Alvey, J.,
delivered the opinion of the Court.
This action has been brought by the State to recover of the defendant, the Baltimore and Ohio Railroad Company, a large sum of money claimed to be due on account, and payable in gold, growing out of the State’s subscription to the stock of, or loan to the Company, of three millions of dollars, under the Act of 1835, ch. 395, entitled, “An Act for the Promotion of Internal Improvements,” better known as the “Eight Million Loan Bill,” passed on the 4th of June, 1836.
The defendant was incorporated by the Act of the Legislature of this State, at the December Session, 1826, ch. 123, for the purpose of constructing a railroad from the City of Baltimore to the Ohio river, with a capital stock of three millions of dollars, in shares of one hundred dollars each, with power to the company to increase its capital stock [532]*532from time to time, as it should be found necessary, in the progress of the work. Of this capital stock, the State reserved to itself the right to subscribe for ten thousand shares, being the one-third of the entire original stock of the company. To the city of Baltimore was also reserved the right to subscribe for five thousand shares — thus reserving to the State and the city the right to take one-half of the original capital stock. The State, however, authorized by Act of 1827, ch. 104, a subscription but for five thousand shares; and the city of Baltimore having subscribed for the five thousand shares reserved to it, the State and the city each became entitled to two directors in the company, to represent the stock so subscribed, according to the provisions of the Act of incorporation.
In the meantime, between these subscriptions and the passage of the “Eight Million Loan Bill,” the Legislature of the State, by the Act of 1830, ch. 158, had authorized the defendant to embark in the enterprize of making a branch road, to afford easy communication between the city of Baltimore and the city of Washington, in the District of Columbia. The stock of this branch road was required to be kept separate and distinct from that of the main road; and of the stock necessary to construct and equip this branch road, the defendant was authorized to subscribe for all such portion of it as might not be subscribed for by other parties; and to borrow money, from time to time, to enable it to pay such subscription, and to pledge all its property and funds as a security for the payment of the money so borrowed. The Stale authorized a subscription of a half a million of dollars to such branch stock, which was made, and thereupon became entitled to two additional directors in- the company. (Act 1832, ch. 175.)
By the Act of 1835, ch. 127, passed February 25th, 1836, the city of Baltimore was authorised to make a further subscription of three millions of dollars, in áddition to its former subscription, to the capital stock of the defendant, and which [533]*533was made under resolution of the Mayor and City Council, 3STo. 40, dated the 17th of March, 1836; and for every five thousand shares of this last subscription, the city became entitled to an additional director.
Thus it appears that the State and the city of Baltimore, had become largely and most materially interested in the prosecution and completion of the works of the company; as upon their completion and success depended the only chances of reimbursement and profit to either the State or the city, for their large outlay of capital, to say nothing of the large amount of individual subscription that had been made by the people of the State to the stock of the company. Indeed, it was regarded as of the greatest importance, in a commercial point of view, looking to the interest of the entire State, and especially to the city of Baltimore, that the completion of the road to its destined point on the Ohio river, should be assured beyond all peradventure.
Such then, was the relation of the State and of the city of Baltimore to this railroad company, and their great interest in the completion of its works, when, at the time of the passage of the Act of 1835, ch. 395, it was found to be necessary to extend the aid of the State to this and other internal improvement companies of the State.
By the 1st section of the Act just referred to, it was provided, that upon the assent and agreement to the several provisions of the Act, by the Chesapeake and Ohio Canal Company, and the Baltimore and Ohio Railroad Company, respectively, the Treasurer of the State should “ subscribe to the capital stock of each of said corporations the sum of three millions of dollars, and pay for the same in the manner and upon the conditions thereinafter mentioned.” As one of the conditions upon which the subscription to the stock of the defendant was authorized, it was required that a majority of the State’s directors in the company should certify under oath, that, in their opinion and judgment, such subscription by the State would, in addition to all other subscriptions, be sufficient [534]*534to complete the road to the Ohio river. It was farther provided, that the State should have an additional director in the company for every five thousand shares of stock subscribed for under the Act.
