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Mobile and Ohio Railroad Company.

explicit terms in the cases of the United States against Child, (12 Wall., 232,) and United States against Clyde, (13 Wall., 35.) The last case, particularly, is decisive of the present question.

This disposes of the first question in the case as stated by the Second Comptroller, and it would not be right for this Department to volunteer an opinion upon so important a question as the right of the Government to fix the rates of transportion under General Canby's order, in a case in which its decision is not necessary.

The second question involves the construction of the condition of the bond given by the Mobile and Ohio Railroad Company to the Government, dated November 1, 1865, a bond in the penal sum of eight hundred and forty-four thousand dollars, which recited that the said company had received, or were about to receive, from the War Department rolling-stock, iron rails, and other material for repairing and operating its railroad, upon a credit of two years, payable in equal monthly installments, with interest at the rate of seven and three-tenths per cent. per annum, within the said two years, either in cash or in transportation of troops and military supplies of the United States, under the orders of the proper military au thorities, at the rates of "fare and tolls allowed for such services to northern railroads."

The question is, what is meant by the reference to the rates allowed to northern railroads? It appears that on the 1st of May, 1862, regulations were established by the Quartermaster. General, in accordance with the recommendation of the convention of railroad managers which had been held in Washington by invitation of the Secretary of War, establishing rates to be paid to railroad companies for the transportation of troops. and supplies belonging to the Government. Certain exceptions were made to the general application of these regula tions, and certain railroad companies in the States of Maryland, Virginia, Kentucky, Tennessee, and Missouri, seven in all, I believe, were allowed their ordinary rates on account of their proximity to the seat of war, and for other reasons which seemed to make their position different from those railroads farther north.

The claim of the Mobile and Ohio Railroad Company is,

Mobile and Ohio Railroad Company.

that they, being situated in States which had been the seat of war, fall within the principles which had been applied to the excepted railroads above referred to, and not those which had been applied to the railroads in the Northern States generally, and that they are therefore entitled under this contract to the rates paid to these excepted roads, or at least to the average rate paid to the northern roads, including not only those covered by the regulations, but likewise those excepted from them. But it seems to me very clear that both positions are untenable. When northern railroads are mentioned, I cannot have any doubt that reference is made to the railroads in the Northern States; and none of the late slave-States have ever been included in such a designation. After the war began, those of the former slave-States which continued more or less loyal to the Government were sometimes designated as "the border States," "the loyal slaveholding States," &c., and would probably come within the designation in the bond if that had been "the loyal States;" but they had not been then, nor are they now, in ordinary parlance, included within the term "the Northern States," and I cannot believe that they are referred to in this contract. But there is another view of the case, which is equally decisive: these are exceptions to the regulations generally in force throughout the country; and when reference is made to any contract or regulation, the general rule of the contract or regulation, and not any exception in it, is meant. This would seem almost too clear for argument, and it necessarily follows that the rate to be allowed under the bond of November 1, 1865, is the rate allowed by the Government to the northern railroads, and not to the excepted railroads lying in the border States; nor are these to be considered at all in fixing the compensation.

The third and, perhaps, the most important question in the case remains to be considered. By the act of Congress of September 20, 1850, (9 Stat., 466,) the Mobile Railroad Company received a grant of land in aid of the construction of a railroad from Chicago to Mobile, and which was likewise made to the Ililnois Central Railroad. The 7th section of that act provides "that the said railroad and branches shall be and remain a public highway for the use of the Government of

Mobile and Ohio Railroad Company.

the United States, free from toll or other charge upon the transportation of any property or troops of the United States." (9 Stat., 467.) Attorney-General Akerman, in an opinion given to the Secretary of War, dated November 20, 1871, decided that under this statute the Mobile and Ohio Railroad Company became a public highway, within the meaning of this section, for its entire length. (See 13 Opin., 536.)

