2. The false warranty here did not consist alone in the answer given to question 5, as to the applicant's temperate habits, but in the further facts, that after the answer "Yes," had been written, and was deliberately affirmed in the answer to question 16, the paper containing it was delivered back by the Company's agent to Dillard, who kept it several hours, and then handed it back to the agent, with his signature subscribed to it, and also to the declaration subjoined to it, to be sent to the Company for its action; which declaration contained a positive reference to the answers as written in the paper, and a distinct re-affirmation of their truth and correctness. 1. That was a case of misrepresentation. Among the questions propounded to Dillard This is one of warranty. The distinction is es- and answered in the proposals for insurance, sential. A misrepresentation is not introduced was the following: "Is the party temperate and into the policy and is not incorporated in the regular in his habits?" To which the answer contract. But a warranty becomes such, by be- "Yes" was appended. This was question and ing referred to in the policy as the basis on answer No. 5. Question No. 16 was: "Is the which it is issued (Ang. Ins., 196, § 147, a; applicant aware that any untrue or fraudulent Arn. Ins., 499), and a warranty is absolute ac- answer to the above queries, or any supprescording to its terms. Bliss, Ins., § 63. sions of facts in regard to health, habits or circumstances will vitiate the policy?" To which the answer "Yes" was also appended. None of the answers were written by Dillard, though he signed his name at the foot of them all. They were written by Yeiser, the agent of the Company, and as he testified, read over to Dillard, who then signed them and immediately afterwards signed a declaration filled up by the agent which was, in effect, an agreement that if the said proposals, answers and declarations returned to the Company should be found fraudulent or untrue in any respect, or if there should be any willful misrepresentation or concealment in the said declaration, the policy should be void. All this was introduced by the defendant, and after its introduction the plaintiffs were permitted against the objection of the defenuants to call a witness and prove by him that he was present when Yeiser propounded question No. 5 to Dillard, and that Dillard's answer was not "Yes," but "I never refuse to take a drink," or "I always take my drinks," and that the answer "Yes" was improperly written down without the knowledge or consent of Dillard. The reception of this testimony constitutes the basis of the first assign It is no answer to this to say that the answer "Yes" was untruly written by Yeiser, and was not really the answer given by Dillard, and that the Company is bound by the wrong ful act of its agent. For, although it be conceded to have been incorrectly written by the agent, yet all the subsequent acts of Dillard above mentioned render that immaterial, and bind him to an adoption of the answer, as the warranty on which the policy was issued by the Company. None of these acts of subsequent reaffirmance appear in the case in 13 Wall. (supra), and that case and those there cited are not in point, under the facts of this case. But it is held that, although the knowledge of the insurer relieves against the effect of a false representation, it does not relieve against a false warranty. Per Strong, J., in State Mut. Ins. Co. v. Arthur, 30 Pa., 315. It is well settled, that if the applicant knows that the facts are incorrectly stated in an application made out by a company's agent the company is not liable, for he is a party to the fraud upon it. Smith v. Ins. Co., 24 Pa., 320; Vose v. Eagle Life and Health Ins. Co. supra; Smith v. Empire Ins. Co., 25 Barb., 497; Wilson v. Conway Ins. Co., 4 R. I., 141; Plumb v. Cattaraugus Mut. Ins. Co., 18 N. Y. 392. Now, these subsequent acts constitute the controlling features of this contract, and fix its character as a warranty of the truth of the answer 5, as written down, which is conceded to have been false, and which, therefore, according to the stipulation of the policy, rendered it void. Messrs. Carlisle & McPherson and W. T. Withers, for defendants in error. Mr. Justice Strong delivered the opinion of the court: The general nature of the defense to this action in the circuit court was, that the policy had been issued on the faith of false and fraudulent representations made by Dillard, whose life was insured, and that those representations were, by the express agreement of the parties declared to be warranties. ment of error. That there is no substantial reason for com plaining of the ruling of the court in this particular is, we think, fully shown by what was decided in Ins. Co. v. Wilkinson, 13 Wall., 222, 20 L. ed. 617, and in the cases therein mentioned. The testimony was admitted, not to contradict the written warranty, but to show that it was not the warranty of Dillard, though signed by him. Prepared, as it was by the Company's agent, and the answer to No. 5 having been made, as the witness