The 9th section of the Act contains the provisions more immediately involved in this controversy, and, so far as they relate to the railroad company, are as follow: “ That before any subscription shall be made to the capital stock of the said Baltimore and Ohio Railroad Company, under and by virtue of this Act, the stockholders of said company shall, in general meeting assembled, stipulate, agree and bind the said company by a proper instrument of writing, signed by the president and under the corporate seal thereof, to be lodged with the Treasurer of the Western Shore, to guarantee to the State of Maryland, after the expiration of three years from the payment by the State of each of the instalments on the stock hereby authorized to be made to the stock, of said company, the payment from that time, out of the profits of the work, of six per centum per annum, payable semi-annually, on the amount of money which shall be paid to the said company under and by virtue of this Act, until the clear annual profits of the said railroad shall be more than sufficient to discharge the interest, which it shall be liable so to pay to the State of Maryland, and shall be adequate to a dividend of six per centum per annum among its stockholders;' and thereafter the State shall, in reference to the stock so subscribed for, and on so much thereof as the State may hold, be entitled to have and receive a perpetual dividend of six pet' centum per annum, out of the profits of the work, as declared from time to time, and no more, and all and so much of such annual profits as shall exceed six per centum, shall be distributed to the other stockholders according to their several interests in said company; and in consideration of the interest so to be secured to the State, th said Baltimore and Ohio Railroad Company shall be, and they are hereby authorized, in addition to the charge now authorized to be made by said company for the transportation [535]*535of passengers, to increase the price or charge for such transportation, to any amount not exceeding one cent per mile, for each person passing on said road.” The guarantee required by this section was given by the company and accepted by the State.
The Act then provides, in subsequent sections, for the appointment of Commissioners to proceed to Europe to negotiate loans, and for the issue of the bonds or certificates of stock of the State, to raise money for and on behalf of the State, to gratify the purposes of the Act. The certificates of stock or bonds of the State were to be issued, in the aggregate amount not to exceed $8,000,000, redeemable at the pleasure of the State, after the expiration of fifty years from their date, and to bear interest at the rate of six per centum per annum, payable quarterly, either at the loan office in the city of Baltimore, or at some place in Europe, as might be arranged by contract. The certificates or bonds were not, however, to be sold at any rate or price which would yield to the State less than twenty per cent, net, above par. Of this premium, whatever part of it not required to pay the interest on the loan for three years after its negotiation, was, with its increment, directed to be invested, to constitute a sinking fund for the ultimate redemption of the debt incurred.
These bonds or certificates were issued by the State, but the Commissioners sent to Europe to negotiate the loan failed to negotiate it on the terms prescribed by the Act. After such failure to negotiate the loan by the Commissioners, they sold to the defendant, and to the Chesapeake and Ohio Canal Company, each, bonds amounting to $3,000,000. This disposition of the bonds by the Commissioners seems to have been regarded as without warrant of authority; but the State, by resolution of the Legislature, (Resolutions of 1837, bio. 26,) ratified and adopted the contracts of sale, and declared the State’s subscription to the stock binding, but declared at the same time that the bonds were to be rated to the companies at $120 for each hundred dollars of the bonds.
