Baltimore & Ohio Railroad v. State

Stewart, J.,

delivered the following dissenting opinion:

This Court, in the opinion delivered by Judge Alvey, has rested the reversal of the judgment of the Superior Court of Baltimore City and the determination of the case, upon the authority of the recent decisions of the Supreme Court of the United States in regard to the operation and effect of the Legal Tender Acts of Congress, .upon the theory that the case comes within the federal jurisdiction.

The learned Judge of the Superior Court, in pronouncing his judgment with the same decisions before him, had reached a different conclusion, and adjudged that the contract here in question, authorized the State to demand the debt incurred thereby, to be paid in gold, and was not within the scope of the Legal Tender Acts as expounded by the Supreme Court.

With great respect for the opinions of the majority of my brethren, it seems to me the judgment below ought to be affirmed; and it is proper and due to the magnitude of the case and the importance of the principles involved, as well as to my brethren, that I should state the reasons as they occur to me for this conclusion.

*547The suit was instituted by the State against the company, to recover the amount of interest paid by the State in gold on the sterling bonds of the State issued under the authority of the Act of 1838, ch. 386.

The bonds having been passed to the company by virtue of said Act, the company had paid the interest thereon from the time of their negotiation in 1849, until July, 1865, when it declined further to pay the interest; and the State, to maintain her credit, having paid the interest in gold from that time, claimed that the company was bound in good faith, and according to the provisions of law authorizing the issue of the said bonds for the use of the company, to indemnify the State. The company, on Ihe other side, insisted that it was only bound to pay the six per cent, provided by the Act of 1835, ch. 395, and that this it could pay in currency since the passage of the Legal Tender Acts by Congress.

Under an agreement of the parties, the case was submitted to the Court to determine from the interpretation of the Acts of 1835, ch. 395, 1836, ch. 261, 1838, ch. 386, and the other legislation of the State creating the contract between the parties, whether the compauy was bound to pay to the State the six per cent, provided by the Act of 1835, ch. 395, in gold.

As I understand the question in issue, it is substantially whether the company is bound, by the relations between the parties created by the said Acts, to pay back to the State in gold, the money the State has paid on the sterling bonds issued under the authority of the Act of 1838, ch. 386.

There could be no difficulty about the case if what constituted a legal tender at the time of the creation of the dealings between the parties by the Acts in question, was unaffected by the Legal Tender Acts and the decisions of the Supreme Court thereon, which are now considered by a majority of this Court conclusive of the case. Although I consider the said Acts and decisions as not applicable to this case, still it is proper I should at least advert to this aspect of it, as my brethren have rested their decision upon them.

*548It is a sound and well settled rule of interpretation respected by all judicial tribunals, that the established law should not be held repealed or modified by subsequent statutory provisions, unless they are clear and explicit to that effect. The same principle is applicable to all adjudications of the Courts. It is due to the good faith and integrity of contracts arid the honesty of all human transactions affected thereby, that the firmly recognized law should not be considered as overturned by judicial rulings, unless such is their plain effect beyond question.

According to these canons of judicial construction, I have not been able to discover in the Legal Tender Acts and the decisions of the Supreme Court thereon, clear authority for the reversal of the decision of the Superior Court.

It had become an established maxim of constitutional law, and so regarded by all the authorities of the Federal Government and the States, and as such recognized by all judicial tribunals throughout the country, that nothing but gold and silver could constitute a legal tender in the payment of debts or discharge of contracts. The States were prohibited from making any other tender, and the Federal Government was clothed with no power under the constitution to substitute paper, or anything else as a legal tender. Every body understood this to be the established constitutional law upon the subject, and contracts and dealings were regulated by parties according to this standard.

But during the late civil war — when expedients were adopted of questionable character in times of peace, and when the federal authority was stretched to the utmost extent, and unusual and extraordinary powers were assumed and exercised, upon the ground of military necessity, under the urgent circumstances existing, the Congress of the United States, in undertaking to meet the exigencies of the occasion, passed, after considerable opposition, the Legal Tender Acts of February 25th, 1862, July 11th, 1862, March 3d, 1863, June 30th, 1864, and the joint resolutions of January 17th, *5491863, declaring the notes thereby authorized to be issued, to be a legal tender in payment of debts, public or private.

