Saint Paul weekly Minnesotian., 1858-11-27


security therefor, the Governor shall demand
and receive from each of said companies be-
fore any OF said bonds are issued, an nstru-
ment piedglng the nett profits of the road, for
the payment OF said interest, and a conveyance
to the State of the first two hundred and forty
sections OF land free from prior membranes
which such company is or NAV be authorized
to sell, in trust for the better security of the
treasury of the State from loss of said bonds"
and authorizing the Governor to make title to
such lands to certain purchasers. Then fol-
lows that portion already granted
AS has been before stated there can he no
reasonable doubt that the end and object of
the amendment, taken altogether, was "for
the purpose OF expedting the construction of
these lines of railroad;" and it seems equally
clear that the design of the clause under con-
sideration was to provide the State with GER
tain class of securities in addition to those al
ready designated as the security required Of
the companies for the punctual payment of
the principal or interest of these bond. The
The language refers to the kind and not to
the sufficiency of the security. This clause
then, should be so construed as not to defeat
the object of the section itself, and majority
of the Court holds that the construction con-
tended for by the Governor, has a direct ten
dency to that end. Nothing certainly could
more etfectually deter capitalists from invest
ing in these roads, than to find that notwith-
standing they may furnish, as in this instance,
tive-sevenths of the money necessary to con-
struct and equip these roads, the State may
nevertheless have prior lien on every thing,
which may be enforced TO the loss perhaps of
their entire interest We cannot now object
to the securities provided; all we can do is
n hot HOY ba L. 4
contemplated.
The language is, that "as further security
an amount of first mortgage bonds on the
roads, lands and franchises of the respective
companies" &c. Ordinarily :" first mortgage
bonds" are simply bonds secured by the first
mortgage. Is there any thing to show that
the words mean anything more as here used?
We think not. Had it been the intention to
give priority of lien to the State, the tern
first mortgage" only would undoubtedly
have been used, which would have left no
room for doubt. Again, the words ian
amount of" preceding the term /" first mort
gage bonds" evidently implies portion only
OF greater amount, and necessarily q re-
mainder after the transfer to the State. What
is that remainder, or how can it be ascertained
or limited?
Some light may be thrown on these ques-
tiOns by referring to the mode of procedure
common among railroad companies. 1t is
usual for such companies after surveying and
locating their roads, to make careful estimates
of the cost of building and stocking the same,
and then if sufficient money is not raised
otherwise to provide for the issue of bonds,
based upon these estimates, to raise money to
build and equip them. These bonds are Sc
cured by mortgage on the road as franchises,
and are called first mortgage bonds. They
are from time to time put into into market
and sold as the eXiSenccs of the roads may
| require. This course is much in favor as it
gives to all who furnish money to build or
| equip the roads, an equal lien upon the sec,ir-
tiles, and is considered necessary to success,
as it would be next to impossible to obtain
money to stock road If it were encountered
with prior lien for the cost of construction.
Ii from any course these bonds are exhausted,
and more money is required, second mortgage
,"..,oSi,iiso ol>cUutc,i, anil tire Dur~ Sccurtd
by 1t are termed second mortgage bonds"
The charter of the company making this ap-
DlicatiOn is formed no doubt with view to Just
such course to raise money as here hdica-
| ted, (see sec. 81 of the charter) and as this
amendment of the Constitution was formed
with direct reference to the charter, of the sew
cral companies intended to be benefited it i.
not difficult to believe that the words "an
amount OF first mortgage bonds refer simply
to bonds of this class. When terms of art or
peculiar phrases are used, it must be supposed
they are used in the sense as understood by
persons familiar and acquainted with such
terms Phillips Ev. 1895. l Pick, 261
In constituting Constitution or law, the
history of its passage through the convention
or legislature is often of great assistance, and
the history of this amendment to the C0nsti-
tuition during its progress through the two
branches of the Legislature, fully sustain the
position that the State has no priority of lien
as to these first mortgage bonds. By refer
ence to the printed journals of both Houses
(Which however, do not contain any proceed
ing had in Committee of the Whole, where
most amendments are proposed and discussed)
it will be found that the bill proposing this
change in the Constitution originated in the
Senate, and passed that body on the ID day
of March, 1868. On the day previous to its
passage, Senator Cook moved to amend by in
serting in the clause under consideration, the
following: And the first mortgage (bOnds)
thus transferred to the State Treasurer shall
he tile first lien upon and shall taAe precedence
over any other bonds that may be issued, up
on the first fifty miles of road which said
companies may respectively construct" This
amendment was lost, and the bill was immed-
lately ordered to be engrOssed for third read
ing journal of the Senate, page 1861. At
tcrwards on the 4th day of March, while the
bill was pending in the House, Mr.. Libbey Of
fered an amendment giving to the State an seq
ctusire priority cf0W otAer liens" on the roads,
lands and franchises of the respective COM
panles, and this amendment also was rejected
by very decided vote. House Journal, 447.
Thus it will be seen that each branch of the
Legislature expressly negatived proposition
giving to the State any priority of lien as to
these first mortgage bonds; and yet it is insist
ted that the State has this priority by impli
cation. We think it is against the reason and
spirit, as well as the letter of the Constitution,
so to contend. Authorities were read to show
that, where words are doubtful in their mean
ing as between the government and an indi-
vldual, that construction should be gwen
which is most favorable to the public We
have been unable however, to discover such a
degree of doubt or uncertainty in the mean
ing of the language used, as Will make these
authorities applicable to the case on the con-
trary, the words are explicit and free from
Obscurity.
In constituting statute or constitutional pro- |
vision, the great object is to ascertain and
interpret so as to carry out the intension of
the law -giver and as a primary rule, the
language used is to be first considered as be-
ing the best evidence of what that intention
is and when the words are clear explicit,
unambiguous and free from Obscurity, courts |
are bound to expOund the language according
to the common sense ard ordinary meaning |
of the words. Broon1's Legal Maxims, ,365-6-7;
Story's Com. on Const., 3S3 Smiths Com. |
on Const., 627-8-9; l Kent Com, 462-17,
VT 479 Hill 1929.
1t is only interpolating words in the Con
stitution which the trainers thereof expressly
rejected, that any well founded doubt can be
entertained as to the meaning of the language
used. Other cases were cited to estaoIsh
or Sovereign to 'an' an in individual, nothing can
pass by implication but THIS rue however