[536]*536These six per cent, bonds, rated, as they had been by the State, at $ 120, appear to have been unsaleable by the companies to which they had been sold. In this state of things the State made further effort to facilitate these' two companies in realizing money on its credit, and thus to aid and promote the accomplishment of what had been constantly in view from the beginning — the completion of its great works of internal improvements. To this end the Act of 1838, chap. 386, was passed. That Act is entitled, “An Act to provide ways and means to meet the subscriptions on the part of the State to works of internal improvements.” By its 1st section, it provided, that upon the State being released by the railroad and canal companies from the contracts for the sale and purchase of the bonds issued under the Act of 1835, and the surrender of such bonds, the Commissioner of Loans should be authorized to deliver to the two companies, respectively, “ an amount of sterling bonds or certificates of stock, to be redeemable in London at the pleasure of the State, at any time after fifty years from the date thereof, and to bear an interest of five per cent, per annum, payable semi-annually in Londpn, on the first day of January and July in each and every year, equivalent to the amount of bonds or certificates of stock delivered up by the said companies respectively as aforesaid; and in thus changing the bonds or certificates of stock already issued under the Act aforesaid, for the bonds or certificates of stock hereby created, the said Commissioner of Loans shall give to the said companies respectively, in the proportion of three thousand two hundred dollars of the bonds or certificates of stock hereby created for every three thousand dollars of the bonds or certificates of stock so to be delivered up; provided, however, that the said companies respectively shall secure by mortgage, or other lien, on all the property and revenues of said companies respectively, to the satisfaction of the Treasurer, the payment of the interest, at the rate of five per centum per annum, on the stock created by this Act, semi-annually, at least ninety days before the [537]*537first day of January and July in every year, for the term of three years from the date of the bonds or certificates of stock, together with the cost of transmitting said interest to London to be there paid, and also the difference in the exchange of currency between London and the city of Baltimore.” None of the State’s liens and priorities then existing were to be in any way impaired or affected by any of the provisions of the Act. The only changes, therefore, effected by this Act of 1838, were the substitution of the five per cent, sterling securities for the six per cent, securities issued under the Act of. 1835, and the requirement of security, by way of mortgage or other lien, or the retention of bonds, for the payment of interest for the first three years, instead of the twenty per cent, premium at which the bonds issued under the Act of 1835 were required to be sold, and which was supposed at the time to be sufficient to pay the interest for the first three years after the negotiation of the loan under the last named Act. In all other respects the rights of the parties remained as they were before the passage of the Act of 1838.
The special contract, then, that gives rise to the present controversy, is found in the terms of the 9th section of the Act of 1835, chap. 395, as modified and extended by the 1st section of the Act of 1838, chap. 386.
The bonds that were issued to the defendant by the State, under the Act of 1838, owing to difficulties in disposing of them to advantage, were not appropriated by the company until about the year 1849, when they were placed on the market in Europe, and sold. As they were disposed of, the defendant paid the interest on them as it accrued due, and all costs and difference in exchange, for the period of three years, and, after the expiration of that period, it continued to pay such interest, cost and exchange, by applying directly the State’s guaranteed dividend of six per cent, on the stock subscribed under the Act of 1835, instead of paying it over to the Treasury. The defendant rendered no account, but treated the six per cent, dividend as equivalent to the five per [538]*538cent, sterling interest, with the costs and exchange; and this continued to be its course of conduct to the 1st of July, 1865, from which time it ceased to apply the six per cent, dividend as formerly, but paid it directly into the State Treasury in currency notes. The State has been, therefore, required, from the 1st of July, 1865, to the present time, to provide for the payment of the sterling interest in London, together with all costs and difference in exchange, which, of course, had to be adjusted to a gold standard, while it had been in the receipt of the six per cent, dividend in currency, the value of which has been very much less than gold.
The State claims that it is entitled to be fully indemnified by the defendant; and that, as the sterling interest could only be paid in gold, or its equivalent, the six per cent, guaranteed dividend could only be paid in like currency. This, of course, depends upon the true construction of the contract, by which the subscription to the stock of the defendant was made, and the bonds of the State were furnished as means of payment for such stock.
At the trial in the Court below, the cause, by agreement, was submited to the Court without the intervention of a jury; and it was agreed that the cause should be referred to a special auditor to adjust the account between the parties; and that the Court should determine upon a proper construction of the Acts of the Legislature of the State, relating to the subject-matter, whether the six per cent, dividend provided by the Act of 1835, ch. 395, to be guaranteed and perpetually paid to the State by the defendant, was and is, or was and is not due and payable in gold. If payable in gold, a judgment for the State to be entered for the amount ascertained to be due; and if not so payable, judgment to be entered for the defendant.
