this agreement (it proceeds) the value or cost at the point of shipment shall govern the settlement of the same." No one can doubt that the value at Columbus will govern the amount of a recovery under this clause. And again; the clause," Said property to be forwarded immediately after its arrival at Evansville, and to be delivered at Boston upon the payment of freight and charges," is, by its very terms, applicable to goods not yet at Evansville, when the contract takes effect. * * * We are of opinion that the argument of the defendants in error, upon which the judgment below was based, that the exemption from liability by fire was limited to fire occurring after the cotton had been received at and shipped from Evansville, was erroneous. The exemp tion covers the entire route. The judgment of the Circuit Court must be reversed, and judgment upon the demurrer is ordered in favor of plaintiffs in error. 2. In a suit on a replevin bond, the defendants cannot avail themselves of the failure of the court to render in the replevin suit the alternative judgment for the return of the property or for its value; even if that were an error, for which that judgment might be reversed. 3. If a return be awarded in the replevin suit,the surety is liable on the condition of the bond to return, and this without execution or other demand for its return. The judgment establishes the liability. 4. Nor is this liability to be measured, in this action, by the value of the interest in the property of the attachment debtor for whose debt it was seized by the sheriff. The value of the property at the time it was replevied, limited by the debt still due on the attaching creditor's judgment, and the penalty of the replevin bond, are the elements of ascertaining the damages in the suit on that bond. 5. When it appears for the first time in the argument of a cause that the judgment appealed from is not in the record, the court of its own motion may allow plaintiffs in error a certiorari, and time to produce a certified copy of it. [No. 40.] Argued Oct. 28, 1874. Decided Dec. 21, 1874. [N ERROR to the Supreme Court of the Territory of Montana. The case is fully stated by the court. Messrs. J. Hubley Ashton and N. Wilson, for plaintiffs in error: The first question is, whether or not Lomme was entitled to bring this action in his own name upon the undertaking of Roberts, in which the plaintiffs in error (defendants below) became sureties for Watson. The sureties therein are expressly bound to the defendant in the action for possession. Now, there was no evidence offered by the plaintiff on the trial, of any assignment whatever of the bond to him by Roberts, or that Roberts had ever delivered the bond to him. In order to hold the sureties in such an undertaking in any case, the value of the property must be found by the jury in the replevin suit. The judgment prescribed is "for a return of the property or the value thereof, in case a return cannot be had, and damages for the taking and withholding the same." Laws of Montana, p. 77. The defendant took a judgment not appropriate to the action or warranted by law; and JOHN M. SWEENEY ET AL., Plff's. in Err., if the sureties were concluded, the effect would v. JOSEPH A. LOMME. (See S. C., 22 Wall., 208-215.) Replevin bond, suit on-defenses to liability of surety-measure of-correction of record. 1. In a suit on a replevin bond given to the sheriff, where the question whether the proper party to sue is the sheriff or the party for whose benefit the bond was given, depends upon the Code of Practice of Montana Territory, this court will not reverse the decision of the Supreme Court of that Territory on the construction of their Code. *Head notes by Mr. Justice MILLER. be to change their contract in a most material point. This was the view of Judge Denio, of the Court of Appeals of New York, in a similar case, under a similar statute. He said: "One principal and surety is, that the latter cannot be of the most common principles in the law of charged beyond the fair import of his undertaking, nor where there has been any substantial change of the contract of the party for whose performance he has become responsible." Gallarati v. Orser, 27 N. Y., 327; see, also, Nickerson v. Chatterton, 7 Cal., 571; Clary v. Rolland, 24 Cal., 149; Giuaca v. Atwood, 8 Cal., 446; Fitzhugh v. Wiman, 9 N. Y., 563. The form of execution prescribed by the Montana Code (sec. 251) for the delivery of the possession of personal property, is identically York Code, which was construed by Mr. Justhe same as provided by section 289 of the New tice Selden, in Fitzhugh v. Wiman. Laws of Montana, 1872, p. 81. Mr. Robert Leech, for defendant in error: There being no judgment in the record in this case, it is submitted that this court has no |