proved, by the agent, the proposals, both questions and answers, must be regarded as the act of the Company, which they cannot be permitted to set up as a warranty by the assured. And this is especially so when, as in this case, true answers were in fact made by the applicant (if [*156 the witness is to be believed), and the agent substituted for them others, now alleged to be untrue, thus misrepresenting the applicant as well as deceiving his own principals. Nor do we think it makes any difference that the answers as written by the agent were subsequently read to Dillard and signed by him. Having himself answered truly, and Yeiser having undertaken to prepare and forward the proposals, Dillard had a right to assume that the answers he did make were accepted as meaning, for the purpose of obtaining a policy, what Yeiser stated them in writing to be. The acts and declarations of Yeiser are to be considered the acts and declarations of the Company whose agent he was, and Dillard was justified in so understanding them. The transaction, therefore, was substantially this: The Company asked Dillard, "Are you temperate and regular in your habits?" To which he answered, "I never refuse to take a drink," or, "I always when the agent was not a party to those occurrences. We have so recently discussed this subject in Packet Co. v. Clough, ante, 406, that it is needless to say more. For the error in receiving this evidence the judgment must be reversed. The judgment is reversed, and a new trial is ordered. take my drinks." To this the Company re- | sion of his principals; and this is doubly true plied, in effect, "We understand your answer to mean the same, in your application for a policy, as if you had answered 'yes,' and we accept it as such, and write 'yes' in the proposals." Then, upon being asked whether he warranted the truth of his answers, he returned the reply, "Since you so understand my answers, I do." Surely, after such a transaction, the Company cannot be permitted to say that the applicant is bound by what was written in the proposals for insurance as his THE ERIE RAILWAY COMPANY, Piff. in warranty. And that such was the transaction, the evidence received by the court tended to prove. The first assignment of error therefore, cannot be sustained. Nor can the sixth, which is to the charge of the court, and which presents substantially the same question as that raised by the first. The second assignment complains of the exclusion of certain testimony of Dr. Alexander, a medical witness. He was offered to prove that, as the medical examiner of another insurance company, he had examined Dillard in June, 1870, and had given his opinion in writing to that Company that Dillard was not worthy of insurance. This offer the court overruled, and we cannot see why the evidence should have been received. The unfitness of Dillard for insurance in June, 1870, surely could not be proved by the fact that the witness had then expressed an opinion that he was unfit. And. besides, such an opinion had no pertinency to any of the issues joined between the parties. 157*] *The witness was also asked whether he was acquainted with the condition and state of health of Dillard in June, 1870; and, if so, what it was, and the nature of his disease or malady, if any; and to this question, also, the court refused to permit an answer. The policy on which the suit was brought was made on the 30th day of August, 1870. Had the question addressed to the witness related to a time subsequent to the issuance of the policy, the answer to it should have been received, for one of the issues on trial was whether Dillard, "After the execution of the policy, became so far intemperate as to impair his health." But there was no issue in regard to his health prior to the insurance and, therefore, the evidence of fered was rightly rejected. THE Err., v. COMMONWEALTH OF PENNSYL VANIA. (See S. C., 21 Wall., 492-500.) Erie Railway Company-construction of statute-state tax does not impair contract. 1. The decision of the Supreme Court of Pennsylvania that the Erie Railway Company was doing business in that State in the sense of the State Act of May, 1868, being a construction of a state statute by the Supreme Court of the State, involving no question under the laws or Constitution of the United States, is conclusive upon this court. 2. Such construction of the state statute approved by this court. 3. Such Company is doing business in Pennsylwithin that State, and is liable to the tax imposed vania, although only forty-two miles of its road lie by that Act. 4. The State having the power to impose the tax, judgment and discretion of the State only. It is bethe extent to which it is imposed belongs to the yond the examination of this court. 