Upon the Auditor’s Report, stating the account in various aspects, the Court below, upon determining the dividend to be payable in gold, found the sum due at the date of the judgment to be $281,489.39, for which judgment was entered, [539]*539payable in gold, and from which judgment this appeal is taken.
blow, in order the more clearly to determine as to the rights of the parties under the contract in question, it is proper that we first advert to the law as to what currency was legal tender at the date of the subscription for the stock by the State, and what currency constitutes a legal tender at this time.
At the date of the subscription in question, nothing but gold and silver coin constituted a legal tender for the discharge of debts contracted to be paid in dollars and cents generally. At that time the opinion prevailed everywhere, as well in the Senate as in the Courts, that gold and silver were the only legal tender that could be ordained, either by Congress or the Legislatures of the States. As evidence of this, Mr. Webster declared in 1836, in the Senate, himself no strict constructionist, that “ Most unquestionably there is no legal tender, and there can be no legal tender in this country, under the authority of this Government, or any other, but gold and silver, either the coinage of our mints, or foreign coin, at rates regulated by Congress. This is a constitutional principle, perfectly plain, and of the very highest importance. The States are expressly prohibited from making any thing but gold and silver a tender in payment of debts; and although no such express prohibition is applied to Congress, yet, as Congress has no power granted to it, in this respect, but to coin money and to regulate the value of foreign coins, it clearly has no power to substitute paper, or any thing else, for coin as a tender in payment of debts and in discharge of contracts.” (4 Webster’s Works, 265, 271.) This was the generally received opinion, and the acts and conduct of parties were regulated accordingly. The Supreme Court of the United States had declared in 1819, by its then great Chief Justice MabshaUj, that “ Nothing but gold and silver coin can be made a tender inpayment of debts.” Sturges vs. Crowninshield, 4 Wheat, 122, 205. And. in the subsequent case of [540]*540Gwin vs. Breedlove, 2 How., 38, it was said, in confirmation of what had been previously declared, that “ By the Constitution of the United States, gold and silver coin made current by law, can only be tendered in payment of debts.”
Relying, then, upon what was regarded as the settled law, beyond dispute or alteration, parties the most careful for the protection of their rights, at the period of the making the contract here involved, could well proceed in making their contracts upon the assumption that no other currency than gold and silver coin would ever be attempted to be made a legal tender.
Former opinions, however, of Judges and statesmen, however well founded, are no longer the received law upon this subject. The Congress of the Union, by several Acts, com''mencing with that of the 25th of February, 1862, known as the “Legal Tender Acts,” have declared that the notes thereby authorized to be issued shall be a legal tender in payment of debts, public and private. The constitutionality of these Acts has been brought into question before the highest Judicial Tribunal of the country, and their constitutionality finally sustained, though with much division of opinion. The first case in which the question Came directly under adjudication, was that of Hepburn vs. Griswold, 8 Wall., 603. In that case it was decided, by a divided Court of five to three Judges, that the legal tender clause in the Acts referred to was, so far as it applied to debts contracted before their passage, unwarranted by the Constitution of the Union. It was also decided that all contracts made prior to the 25th of February, 1862, for the payment of money, not expressly stipulating othenoise, were, in legal effect and contemplation, contracts for the payment of coin, and, under the Constitution, the parties to such contracts were respectively entitled to demand and bound to pay the sums due, according to their terms, in coin, notwithstanding the legal tender Acts. But this decision was allowed to prevail but for a short season. It was brought under review in the recent cases of Knox vs. [541]*541Lee and Parker vs. Davis, 12 Wall., 457, and the conclusión last arrived at, also by a divided Court of five to four Judges, is, that the legal tender clause in the Acts referred to is constitutional, as well when applied to contracts made before as to those made since the passage of the Acts.
This last decision is now the law, binding alike upon this Court and all the other Courts of the country; and, so far as it is applicable to the case now before us, must guide and control our judgment.
