a thorough knowledge of every phase of the case, as shown by the report accompanying the forfeiture bill. The grant would remain suspended in mid air, as it were, until the Atchison, Topeka & Santa Fe Railroad Company, bondholder, graciously saw fit to foreclose its mortgage, or to construct the road at its own pleasure; and in the meantime no settler could obtain a homestead thereon, and no county or state revenue could be derived therefrom by taxation. The contention of plaintiff is equivalent to the proposition that this mortgage act is a license coupled with a grant. We think it a license, and, if correct, as Lord Chief Justice VAUGHAN said in Thomas v. Sorrell, Vaughan, 330, "a dispensation or license properly passeth no interest nor alters or transfers any property in anything." We construe this proviso by the rule laid down by an eminent English chancellor: "If you find the first words have a clear meaning, but those that follow are inconsistent with them, to reject the latter." It is true that we must consider not only the contract of the United States with the corporation, but also the rights of parties contracting with the corporation. 2 Mor. Priv. Corp., sec. 1047; Black, Const. Prohib. 16. But here the mortgagee was by the very terms of the mortgage act put upon notice of the condition of the granting act, and further notified, as we construe it, to this effect: "At the time of the foreclosure of your mortgage, if a breach has been committed, your rights will only pertain to lands actually earned at the time we take advantage of such breach." This construction. is not so much strained as that contended for by plaintiff, is in conformity with the best interests of public policy, agrees with the conditions of the granting act, and is in accord with the intent of congress as expressed by the act of 1866 and the forfeiture act of 1886.

Where there are two statutes, the one granting certain powers or privileges, and the latter extending

the power to different subjects, even without mentioning the limitations of the former act to the subject of its grants, these limitations may by construction be held to attach to the new subjects, when such construction is in consonance with the manifest intention of the legislature. Chamberlain v. Chamberlain, 43 N. Y. 424.

Mr. Justice Field said: "Instances without number exist when the meaning of words in a statute has been enlarged or restricted and qualified to carry out the intention of the legislature." Eureka Con. Min. Co. v. Richmond Min. Co., 4 Sawy. 302; Reiche v. Sinythe, 13 Wall. 162. Where the scope of a general provision is the subject of consideration, there is always a leaning, not only to prevent obscurity, but injustice, for neither can be presumed to be intended. Board v. Spackman, 13 Q. B. Div. 878; Murray v. Gibson, 15 How. 421. The intention of the act is what should be sought for, and the intent will always prevail over the literal sense of its terms. Cearfoss v. State, 42 Md. 406; Reynolds v. Holland, 35 Ark. 56. When two portions of an act of legislative grant are repugnant or in conflict, the established rule is that the former prevails over the latter. Fore v. Williams, 35 Miss. 522; In re Second Ave. Church, 66 N. Y. -. It seems consonant with reason and good sense that a proviso, being properly intended to limit the language of the legislature, will not be construed to intend by doubtful words to enlarge or extend the act or portion of an act to which it is attached and this appears to be the settled rule. Suth. St. Const. 297; In re Webb, 24 How. Pr. 247; U. S. v. Dickson, 15 Pet. 141; State v. Kelly, 34 N. J. Law, 75. It being settled beyond contravention that a legislative grant is to be construed strictly in favor of the state and against the grantee, it necessarily follows that nothing will pass against the state by implication. Charles River Bridge v. Warren Bridge, 11 Pet. 420; Rice v. Railroad Co., 1 Black,

