ToM1=K1Ns v. LITTLE Bock & FT. s. BY. 9
lapse of 90 days from the expiration of the session "by an express
declaration in the act itself," which this act did not contain.
The defendant, the Little Rock & Fort Smith Railway, derives title
to the railroad through the foreclosure of a mortgage executed by the
railroad company on the twenty-second of December, 1869. '
The award of state aid wasmade to therailroadcompany on the
twenty-eighth of April, 1869, and the nrst issue of bonds thereunder
was on the twenty—fifth of March, 4187 0, and the last on theitwenty-
thirdof February, 1873. 4
The plaintiff, a holder of state aid bonds issued to the railroad com> c
pany, iiled his bill, alleging that, the acts of the legislature under
which the bonds were issued, reserved and created; a statutory mort-
gage on the road, and an equitable lien on its income ar1d ·reve¤ues,
to secure the payment ofthe statej bonds, issued to and 'negotiated
by the company, rand prayed for the enforcement of such lien in his
favor. To this bil1‘the,railway4‘company demurred. The following
are the only grounds of demurrer much relied upon or necessary to
be noticed: 4 ‘ V _ 4 4 `
(1) That the act of .1868 wasnot in forcewhen the election was held under
it, and that the consent of the people to the loan not having been given at an
election held in pursuance of law, the act of 1868 and the bonds issued there- Y *
under are unconstitutional and void. (2) That no lien in favor ct the state ,
or of any holder of the bonds is created or reserved by the actin question.
(3) That the lien created by the mortgage deed under whichthe defendant.
the railway company, claims title, issuperior and prior to the lien, if any, re-7 i
served and created in favor of the state or the holders of the state bonds
under the act of 1868. ‘ _ 4 ,
John McClure and John R. Dos Passes, for plaintiff. 4
O. W. Huntington, for defendant, Little Bock & Ft. Smith Rail- ,
way.
`CALDWELL, J. We are confronted at the threshold of this case
with the question, whether the acts of the legislature, under which 4
the bonds were issued to the railroad company, created a statutory
mortgage or lien upon the railroad, or an equitable lien or charge on
its earnings and income, to secure the payment of the principal and
interest of the state bonds.4 ( 4 4 ,
Before discussing the provisions of the act relating to this question,
it will be_ well to have an accurate understanding of the relation the
state and company sustained to each other in the matter of the '
bonds. It was contemplated that the company would sell the bonds
to raise money to build its road. They were Ioanel by the state to
the company for that purpose. They were accommodation paper,