It is settled, however, that the Legal Tender Acts only apply to debts which are payable in money generally, and not to contracts payable in coin specifically, nor to contracts payable in commodities; and that when a contract for money is by its terms made payable in specie or coin, judgment may be entered thereon for coined dollars. This has been recently ruled by the Supreme Court, in the case of Trebilcock vs. Wilson, 12 Wall., 687, in conformity to previous decisions.
In view of the law as it now stands, it is plain, that, to enable the State to recover in this case, it must be shewn, either by express stipulation or fair implication, that the obligation of the defendant was to pay the six per cent, guaranteed dividend in gold; or otherwise it could be, and has been, paid and discharged as it accrued due, by legal tender notes.
The preliminary question much discussed in the arguments at bar, whether the relation of the State to the defendant, as to the subject-matter involved in this case, is that of creditor, or stockholder merely, is one, in our view, not very material to be decided. It is certainly true, however, that the State, by'virtue of its subscription of the three millions of dollars to the stock of the company, did, in some sense, and to many purposes, become a stockholder; but, at the same time, it may be conceded that it became something more; and as' its stock was preferred, and a six per cent, dividend perpetually guaranteed, out of the gross profits of the company, a quasi relation of creditor was created, as well as that [542]*542of stockholder. Rut whether we call the six per cent, dividend interest on a loan, or dividend on stock as such, is quite unimportant — as, let it be the one or the other, the claim to have it paid in gold depends upon the tenns of the contract — it being perfectly competent to the parties to stipulate for the payment of either interest or dividends in gold.
This, then, brings us directly to the question: Was the obligation of the contract by its terms to pay the six per cent, dividend in gold, and nothing else? It is conceded that it is not required by any express terms of the contract; and if required at all, it can only be by implication — taking all the terms and conditions of the contract together. And while it is readily conceded that the real intention and obligation of the parties may be arrived at by implication in the absence of express stipulation, still, that implication must be the result of a fair and reasonable construction of the contract itself. It must not be founded upon conjecture, mere probabilities, nor upon what now appears to have been reasonable and proper for the parties to have done in order to accomplish the object in view. The question is, were the particular means contemplated to the end, and provided for by the contract itself, in such manner as to be fairly discoverable by the application of just rules of construction? And here it is proper to note a well recognized distinction between the mere expectation of parties, founded upon extrinsic circumstances, and the duty imposed by the contract itself. “ The expectation of the creditor,” said the Supreme Court in the legal tender cases before referred to, (12 Wall., 548,) “and the anticipation of the debtors may have been that the contract would be discharged by the payment of coined metals, but neither the expectation of the one party to the contract respecting its fruits, nor the anticipation of the other, constitutes its obligation. There is a well recognized distinction between the expectation of the parties to a contract, and the duty imposed by it. Were it not so, the expectation of results would be always equivalent to a binding engagement that they should follow. But the [543]*543obligation of a contract to pay money, is to pay that which the law shall recognize as money when the payment is to be made. If there is anything settled by decision, it is this, and we do not understand it to be controverted.”
Now, applying these plain and well settled rules, upon what reasonable ground are we to infer and conclude that it was the intention of the parties to the contract in question, to make it the legal obligation of the defendant, to pay the six per cent, dividend in gold specifically, instead of money generally? We have not been able to discover any sufficient ground to justify such a conclusion, and think none exists. The terms of the contract in reference to the payment of the dividend, are, that the State should receive payment “ out of the profits of the work, of six per centum per annum, payable semi-annually on the amount of money which shall be paid to the said company, under and by virtue of this Act, until the clear annual profits of the said railroad shall be more than sufficient to discharge the interest, which it shall be liable so to pay to the State of Maryland,” and to pay a dividend of six per cent, per annum amongst its stockholders; after which the State shall be entitled “ to have and receive a, perpetual dividend of six per centum per annum, out of the profits of the work, as declared from time to time, and no more.” It will be observed that there is nothing in the language here used, to indicate, in the slightest degree, the intention of the contracting parties to make the dividend on the stock subscribed by the State, payable in gold, or in any other currency than money generally.