These proceedings were regarded by the Congress of the United States at the time as justified, more as war measures than as strictly and truly within its constitutional authority. It is certainly not the safest role to place implicit reliance upon acts done or precedents adopted in the critical exigencies or extraordinary circumstances of a wide-spread civil commotion, threatening in its results fundamental dismemberment and disorganization of tlie government and its various departments. Accordingly it was found that when the constitutionality of these acts of Congress was first brought in question before the Supreme Court of the United States, in the celebrated case of Hepburn vs. Griswold, 8 Wall., 603, that Court decided by five judges to three that the Act was in violation of the Constitution so far as applicable to contracts antecedent thereto, and that all contracts prior to the passage of the Act for the payment of money, without express stipulation to the contrary, were payable in gold and silver.

In the later cases of Knox vs. Lee and Parker vs. Davis, 12 Wall., 457, when the twm additional judges that liad been appointed subsequent to the decisions in the former case, sat, the Court, by five judges against four, (the two new judges concurring with the previous minority,) thus making a bare majority, overruled the doctrine held in the case of Hepburn vs. Griswold, and decided that the Legal Tender Acts are constitutional, and apply equally to debts contracted before or after their passage.

But the Court, as at present constituted, in the case of Trebilcock vs. Wilson, 12 Wall., 687, in accordance with previous decisions, has determined that the Legal Tender Acts only apply to debts payable in money generally, and not to special contracts which require payment in coin, and' sanctions the law asserted in Bronson vs. Rodes, 7 Wall., 229, leaving special contracts to be construed by their particular terms, so as to effectuate 'the intention of the parties, of course, *550in regard to the medium of the payment as to other constituents of the contract.

In the case of Lane County vs. Oregon, 7 Wall., 74, the whole Court affirmed the obligation to pay the taxes in gold from mere implication.

From a careful examination of all these cases, together with Butler vs. Horwitz, 7 Wall., and the Legal Tender Cases, 12 Wall., 553, it is apparent that although the Supreme Court has reversed the decision of Hepburn vs. Griswold, thereby affirming the constitutionality of the Legal Tender Acts, when applied to debts contracted before their passage, as to those afterwards; that Court has not decided that those Acts are applicable to all contracts indiscriminately. But as to contracts with special provisions, express or implied, requiring a different medium of payment, that Court, I think, has made a distinction, that they are beyond the operation of the Legal Tender Acts. When the medium of payment is provided for expressly or impliedly, and is made an ingredient of the contract, or when its terms and provisions fairly require, in order to carry out the intention of the parties, tlfat the payment shall be in gold — how could the integrity of the contract be held unimpaired by a different construction, cfcc.?

The States are restricted from the enactment of laws impairing the obligation of contracts, and certainly no authority is conferred on the Federal Government,'or any department. thereof, to exercise such power. No construction should be given to any decision of the Supreme Court that can be consistently avoided, that would operate to trench upon the inviolability of contracts, or in effect repudiate their integrity.

At the time the cause of action accrued in this case, and when the trial was first had, as the unquestioned law and rulings of the Supreme Court then stood, the claim of the State was recoverable in gold. The late decisions having intervened, it is insisted, have deprived the State of the right to demand payment in gold. I submit, with due deference, *551that the law of tender, since the passage of the Legal Tender Acts, and the decisions of the Supreme Court thereon, is uncertain and unsettled in many respects, and that the last decision of the Supreme Court, changing the law of legal tender as understood before, is liable to be reviewed and reversed by their successors, and that the example of reversing the rulings of their predecessors may be followed with quite as much facility as their rulings, and the ancient and well-established law as recognized by the founders of the republic and the illustrious jurists and statesmen of former times, as well as their contemporaries, may be restored. See opinion of Chief Justice Marshall, in Sturges vs. Crowninshield, 4 Wheaton, 122, 205, and the judgment in Gwin vs. Breedlove, 2 Howard, 38, and 4 Webster’s Works, 265, 271, referred to in the opinion of the Court in this case.

The former decisions of that Court have been reversed to a qualified extent only, and this has been by a bare majority of the Judges. Under these circumstances, whilst recognizing the authority of these decisions in regard to the constitutionality of the Legal Tender Acts, and with every disposition to treat them with the respect due to our highest judicial tribunal, whenever their views are clearly announced; it is at the same time due to that Court, where their rulings are doubtful, and the antecedent law so clearly settled, that they should not be misunderstood, and effect given to their decisions to an extent not contemplated by them. Every reasonable effort should be made to give such construction to their decisions as will reconcile them, if practicable, with the antecedent law, and thus administer substantial justice between litigants, and maintain the integrity of their contracts.

