Opinion of the court.

prove its corporate existence, it has been many times decided that a plea of the general issue admits its capacity to sue, as does going to trial upon the merits.* And such is the established practice in the Court of Claims.t

We do not, however, rest our decision upon this ground. We prefer answering the question which the appellants attempt to raise. No doubt the legislature of Georgia in 1861 and 1863, when the enactments were made for the incorporation of these plaintiffs, was not the legitimate legislature of the State. The State had thrown off its connection with the United States, and the members of the legislature had repudiated, or had not taken, the oath by which the third section of the sixth article of the Constitution requires the members of the several State legislatures to be bound. But it does not follow from this that it was not a legislature, the acts of which were of force when they were made, and are in force now. If not a legislature of the State de jure, it was at least a legislature de facto. It was the only lawmaking body which had any existence. Its members acted under color of office, by an election, though not qualified. according to the requirements of the Constitution of the United States. Now, while it must be held that all their acts in hostility to that Constitution, or to the Union of which the State was an inseparable member, have no validity, no good reason can be assigned why all their other enactments, not forbidden by the Constitution, should not have the force which the law generally accords to the action of de facto public officers. What that is was well stated by Kent in the second volume of his Commentaries. "In the case of public officers," he says, "who are such 'de facto,' acting under the color of office by an election or appointment not strictly legal, or without having qualified them

* Lehigh Bridge Company v. The Lehigh Coal and Navigation Company, 4 Rawle, 9; Sutton v. Cole, 3 Pickering, 245; Conard v. The Atlantic Insurance Co., 1 Peters, 450; The Society for the Propagation of the Gospel D. The Town of Pawlet, 4 Id. 501.

+ Hebrew Congregation v. The United States, 6 Court of Claim Reports,

244.

✰ Page 295..

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selves by the requisite tests, or by holding over after the time prescribed for a new appointment, as in the case of sheriff's, constables, &c., their acts are held valid as it respects the right of third persons who have an interest in them, and as concerns the public, in order to prevent the failure of justice." And thus this court has ruled in regard to the legislatures of the insurgent States in several cases which have come up for our decision. In Texas v. White and Chiles, Chief Justice Chase in delivering the opinion of the court (while declining to attempt any exact definition within which the acts of an insurgent State government must be treated as valid or invalid), remarked: "It may be said, perhaps with sufficient accuracy, that acts necessary to peace and good order among citizens, such, for example, as acts sanctioning and protecting marriage and the domestic relations, governing the course of descents, regulating the conveyance and transfers of property, real and personal, providing remedies for injuries to person and estate, and other similar acts which would be valid, if emanating from a lawful gov ernment, must be regarded, in general, as valid when proceeding from an actual, though unlawful government; and that acts in furtherance, or in support of the rebellion against the United States, or intended to defeat the just rights of citizens, and other acts of like nature, must in general be regarded as invalid and void." This language was intended only as an outline, but it sufficiently indicates where is the line between valid and invalid acts of the legislatures of the insurgent States. Similar opinions were expressed in Sprott v. The United States, a case decided at this term.f There, when speaking of the powers of the insurgent States, our language was, "It is only when in the use of these powers substantial aid and comfort was given, or intended to be given to the rebellion, when the functions necessarily reposed in the State for the maintenance of civil society were perverted to the manifest and intentional aid of treason against the government of the Union, that their acts are

* 7 Wallace, 700.

† 20 Id. 459.

Opinion of the court.

void." And with equal distinctness was it said in Horn v. Lockhart,* “We admit that the acts of the several States (in insurrection)" in their individual capacities, and of their different departments of government, executive, judicial, and legislative, during the war, so far as they did not impair, or tend to impair the supremacy of the National authority, or the just rights of citizens under the Constitution, are, in general, to be treated as valid and binding. The existence of a state of insurrection and war did not loosen the bonds of society, or do away with civil government, or the regular administration of the laws. . . . No one that we are aware of seriously questions the validity of judicial or legislative acts in the insurrectionary States, touching these and kindred subjects, when they were not hostile in their purpose or mode of enforcement to the authority of the National governmeut, and did not impair the rights of citizens under the Constitution." After these emphatic utterances controversy upon this subject should cease. All the enactments of the de facto legislatures in the insurrectionary States during the war, which were not hostile to the Union, or to the authority of the General government, and which were not in conflict with the Constitution of the United States, or of the States, have the same validity as if they had been enactments of legitimate legislatures. Any other doctrine than this would work great and unnecessary hardship upon the people of those States, without any corresponding benefit to the citizens of other States, and without any advantage to the National government.