5. The Act of 1868 does not impair any obligaErie Railway Company. By the severa ACIS tion of the State not to impose such a tax upon the lation to that Company, there is no release of any power to tax, possessed by the State. [No. 548.] Argued Jan. 19, 1875. Decided Feb. 15, 1875. I N ERROR to the Supreme Court of the Com. monwealth of Pennsylvania. The case is fully stated by the court. Messrs. W. W. MacFarland, and J. W. Simonton, for plaintiff in error: In the case of The U. S. v. Bassett, 2 Story, 389, which case involved the construction of a statute, Judge Story in his opinion uses the following language, which will be found very pertinent to the present inquiry: On the fourth and fifth assignments, it is suf"The interpretation must, in itself, be reasonficient to say that we do not perceive they ex-able; it must not be such as apparently was not hibit any error. or could not be within the legislative intendA fortiori such an interpretation is not to be adopted to give effect to particular words which will require, on the part of the court, the introduction of new provisions and auxiliary clauses, which the statute neither points out nor even hints at, and yet which are indispensable to make such interpretation sensible or practicable." In Bond v. Jay, 7 Cranch, 353, Chief Justice Marshall says: The third assignment is of more importance.ment. The plaintiffs were allowed in the cross-examination of one of the defendants' witnesses to ask whether one Dearing, the general traveling agent and supervisor of the defendants in the Southern States, did not, some time after the death of Dillard, and after he had made an examination of the claim of the plaintiffs, express an opinion that it should be paid. To this question the witness replied that Dearing had expressed his opinion that it would be best for "It is so unusual for a Legislature to emthe defendants to accept the situation and pay ploy itself with framing rules which are to opthe amount of the policy. That such an opin-erate only on contracts made without their juion allowed to go to the jury must have been risdiction, between persons residing without very hurtful to the defendant's case is manifest, and that it was inadmissible is equally clear. The opinion of an agent, based upon past occurrences, is never to be received as an admis NOTE.-Review by U. S. Supreme Court of decision of state court construing state_statute-see notes, 62 L. R. A. 542; 63 L. R. A. 575. their jurisdiction, that courts can never be justified in putting such a construction on their words, if they admit of any other interpretation which is rational and not too much strained." In Farnum v. Blackstone Can. Corp., 1 Sumn., 46, Judge Story says: "Now, the general rule certainly is that every legislative Act ought to receive a reasonable construction, and it cannot be presumed that a Legislature authorizes any act to be done in a foreign territory when that act is beyond the reach of its proper jurisdiction or sovereignty. Every Legislature, however broad may be its enactments, is supposed to confine them to cases or persons within the reach of its sovereignty." Now, it is submitted: First. That the Act in question cannot be made applicable to the plaintiff Company, without such a construction "As will require, on the part of the court, the introduction of new provisions and auxiliary clauses, which the statute neither points out nor even hints at, and yet which are indispensable to make such interpretations sensible or practicable." Second. That it cannot be made applicable to the plaintiff Company, without assuming that the Legislature intended to embrace within its provisions, on a very extensive scale, persons and things entirely beyond the reach of its sovereignty. In the first place, then, the Act, by its very terms, applies to corporations only, which are so situated that the Legislature, in the exercise of a lawful jurisdiction, may impose a tax upon the entire capital stock of the Corporation, its entire net and gross receipts, and coerce the payment by an abrogation of its charter, if necsary. And on the other hand, it follows that it does not apply to corporations not so situated. The Erie Railway Company is a Corporation that cannot, by any possibility, be embraced in the former category; for, as a part of the price paid for its right of way, it is taxed upon a specified amount of its capital stock, represent ed by the cost of construction of that portion of the road lying in the State of Pennsylvania. This reason is sufficiently conclusive without the additional one, that the State of Pennsylvania cannot be presumed to have attempted to drag into its power, for the purpose of taxation, the whole of the entire capital stock of a corporation exercising a mere right of way over its territory, for an adequate equivalent agreed upon and paid, merely because it might suppose it had the power to compel compliance by a threatened confiscation of its property. In the second place, the mandatory provisions directed to the officers of the Corporation, as well as the nature of the penalty for noncompliance, makes it manifest that the statute was only intended to apply to corporations maintaining their chief officers and principal establishments in that State. In the third place, the very description of the corporations subjected to the tax, shows that only those are embraced, the business of which is conducted upon and over ways and works situate within the