When railroads were first established, the first idea was that of an iron turnpike over which the public would have a right to draw, by steam, their own vehicles upon paying a reasonable toll therefor, as was allowed on turnpikes and canals; and all the earlier roads in their acts of incorporation had provisions looking to this purpose. Experience has demonstrated that any such use of a railroad-line would be impracticable, and, even if it were practicable, in the highest degree dangerous, and the consequence is that the whole design has now been abandoned. But the Government still seems to have reserved a right in roads to which it had granted lands, to put its own engines and trains upon the line and to carry them free of toll. Instead of so doing, however, the Quartermaster-General seems to have established the rule of deducting one-third from the rates fixed for the transportation of Government troops and stores as an equitable composition for this right possessed by the Government, and which it could at any time enforce, no matter how detrimental it might be to the general business of the line. That such a composition would be as beneficial to the railroad company as to the Government is very apparent, but no right is reserv ed by the Government in the grant made to the road to enforce any such composition upon a railroad without its consent. And if the Government makes a contract for the transportation of troops and other materials with a railroad company, and agrees to pay at a certain rate for so doing, and makes no reference to the original right reserved, or to any composition therefor, as it may do, the railroad company becomes entitled to receive the full amount fixed by the contract without any reference to the rights of the Government under the act granting the land. If Congress had reserved in such act not only the right to use the road free of toll, but likewise the alternative right to have men and property

Mobile and Ohio Railroad Company.

transported at a lower rate than the public generally, there is just the same ground for arguing that a deduction was to be made from the amount fixed by any subsequent contract as provided by the act of Congress, although even then this would admit of question, and is a point upon which I express no opinion.

But where the Government, without enforcing its rights, makes a special contract and fixes a special rate, which it agrees to pay to the railroad company for transporting troops or property belonging to the Government, the fact that it has a right, if it likes, to use the road for nothing, and that such right might equitably be compounded by a deduction of a certain amount from ordinary rates, has no bearing upon the contract after it has been made, however proper to be considered by the parties at the time of making it. On the contrary, the fact that the Government, with this right existing, has made a contract with a railroad and agreed to pay it a certain rate for the transportation of men and property, would seem strongly to indicate that the right had been considered by the parties at the time the contract was made, and the rates therein fixed were a sufficient deduction from ordinary rates to include a composition for the relinquishment of the right to use the road within the extent of the contract. I am aware that the Quartermaster-General has made these deductions, and that "land-grant railroad" companies have assented very frequently, perhaps generally, to the deduction he has made; but the deduction has no force except as a matter of contract between the parties; and because one or ten or twenty railroads have assented to the deduction, that gives no right to make a similar deduction from the rates allowed by special contract to a twenty-first railroad; the only force which such a composition can have being merely what belongs to a contract between the Government and each of the railroads which agrees that it should be substituted for the right possessed by the Government of using the railroad with its own engines and cars.

It has been suggested, in support of the right to make this deduction, that the Quartermaster-General has established a general rule, fixing a deduction of thirty-three per cent. as composition for the right which the Government enjoys to use

Mobile and Ohio Railroad Company.

land-grant railroads, and that this rule has become a general and notorious usage of the Government, which establishes a custom that all railroads must take notice of, and that railroad companies must be presumed to contract in reference to it. But, passing by all other objections to such a proposition, the decisive answer to it is, that the Quartermaster-General has no power to fix a certain deduction as a composition for this right which is binding even upon the Government. The right to use a railway is a right reserved to every Department of the Government, and the fact that the Quartermaster-General makes one composition in respect thereof for military purposes does not prevent any other Department from making a separate and distinct composition, or from asserting their right to use the road itself in case they have occasion so to do; and consequently no composition established by the Quartermaster-General, no matter how generally it might be accepted, can have any force as a general composition for the rights of the Government. And, indeed, it is difficult to see how power is vested in any body except Congress to fix a deduction of thirty-three per cent., or forty per cent., or fifty per cent., or even a larger deduction still, as a general composition, so as to bar or affect the rights of the Government, and a fortiori such compositions cannot affect the rights of railroads. The joint resolution of March 6, 1862, (12 Stat., 614,) which authorized the Secretary of War and Quartermaster-General to compound for the use of the railroads without waiving any right which the United States possessed under the act granting lands to those roads, does not, in my opinion, at all change or affect the question in respect of whether the QuartermasterGeneral can compel a railroad to accept a composition which he has established, or whether such a composition is anything more than a special contract between the Government and any railroad accepting it.

It follows that the Government is not entitled to deduct thirty-three and one-third per cent. from the rates fixed by the contract of November 1, 1865, with the Mobile and Ohio Railroad.

It may be proper, considering the importance of this case, to say that the Attorney-General considered it alone, and in consultation with us, before he left the city, and that upon

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