From the obscurity and uncertainty of the law of legal tender now upon the subject, to make the most of it towards sustaining the views of the company, upon the assumption that the contract in this case is not one of indemnity to the State for its disbursement in gold for the company; and that it can be brought within the range of federal jurisdiction, I *552do not think the ease ought to be decided on the ground taken by the majority of this Court, to wit: that, the question involved here has been authoritatively adjudicated by the Supreme Court.

o On the contrary, according to my apprehension, tire Supreme Court has not settled any such principle; and it seems to me, under the circumstances, the decision of the Superior Court ought to be affirmed, and the option given to the company to have the case reviewed by the Supreme Court, when that Court can authoritatively decide whether, according to their views, the provisions of the contract here in question, aré reached by the Legal Tender Acts.

Much of the able and ingenious argument of the learned counsel of the company was directed to show that the State was a mere preferred stockholder in the company, and not a creditor, which latter capacity might entitle her claim to greater consideration.

I concur with the majority of the Court, that whether the State was the one or the other, or both, in a qualified sense, does not materially affect the question involved, because in either character the State was entitled to be paid in gold, as the law of tender stood at the time of the contract.

But the rights of the State are not precisely and fully stated, or certainly not to their equitable extent, by considering the State as claiming simply in either of these capacities as ordinarily understood, because the State has equities beyond those of a mere stockholder or creditor. The State may in some sense be described in her relations with the company, as a creditor or stockholder; but in truth, as I understand the transaction made by the statutes in question, the State, by the issue of her bonds, merely intended to facilitate and aid the company, by enabling it to effect a loan through the credit of the State; and the - company to indemnify and secure the State from loss, undertook, in the mode and form prescribed by the Acts of the Legislature authorizing the loans, to furnish that security or indemnity. In order that the State might *553the better accomplish this result and have the corresponding power to protect her interests in the matter, she was constituted a quasi stockholder in the company, with proportional authority in the board of directors of the company — -The Slate consenting to take stock under the limitations prescribed, by the statutes, with the guarantee of the company to pay six per cent, from the profits of the work, for the purpose of securing herself in that toay.

The enterprise being one of great promised public utility, and calculated largely to develop the resources of the State, had claims upon the State, as the sovereign authority, to lend its assistance to promote the success of the company. Such considerations and inducements undoubtedly prompted the State to lend her credit to the company and to incur the risk of the security upon the guaranteed payment of the six per cent, from its profits, which were for that purpose and to that extent sacredly dedicated and pledged by the contract. The substantial import of the transaction between the State and the company, shows very conclusively to my mind, that it was a contract to secure the State, on account of the State becoming responsible for the company on the loan made to the company; that the company, for the purpose of indemnifying and securing the State on account thereof, gave the lien of six per cent, per annum interest on the debt upon the profits of the company.

This is the substance of the arrangement between the parties, disclosed by the provisions of the statutes relating to the transaction as between the State and the company. The former stands rather as the surety or guarantor of the latter on the sterling bonds; and in good faith, the company, the true debtor, has bound itself in effect by the stipulations of the contract, to pay the interest of .this debt in gold, in order to relieve and indemnify the State, which duty it punctually performed until July, 1865, after which, failing to do so, and the State to maintain her credit, having been compelled to pay the interest for the company, now has a just and valid *554claim to be fully, indemnified for her disbursements on that account.

This I take to be the true and legal theory of the contract. But if it is not in legal effect a contract of indemnity, and it is simply an ordinary contract on the part of the company to pay the State the six per cent, interest on the amount of the loan, or substituted stock as the creditor, or preferred stockholder of the company; in that event the nature of the contract requires that the company shall pay its debt to the State in the same medium of payment the State has to discharge the debt contracted for the company — the State being obliged to pay in gold — the company, by virtue and in pursuance of the contract, is under a legal obligation to discharge its debt to the State in gold.

I hold that no rulings of the Supreme Court, under the Legal Tender Acts, authorize a different medium of discharge.

A brief examination of the stipulations between the State and the company, as indicated by the legislation of the State, referred to in the agreement, will clearly show, according to my judgment, that it was a contract of indemnity by which the State was to be secured and kept harmless by the company, under the arrangement made by the various provisions and stipulations found in the statutes upon the subject.