territory of the State. "No surrender of the general power of taxation by any legislative Act can be implied-it must be expressed." Providence Bank v. Billings, 4 Pet., 514; Easton Bank v. Commonwealth, 10 Pa., 442. To this list of authorities may be added, the case of The Delaware R. Tax, 18 Wall., 206, 21 L. ed. 888, where the rule referred to by the learned judge in support of his opinion is stated in as vigorous terms as the English language admits of. With great deference, however, it is submitted that the case at bar does not, in the remotest degree, involve the rule referred to in the cases cited, nor is there the slightest resemblance between the facts of this case and the facts in any of the cases cited. All those cases involve the question as to the power of the State for the purpose of taxation over corporations of its own creation, deriving their existence from the Government of the State, and exercising their respective functions within the territorial limits of the State. The plaintiff is not a Pennsylvania Corporation. It does not, in any proper sense, exist in the State of Pennsylvania, nor exercise its functions and franchises within the State of Pennsylvania. It owes none of its chartered rights or privileges to the State of Pennsylvania. It has a railroad track a few miles in length on the soil of the State of Pennsylvania, with the necessary appurtenances which it bought of private owners and paid for. Over this line of track it runs its trains on their way from west to east, and east to west. For the convenience of the citizens of the state of Pennsylvania, and those of its patrons having business in the State of Pennsylvania, it stops at points on this part of its track and takes up and puts down passengers and freight. Under these circumstances it so happened that the Erie Railway Company had occasion to ask the State of Pennsylvania for liberty to pass over a small strip of its territory, and to exercise the right of eminent domain to the extent necessary to acquire from private owners an easement for the required right of way, and the two parties, the State and the Corporation, entered into negotiations to this end. Now, instead of having to consider the grave question of public policy and constitutional law, involving the power of the State over its own natural and artificial persons for purposes of taxation, we have to construe a mere contract of barter, or bargain and sale, and find out what price the vendor exacted and agreed to take in full payment, and what price the vendee agreed to pay and has paid, and this is the view of the case originally taken by the Supreme Court of the State of Pennsylvania itself. In the case of The N. Y. & Erie R. Co. v. Sabin, 26 Pa., 244, the court thus defines the relations of the State to this Corporation: "We are of opinion that the annual tax of $10,000, annually imposed upon the Company by the 5th section of the Act, 22d March, 1846, was intended to compensate the Commonwealth for the right of way through her territory, and that the tax imposed by the 6th section of said Act upon that portion of the Company's stock which represents the cost of construction in Pennsylvania, was meant to be in lieu of all other taxation of the property of the Company within our borders." Messrs. Lyman D. Gilbert, and Samuel E. Dimmick, for defendant in error: The only subject presented for consideration | *gross receipts of every railroad, canal [*493 is this: Can the Erie Railway claim exemption from this character of taxation? For the question raised by the objection is not whether the Act of May 1, 1868, violates the Constitution and the laws of the United States; but whether the provisions of a statute of Pennsylvania are of sufficient scope and extent to apply to and include the Erie Railway company. Upon this subject, the construction of a state statute, where no infraction of the federal laws or Constitution is alleged or suggested, the jurisdiction of the courts of the Commonwealth is complete and conclusive, and their interpretation is not a proper object for examination and review even in this court. Randall v. Brigham, 7 Wall., 530, 19 L. ed. 285; Van Bokelen v. R. Co., 5 Blatchf., 379; Blossburgh R. Co. v. Tioga R. Co., 5 Blatchf., C. C., 387; Olcott v. Board of Fond du Lac Co., Am. L. T. Rep., 47; Gut v. State, 9 Wall., 35, 19 L. ed., 573; Williams v. Kirtland, 13 Wall., 306, 20 L. ed., 683; King v. Wilson, 1 Dill., 555; Rowan v. Runnels, 5 How., 134; Bank of U. S. v. Daniel, 12 Pet., 32; Satterlee v. Matthewson, 2 Pet., 380; Watson v. Mercer, 8 Pet., 88; Jackson v. Lamphire, 3 Pet., 280; Com. Bank of Cincinnati v. Buckingham, 5 How., 317; Christy v. Pridgeon, 4 Wall., 196, 18 L. ed., 322; Neal v. Green, 1 McLean, 18; Green v. Neal's Lessee, 6 Pet., 291; Dyke v. Kuhns, 5 Pitts. L. J., 239; Suydam v. Williamson, 24 How., 427, 16 L. ed., 742; Leffingwell v. Warren, 2 Black, 599, 17 L. ed., 261; Smith v. Houtz, 15 Pitts. L. J., 409. This court has never decided that a State parted with its power of taxation unless it used unmistakable words of surrender. New Jersey v. Wilson, 7 Cranch, 