358; Ruggles v. Illinois, 108 U. S. 536, 2 Sup. Ct. Rep. 832; Gaines v. Coates, 51 Miss. 335; State v. Southern Pac. R. Co., 24 Tex. 80. It is presumed always that the lawmakers have a definite purpose in every act. We must presume here that the mortgage act of 1871 was passed with a full understanding of the provisions and legal effect of the act of 1866; and that when congress proceeded to pass the act of 1886, forfeiting the unearned lands, but "having due regard for the rights of the grantee," it was familiar with both the prior acts and legislated knowingly. A part of one of these acts must be construed with reference to the others upon the same subject. If inconsistent, we must attempt to harmonize; if the wording is unambiguous, and the meaning clear, we would not be at liberty to put a construction upon it evidently foreign to the intent of the lawmakers, no matter what we thought of the justice of it; but, if there is ambiguity and uncertainty, to arrive at the intent we must construe the whole act and that to which it refers together, and are at liberty, certainly, to take into consideration all other acts upon the same subject. It has been well said that the general intent of the statute is the key to the meaning of the parts, and it is the established rule that the intention of the whole act will control the construction of the parts. 1 Kent, Com. 461; Ogden v. Strong, 2 Paine, 584; Green v. State, 59 Md. 123; Railroad Co. v. Alexandria, 17 Gratt. 176; Burke v. Monroe Co., 77 Ill. 610; Stone v. Mayor, etc., 1 C. P. Div. 691; Jennings v. Love, 24 Miss. 249; Garby v. Harris, 7 Exch. 591; Reiche v. Smythe, 13 Wall. 162; Williams v. McDonald, 3 Pin. 331. Power was reserved to congress by sections 9 and 20 of the Act of 1866 to forfeit the grant, or the unearned portion of the same, upon breach. The mortgage act of 1871 was declarative of the right to mortgage the property of the company, including the lands, and also, apparently, in the

nature of an assurance that no advantage would be taken of the breach already suffered. The act of 1886, forfeiting the unearned grant, was valid and constitutional. Judgment below affirmed.

FREEMAN, J., concurs.

LEE, J. (dissenting).—This is an action of ejectment, brought by the plaintiff in error to recover possession of one hundred and twenty acres of land situate in San Miguel county, New Mexico. The plaintiff claimed title under an act of congress of July 27, 1866, granting lands to the Atlantic & Pacific Railroad Company, against which the defendant relied on the United States patent issued December 10, 1891. The case was tried to a jury, which, under the direction of the court, returned a verdict of not guilty, and judgment was accordingly rendered thereon in favor of the defendant. Plaintiff sued out a writ of error to this court. He has assigned as error the rulings of the district court admitting in evidence defendant's patent, refusing to direct the jury to find for plaintiff, refusing the instructions requested by plaintiff, and directing the jury to find for defendant. These various rulings are brought before this court for review by exceptions properly taken. It appears from an examination of the record that they all raise substantially the same question, and therefore it will not be necessary for us to consider and pass upon them separately. There is no conflict in the testimony as to the facts upon which the rights of the parties depend. The facts appear to be undisputed, and, so far as they are deemed material to a decision of the case, are as follows:

The Atlantic & Pacific Railroad Company is a corporation, created by act of congress, approved July 27, 1866, the essential provisions of which are as follows: "Be it enacted," etc.: "Section 1. That John Brown, John C. Fremont,

and

all such other persons who shall or may be associated with them, and their successors, are hereby created and erected into a body corporate and politic, in deed and in law, by the name, style, and title of the Atlantic & Pacific Railroad Company, and by that name shall have perpetual succession, and shall be able to sue, plead and be impleaded, defend and be defended, in all courts of law and equity within the United States, and may make and have a common seal. And said corporation is hereby authorized and empowered to lay out, locate, construct, furnish, maintain and enjoy, a continuous railroad and telegraph line, with the appurtenances, namely: Beginning at or near the town of Springfield, in the state of Missouri, thence to the western boundary line of said state, and thence by the most eligible railroad route as shall be determined by said company, to a point on the Canadian River, thence to the town of Albuquerque, on the River del Norte, and thence, by way of the Agua Frio, or other suitable pass, to the head waters of the Colorado Chiquito, and thence, along the thirty-fifth parallel of latitude, as near as may be found most suitable for a railway route to the Colorado river, at such point as may be selected by said company for crossing; thence by the most practicable and eligible route, to the Pacific. The said company shall have the right to construct a branch from the point at which the road strikes the Canadian river eastwardly, along the most suitable route as selected, to a point in the western boundary line of Arkansas, at or near the town of Van Buren. And the said company is hereby vested with all the powers, privileges and immunities necessary to carry into effect the purposes of this act, as herein set forth. The capital stock of said company shall consist of one million shares of one hundred dollars each, which shall in all respects be deemed personal property, and shall be transferable in such manner as the laws of said cor