The Act of 1835, ch. 395, provided for currency six per cent, bonds ,of the State, to be met and discharged by the six per cent, interest or dividend to be paid by the company. The terms of that Act were modified by the Act of 1838, ch. 386, by substituting in the place of the six per cent, currency bonds, the five per cent, sterling bonds, and the contract was changed by the consent of the parties accordingly.

The company could have paid the six per cent, interest in currency to meet the interest upon the bonds of the State, payable in like medium, (currency,) as authorized by the Act of 1835,. ch. 395, so long as the provisions of that Act continued to embrace the terms of the contract, and currency might be the medium of payment of both ; but, by the *555acceptance of the provisions of the Act of 1838, ch. 386, and the modifications made in the previous contract thereby, the company became bound to pay the six per cent, on the debt or stock in gold, because of the five per cent, interest in gold to be paid by the State on the sterling bonds authorized by the Act of 1838, ch. 386.

The contract of the parties was converted by that Act into mutual stipulations for payment in gold. This was the effect of the Act of 1838, ch. 386, changing the currency bonds of the State into sterling bonds, affecting alike each party in regard to the medium of payment. These statutes created the contract between the State and company, by which the State practically authorized the company to use the sterling bonds in effecting a loan for her own accommodation; the company agreeing to secure the payment of the interest thereon for the State’s indemnification.

It was to all intents and purposes, when reduced to its plain elements, free from the mass of verbiage used in the statutes, the debt of the company itself. It was neither an investment by the State in the stock of the company, nor a subscription to its stock simply as an ordinary creditor or stockholder, but a form adopted by the parties to secure the State for the loan of the bonds to the company.

What is there in the whole proceeding reduced to its natural dimensions, to show it to be any other thing than the debt of the company contracted by it through the agency of the State, and upon the guaranty of the State; the interest of the debt secured to be paid to the State by the lien of six per cent, on the profits of the work ?

This seems to me to be the plain and simple analysis of the 9th section of the Act of 1835, ch. 395, and the 1st section of the Act of 1838, ch. 386; the material provisions creating the contract between the parties. By the said 9th section the State was entitled to secure a perpetual dividend of six per cent, per annum from the profits of the work, and no more, on account of the loan contracted by or for the company, for *556which'the State agreed to become responsible. The transaction assumed this form to secure the State for the advance to the company of the six per cent, bonds thereby authorized. The State was restricted to the receipt of six per cent., whilst the stockholders generally might receive more or less, according to the profits of the enterprise.

This fact, per se, is sufficient to show that the State was not a mere stockholder. Besides, this Court has decided (State vs. Baltimore and Ohio R. R., 6 Gill, 383, 384,) that the guarantee to the State of the six per cent, under the Act of 1835, ch. 395, is from the gross profits of the work, and in no manner impaired by the Act of 1838, ch. 386; shewing very clearly the State was not an ordinary stockholder. Under the 1st section of the Act of 1838, ch.- 386, upon the acceptance of the provisions of that Act by the company, and the execution of the required guarantee, sterling bonds redeemable in London at any time after fifty years, bearing interest at five per cent., payable semi-annually in London, on the 1st of January and July in each year, were authorized to be issued for the use of the company in lieu of the previous securities authorized by the Act of 1835, ch. 395; and equivalent to the amount of the bonds delivered up by the company. The Commissioner of Loans was required to give to the company in the proportion of $3,200 of the sterling bonds for every $3,000 of the prior securities delivered up — the company paying the interest at five per cent, on the stock created by the Act semi-annually, at least ninety days before the 1st of January and July, for the term of three years from the date of the bonds, together with the costs of transmitting the interest to London to be there paid, and also the difference in exchange of currency between London and Baltimore. In brief, under the Act of 1835, ch. 395, the interest on the loan of the currency bonds authorized by that Act was to be met for three years from the expected premium on the sales of the bonds; after that time the company guaranteed six per cent, to the' State.