Tried by the rule thus stated, the enactments by which the plaintiff's in these cases were incorporated must be treated as valid. They had no relation to anything else than the domestic concerns of the State. Neither in their apparent purpose, nor in their operation were they hostile to the Union, or in conflict with the Constitution. They were mere ordinary legislation, such as might have been had there been no war, or no attempted secession; such as is of

* 17 Wallace, 580.

Opinion of the court.

yearly occurrence in all the States of the Union. We hold, therefore, that the Court of Claims correctly decided that the plaintiffs were lawfully incorporated, and that they had a legal capacity to sue in that court.

It remains only to notice one other position taken by the appellants during the argument. It is that even if the plaintiffs below are corporations which this court can recognize as such, they cannot sue in the Court of Claims for the proceeds of the sale of captured and abandoned property because, as it is argued, the Captured and Abandoned Property Act provides only for suits by persons who could have given aid and comfort to the rebellion. It is said, corporations were incapable of giving such aid, and that they cannot make proof that they have never given it. Nothing in the assignments of error justifies the presentation of such an argument. But were it otherwise, the argument would be plainly unsound. The act of Congress confers the right to sue upon any person claiming to have been the owner of the captured or abandoned property. It makes no distinction between natural and artificial persons, and it has not been doubted that corporations created before the war commenced might sue. Many such actions have been sustained. It is no objection to them that plaintiffs in all suits are required to make proof that they have never given aid and comfort to the rebellion. Such proof may be made as well by artificial as natural persons. Corporations may have rendered very substantial aid to the armed resistance to the laws of the United States. They may have made loans or contributions to the Confederate government. They may even have fitted out companies or regiments of soldiers. If they have rendered no aid, the fact is quite capable of proof.

JUDGMENTS AFFIRMED.

Mr. Justice BRADLEY did not sit in this case.

Statement of the case.

MARYLAND v. RAILROAD COMPANY.

1. Although since the legal tender acts, an undertaking to pay in gold may be implied, and be as obligatory as if made in express words, yet the implication must be found in the language of the contract, and cannot be gathered from the mere expectations of the parties.

2. A reference to what are called "surrounding circumstances," is allowed for the purpose of ascertaining the subject-matter of a contract, or for an explanation of the terms used, not for the purpose of adding a new and distinct undertaking.

3. An implication that a railroad company having an unfinished road in which the State was largely interested should pay gold instead of currency to the State which has lent to the company sterling bonds of the State, of which the interest was payable abroad, and, of course, in coin, is not inferable from the fact that unless the contract between the company and the State be so interpreted, the State has not exacted from the company all that was necessary to its own complete indemnification ; this being especially true in the case of a contract, where, in other parts, a complete indemnification was specifically and carefully provided for, and in one where at the time it was made there was no difference, existing or anticipated, in the value of currency and coin, and the difference having been brought about by events supervening long afterwards.

ERROR to the Supreme Court of Maryland; the case being thus:

In the year 1826 the State of Maryland incorporated the company now well known as the Baltimore and Ohio Railroad Company, for the purpose of making a railroad from Baltimore to the Ohio River. The capital was $3,000,000; and the State took one-sixth of it, or $500,000. The company was, however, not able to make the road with the $3,000,000 capital thus originally subscribed; and in 1836 the legislature of the State passed an act "for the promotion of internal improvements, &c.," meant to assist the completion of the road.

By the first section the State authorized its treasurer to subscribe $3,000,000, in instalments, to the capital of the road, on certain conditions.

Its ninth section was as follows:

"Before any subscriptions shall be made by virtue of this act,