164; Gordon v. Appeal Tax Court, 3 How., 133; Achison v. Huddleson, 12 How., 293; Bank v. Knoop, 16 How., 369; Dodge v. Woolsey, 18 How., 331, 15 L. ed., 401; Bank v. Skelly, 1 Black, 436, 17 L. ed., 173); McGee v. Mathis, 4 Wall., 143, 18 L. ed., 314; Von Hoffman v. City of Quincy, 4 Wall., 535, 18 L. ed., 403; Home of Friendless v. Rouse, 8 Wall., 430, 19 L. ed., 495; Washington University v. Rouse, 8 Wall., 439, 19 L. ed., 498; Wilmington Railroad Co. v. Reid, 13 Wall., 264, 20 L. ed., 568; Tomlinson v. Branch, 15 Wall., 460, 21 L. ed., 189; Humphrey v. Pegues, 16 Wall, 244, 21 L. ed., 326. and transportation company liable to tax upon tonnage, under the preceding section of this Act. The companies, included in that "preceding section," were "Every railroad company, steamboat company, now or hereafter doing business in this State, and upon whose works freight may be transported, whether by such company or individuals." § 7. Under this section the accounting officers of the State have settled an account against the Erie Railway Company. From this settlement an appeal was taken in pursuance of the prac tice of that State, by the Company to the Dauphin County Court, where a verdict for the sum of $76,788.20 was rendered in favor of the State, which, upon an appeal to the Supreme Court of the State, was sustained. From this judgment of the Supreme Court a writ of error is brought to this court. It was decided by this court in Reading R. Co. v. Pennsylvania, 15 Wall., 284, 21 L. ed., 164, that a tax upon the gross receipts of a railroad company is within the power of the State to impose. Not struggling against the effect of this decision, the Erie Railroad Company still contends that the tax in question is not legal for two reasons: 1. That this Company was not intended by the Legislature to be embraced within the terms of the Act of 1868; and, 2, that the terms and conditions of former Acts of the Legislature have created an agreement with the Company that it shall be exempt from taxation, except to a limited extent and in a specified manner. First. The Erie Railroad Company was chartered by an act of the Legislature of the State of New York, April 24, 1832, with power to construct a railroad from the City of New York to Lake Erie, through the southern tier of counties of that State. By an act passed in 1846, they were authorized to locate that portion of their road in the State of Pennsylvania which now exists there. By subsequent foreclosure and legislation *the present Erie Railway [*494 Company was formed, with all the rights and authorities conferred upon the Erie Railroad Company. On the 16th of February, 1841, the Legislature of the State of Pennsylvania, by an Act in which it is recited that, for the purpose of avoiding certain engineering difficulties, it was The Act of 1846 nowhere declares that the desirable that the Erie Railroad Co. should be tax it imposes shall constitute the only kind located for a distance of about fifteen miles of taxation to which this Company shall be sub- through the County of Susquehanna in that ject, or be in lieu of all other taxation; and, State, enacted that the said road might be lotherefore, it does not prevent the Common-cated upon such route through said county, as wealth from passing a subsequent general law imposing a different character of taxation upon the Company. Mr. Justice Hunt delivered the opinion of the court: The question in this case is that of the right and intention of the State of Pennsylvania to impose a tax upon the gross receipts of the Erie Railway Company. In May, 1868, the Legislature of that State passed an Act by the 8th section of which there was imposed a tax of three fourths of one per cent, upon the the Company should find to be expedient. The Company was authorized to enter upon and take the lands of individuals; also gravel, stone or wood, for the purpose of constructing the road: paying for the same if the amount was agreed upon; if not, to be ascertained by an appraisement of the damages, as in the Act is prescribed. By the second Act of the date of March 26, 1846, authority was further given to this Com. pany to construct its road through the County of Pike, for a distance not exceeding thirty miles, with the same general powers and under the same general restrictions. It was further provided that the Company should cause to be prepared and filed in the office of the Auditor-General of the State, a verified statement of the expense of constructing that portion of the road lying within the State of Pennsylvania, and that the Company should annually pay into the State Treasury the sum of 10,000. The last section of the Act provided that the stock of the said Company, to an amount equal to the costs of the construction of that part of the road situate in Pennsylvania, should be subject to taxation in the same manner and at the same rate as other similar property is or may be subject. It can scarcely be doubted that this Company is doing business in the State of Pennsylvania when it receives gross earnings to an amount exceeding $9,000,000 per annum for transportation over