*557Under the Act of 1838, ch. 386, the five per cent', sterling bonds were substituted for the former bonds, and the company agreed to pay the interest eo nomine for three years, in lieu of the premium on the currency bonds, to bo secured by reservation of bonds. There was no occasion for further provision in this last Act as to the payment of the interest, because that was already secured by the Act of 1835, ch. 395, in the guarantee of the six per cent, interest. By these several provisions the payment of the interest on the sterling bonds, as well for the specified three years as afterwards, was secured to the State for its indemnification. The express obligation to pay for three years was for that purpose. The perpetual guarantee of the six per cent, ivas of like import; otherwise the State must be considered as only stipulating for her indemnification for three years; whereas the whole arrangement shows it to have been the design not only to indemnify the State temporarily, but perpetually. The payment of the five per cent, for three years provided by the Act of 1838, ch. 386, without reference to the profits of the work; and the six per cent, by the Act of 1835, ch. 395, guaranteed upon the profits, were both intended for a similar purpose, to wit: to provide the fund by which to discharge the liabilities of the State on account of the bonds. The six per cent, provided by the Act of 1835, ch. 395, could have no other object, after the currency bonds which that Act authorized, and the interest upon which was to be therewith met, had been superseded by the sterling bonds of the Act of 1838, ch. 386. The company was obliged to pay the five per cent, on the sterling bonds for three years, for the State’s indemnification; the six per cent, in question must by intendment bo for a like purpose, without the Act in so many words expressly so providing. If the one was to indemnify the State, so was the other unquestionably. After the expiration of the three years, the payment of the six per cent, ivas provided by the parties to meet the State’s obligation for interest on the sterling bonds used by the company, and the costs and charges incident to *558the foreign payment. By the express provisions of these Acts and their fair construction, the State authorized the company to borrow the money in Europe 'for its own use upon the credit and authority of the sterling bonds, to be paid in gold. The company, with a view of indemnifying the State, and to enable the State to meet the indebtedness, obliged itself to pay to the State six per cent, annually after the three years specified- in the Act of 1838, ch. 386. The clear and necessary import of the stipulations between the parties, to my mind, shows the contract to be one of indemnity and equivalents; and that the company contracted to pay to the State sufficient to cover the State’s disbursements on its account either in currency or gold.

But if the statutes in question do not make the contract one of indemnity, and the State is merely a creditor or stockholder, the special provisions of the contract will not be gratified if the company is permitted to discharge its part of the contract in currency, whilst the State is required to meet her obligations in gold. The mutual obligations of the same contract require the same medium of payment to be applied to both parties. Neither party, as the terms of the contract show, intended that the State should be a loser by the accommodation, and any construction so resulting, must be erroneous.

Parties may expressly or constructively contract to pay in gold or paper, in meal or malt, or other commodity; and in the same contract there may be stipulations for respective payments in different mediums; but when the contract is silent as to the one, and express as to the other, I know of no analogy, or any inductive process, by which an inference can be deduced, that the payment is to be made in two different mediums — the one in gold, the other in paper. Without some express provision to that effect, I am not able to perceive upon what principle of just construction such a result can be reached. I cannot believe that the Supreme Court ever intended to sanction such an application of the Legal Tender Laws of Congress.

*559The debt contracted by the State for the use of the company was to be paid in gold. The only source provided in the contract for such payment, was the stipulated amount to be paid by the company to the State, and designed by the contracting parties to he the equivalent of the interest payable by the State, which could not be the case unless paid in gold. The obligations of the same contract as to the parties and subject-matter, contracted on the one side with corresponding liabilities on the other, predicated upon the theory of their discharge, on either or both sides in gold, cannot be gratified by requiring one party to meet his in gold and allowing the other party to discharge his in a depreciated medium.

The majority of this Court has treated the contract between the State and company as if it were an ordinary one for the payment of money, that is, that the company was simply bound to pay the six per cent, as so much money generally, without other purpose or object (whether considered as interest or dividend was immaterial,) and viewed in that light, that it was embraced by the rulings of the Supreme Court upon the Legal Tender Acts.

If that were the true interpretation of the contract, and it contained but the simple obligation to pay the six per cent, upon the stock or loan, as such, disconnected from the other consideration, that the six per cent, so to be paid was to enable the State to pay the interest on the debt contracted by the company, or by the State on her account, there might he ground for resting the case upon the decisions of the Supreme Court, and permitting the company to discharge its obligations in the currency provided by the Legal Tender Acts.