It has been ably and earnestly contended, however, on behalf of the State, that it was the intention at the time that full indemnity should be furnished by the' defendant for all outlay in defraying the five per cent, sterling interest in London, together with all costs and exchange; and as to do which the State has been required to purchase gold at large premium rates, nothing of less value should be received in payment of the six per cent, dividend; that it was the intention [544]*544that the dividend should be equivalent, and always adequate to pay, the sterling interest and all incidental expenses. This, in one sense, may be conceded, as it was doubtless the supposition at the time that such would be the effect and operation of the arrangement between the State and the defendant. But, as we have seen, it is not what was expected or anticipated as the result of the arrangement, but the legal obligation of the contract, that binds the parties. The defect in the contract now under consideration, tried by the law as it now exists, is, that it did not contemplate and provide for the present state of the Legal Tender Law. At the period when this contract was made, it is not likely that it ever entered into the thoughts of the parties concerned, that any thing but gold and silver coin could ever be made a legal tender for the discharge of contracts. It was, therefore, futile and utterly useless, viewing the matter from that period, and in the light of opinions then prevailing, to incorporate into the contract any such special obligation as that the dividend should be paid in gold. As the law then stood, it could be paid in that currency and none other, .if the State thought proper to insist upon it. It is only by the operation and effect of the Legal Tender Acts, recently declared constitutional by the Supreme Court, that the defendant is now exonerated from the liability supposed, at -the date of the contract, to be immutable, to pay the guaranteed dividend in gold. If the law had been allowed to remain as it was declared to be by the decision in Hepburn vs. Griswold, 8 Wall., 603, which was the law of the land at the time of the institution of this action, the defendant would have been bound to pay the dividend in gold. But this last mentioned decision having been in part overruled, and the Legal Tender Acts given an application to contracts made prior to as well as to those made since the passage of those Acts, the contract involved in the present case falls within their operation.
In addition to the foregoing considerations, there are others, suggested by the very nature of the contract itself, its objects [545]*545and purposes, and the relation of the parties at the time, that resist the conclusion that it was intended to make the dividend payable in gold specifically, rather than in money generally. Apart from the then want of reason for incorporating such a provision in the contract, it must be borne in mind, that the State was contracting not with a stranger and a party alien to its interest, but with a creature of its own creation, endowed by its sovereign will with powers and capabilities to accomplish what was most anxiously desired and expected— the development of the State’s great resources of wealth, and the promotion of its commercial prosperity. The State and the city of Baltimore had, at the time of the subscription in question, become largely identified in interest and expectation with the enterprise itself; and it was in aid and support of the work, as a great State scheme of improvement, that the subscription was made. Why, then, should we suppose that the contract of subscription was intended to be one of peculiar strictness as to the currency in which the dividend should be paid, dependent as it was made, upon the gross profits of the -works? Indeed, at the time of this contract, it was a thing of rare occurrence for parties to stipulate specially for payment in gold — the general rule being to make contracts payable in money generally, the law designating with certainty in what currency they could be paid.
The case of Lane County vs. The State of Oregon, 7 Wall., 71, was much relied on in the argument for the State, as furnishing an instance where the obligation to pay gold was implied from the nature of the case itself. But we think the analogy between that case and the present is very imperfect. In that case the taxes, by the express terms of the law, were required to be paid over by the receivers of them, in gold and silver coin; and the State Courts having held that the statute of the State of Oregon required, either directly or by clear implication, the collection of the taxes in gold and silver, the Supreme Court said that such construction had nothing strained or unreasonable in it. Of course, if the taxes were [546]*546collectible in gold and silver coin, and it was made the duty of the State’s agents to collect them in that currency, it was the State’s right to have them accounted for in that currency and none other. And such was the point of the decision in that case.
(Decided 21st June, 1872.)
It appearing to this Court that the six per cent, guaranteed dividend was and is payable by the defendant in money generally, and not in gold specifically, the judgment of the Court below must be reversed, and, under the agreement of the parties, judgment will be entered for the defendant.
Judgment reversed, and judgment for the defendant.