its road, of which 42 miles lie within that State. The statute does not limit the amount of business done, or the length of the road upon which it is done, as fixing its liaIt is one of the agreements of the case that bility to taxation. The legal effect of the apthe whole length of the Erie Railroad is 455 pellant's argument would be the same if 413 miles, 422 miles of which is in the State of miles of its road were within the lim- [*498 Pennsylvania, in Pike and Susquehanna coun-its of the State of Pennsylvania and 42 miles only were in the State of New York, instead of lying as it now does. ties. The gross receipts of the Company upon its main line (of which this 421⁄2 miles is a part), We see no such difficulty in the machinery in the year 1869, were $9,266,349.33. Of this for the collection of the tax as should make us sum forty-two and one half four hundred and doubt the intention of the Legislature. That, fifty fifths, viz.: $884,988.38 was adjudged to in fact, the State at once proceeded to, and has be the portion taxable in Pennsylvania under constantly persisted in, its exercise, affords the statute imposing the tax in question. Upon strong evidence of its intention and of its unthis sum three fourths of one per cent. was im-derstanding of its effect. posed as a tax, and in this manner the sum of the tax for several years, with interest and expenses, was made up. If it intended to impose the tax, and had the power to do it, the extent and the proportion to which it is carried belongs to the judgment and It is argued that the Legislature did not in-discretion of the State only. It is beyond our tend to bring this road within the tax provis- examination. ions of the Act of 1868, because the Company is not doing business in that State in the sense intended in the Act, but is as to nearly all the freight from the transportation of which the gross receipts accrue, merely using the right of way through a small portion of the territory of Pennsylvania, which it purchased from and pays for to said State. It is argued further from the details, and machinery of the Act, that it cannot be made applicable to this case without requiring, on the part of the court, the introduction of new clauses and provisions which the Legislature have not seen fit to introduce and which clauses and provisions it is said are beyond its power to introduce. In relation to the first branch of the objection, that the Erie Company is not doing business in the State in the sense intended by the Act, the answer is twofold: First. The Supreme Court of that State has held that this "Company was doing business in State Tax on Ry. Gross Receipts, 15 Wall., 296, 21 L. ed., 169; Minot v. R. Co., 18 Wall., 206, 21 L. ed. 888. That it has the power to enforce the tax by direct action upon that part of the road within its territory would seem to be reasonably certain, and that it would attempt to lay taxation to an extravagant or oppressive extent has not yet appeared. That it has exercised less than the full extent of its power, and has apportioned the tax according to the length of the road within the State, is not a just subject of complaint by the Company. The second objection is that the Act of 1868 impairs the obligation of the State not to impose such a tax upon the Erie Company. It has been held many times in this court that a State may make a valid contract that a corporation or its property within its territory shall be. exempt from taxation, or shall be subject to a limited and specified taxation. the State in the sense of that Act." This con- N. J. v. Wilson, 7 Cranch, 164; Gordon v. struction of a state statute by the Supreme App. T. C., 3 How., 133; Achison v. HuddleCourt of the State, involving no question under son, 12 How., 293; Bk. v. Knoop, 16 How., 369: the laws or Constitution of the United States, Dodge v. Woolsey, 18 How., 331, 15 L. ed. 401; is conclusive upon us. We accept the construc- Bk. v. Skelly, 1 Black, 436, 17 L. ed. 173; Metion of state statutes by the state courts, al- Gee v. Mathis, 4 Wall., 143, 17 L. ed. 314; Von though we may doubt the correctness of such Hoffman v. Quincy, 4 Wall., 535, 18 L. ed. 403; construction. We accept and adopt it, although Home of Friendless v. Rouse, 8 Wall., 430, 19 we may have already accepted and adopted a L. ed. 495; University v. Rouse, 8 Wall., 439, different construction of a similar statute of 19 L. ed. 498; R. Co. v. Reid, 13 Wall., 264, another State, in deference to the Supreme 20 L. ed. 568; Tomlinson v. Branch, 15 Wall., Court of that State. Randall v. Brigham, 7460, 21 L. ed. 189; Humphrey v. Pegues, 16 Wall., 530, 19 L. ed. 285; Williams v. Kirt- Wall., 244, 21 L. ed. 326. land, 13 Wall., 306, 20 L. ed. 683; Tioga R. R. The court has, however, in the most emphatCo. v. Blossburg R. Co., ante, 331. ic terms, and *on every occasion, de- [*499 Second. We are of the opinion that the Su-clared that the language in which the surrender preme Court of Pennsylvania was right in its construction of the Statute of 1868. is made must be clear and unmistakable. The covenant or enactment must distinctly express |