But with deference to their views, I submit that the contract is a special one, and for a specific purpose, to wit: In consideration of the Stale having agreed to deliver the sterling bonds to the company to enable it to realize the money thereon, the company contracted to pay to the State five per cent, per annum on the sterling debt or stock, as it is called *560in the Act, for the term of three years, to be secured by a lien on all its property and revenues, or by reservation of bonds, and ever afterwards six per cent, per annum, secured by a pledge of stock guaranteed to pay six per cent, from the gross profits of the company. . Construed with all its stipulations, it was not a mere obligation on the part of the company to pay money generally, but specifically to pay money to meet the interest on the debt contracted by the State for the company. The payments were made sufficient for that purpose by the tenor and effect of the contract between the parties, and it was not the mere “ supposition or expectation of the State” that this would be so, but the imperative obligation of the company and the corresponding right of the State, according to the contract, that it should be so; and nothing short of a positive or constructive violation of the contract in this particular, can enable the company to be discharged by paying a less amount than the State has to pay on the debt, according to my judgment.

It seems to me, much of the fallacy of the view taken in defence of the company, proceeds from considering the case as if there were two several and distinct contracts between the State and the company.

By the one, that the State simply agreed to advance the sterling bonds, the company to pay the State interest thereon, as creditor or stockholder of the company. By the other, that the company agreed to pay the six per cent, to the State for the loan of the sterling bonds. Whereas, in legal contemplation, the Acts referred to, constitute but a single contract between the parties, with mutual stipulations and obligations as stated.

Where there are relative and dependent rights and obligations, and mutual stipulations between the parties, well defined and prescribed by the one contract, and making a part thereof, and provided for in the creation of the contract, all the elements of the transaction, and the considerations governing the contracting parties must be regarded, in order to *561give to the contract such interpretation as will measure out equal and exact justice to each party alike, according to the terms and stipulations of the contract. It certainly does not seem to me to be a just rule to apply to the transactions of these parties in regard to the same contract and subject-matter, to wit: The medium of payment, which compels the one party to pay the debt contracted for the other in gold, and suffer the other party to discharge its indebtedness on account thereof in a depreciated medium.

It is a well settled rule in the construction of contracts that the intention of the parties must be regarded, and this applies as well to the medium of payment as to any other provision, if that be one of the elements of the contract.

If parties contract to pay money generally, although gold may be understood to be the only legal tender, and consequently gold may be in the contemplation of the parties, yet, as I understand the decisions of the Supreme- Court, such contract must be taken with the understanding that the law may change the character of the tender of payment.

But if there is a special contract stipulating for payment iii gold, from its nature express or implied, gold must be' the medium of payment. That stipulation being part and parcel of the contract, must be carried into effect as such in good faith. If a contract provides, by express or implied terms, that whatever should be the medium of payment, gold, silver, paper, or other commodity, of the one, the same should fee applied to the other; and the one has' to- pay in- gold, can there be any question that the other is required, under the obligations of the contract, to meet his in. gold t Certainly it was, and still is competent for parties so to contract, and the Courts must enforce their contracts accordingly. The provisions of the contract may be express or contingent as to the character of the medium of payment, either in gold, paper, or other commodity; or it may be but a matter of inference,, to be deduced from the nature of the obligations of the-contract-.

*562The collector in Oregon being required to pay the taxes into the State treasury in gold, therefore as a correspondent obligation the taxpayer could not discharge his indebtedness for the taxes in currency, but must pay them in' gold.

The State, in this instance, is obliged by the contract between the parties to pay in gold in Europe on her sterling bonds, issued for the use of the company; and the company agrees and obliges itself to furnish the money in the payment of the six per cent, interest on the correspondent debt it owes to the State on account thereof, which must be in the same kind of money — there being'ho provision of the contract to discharge the company by any reduced medium of payment. The Supreme Court, in none of its decisions, as I apprehend them, has ever intended to sanction an application of the Legal Tender Acts, capable of accomplishing such unjust and unequal results, in the adjustment of the respective rights of the parties under the same solemn and bona fide contract, as inferred by the opposite theory.

According to my apprehension, the six per cent, provided by the Act of 1835, ch. 395, to be paid to the State, was and still is due and payable in gold, and the State is justly and legally entitled to the $289,489 claimed by her.

Judge Dobbin, of the Superior Court, in my judgment, was right in holding the company bound under the contract, and the mutual stipulations thereof, to pay the claim of the State in gold, and that the Legal Tender Acts and the decision of the Supreme Court thereon, have not relieved the company from that obligation. The judgment below should accordingly be affirmed.