A-72718, JUNE 17, 1936, 15 COMP. GEN. 1106

A-72718, JUNE 17, 1936, 15 COMP. GEN. 1106

TRANSPORTATION - LAND-GRANT DEDUCTIONS - RAILROADS OPERATING OVER LIEU LINES PAYMENTS TO RAILROADS FOR MAIL SERVICE BETWEEN POINTS WHERE A LIEU LINE LEAVES A LAND-GRANT-AIDED LINE, THE LIEU LINE BEING LONGER THAN THE ORIGINAL LAND-GRANT-AIDED LINE, ARE ON THE BASIS OF LAND-GRANT RATES FOR THE SHORTER DISTANCE OVER THE ORIGINAL LINE EXCEPT WHEN MAIL TRANSPORTATION COULD NOT BE OBTAINED TO POINTS ON THE LIEU LINE OVER THE LAND-GRANT-AIDED LINE, THE BASIS FOR PAYMENT IN SUCH CASES BEING NON-LAND- GRANT RATES FOR THE ACTUAL DISTANCE. PAYMENTS TO RAILROADS FOR MAIL SERVICES BETWEEN POINTS ON A LIEU LINE SHORTER THAN THE ORIGINAL LAND-GRANT-AIDED LINE SHOULD BE ON THE BASIS OF LAND-GRANT RATES FOR THE SHORTER DISTANCE OVER THE LIEU LINE. WHERE RAILROADS WHICH RECEIVED NO FEDERAL LAND GRANTS BETWEEN CERTAIN POINTS OPERATE BETWEEN SAID POINTS OVER LINES OF OTHER CARRIERS CONSTRUCTED IN LIEU OF LAND-GRANT-AIDED LINES, PAYMENTS FOR MAIL SERVICE MAY BE MADE AT FULL RATES RATHER THAN THE LAND-GRANT RATES INVOLVED.

COMPTROLLER GENERAL MCCARL TO THE POSTMASTER GENERAL, JUNE 17, 1936:

YOUR LETTER OF MARCH 19, 1936, IS AS FOLLOWS:

THE ORIGINAL LINE OF THE NORTHERN PACIFIC RAILWAY BETWEEN ASHLAND, WISCONSIN, VIA HELENA AND DIXON, MONTANA, HOPE, IDAHO, AND CROCKER AND TACOMA, WASHINGTON, TO PORTLAND, OREGON, WAS LAND AIDED. THAT COMPANY HAS CONSTRUCTED OR ACQUIRED NEW TRACKAGE ON THAT PART OF THE LINE FROM TACOMA VIA NISQUALLY TO TENINO, WASHINGTON, 43 MILES, WHICH IT USES FOR MAIL SERVICE IN LIEU OF THE ORIGINAL LAND GRANT TRACKS FROM TACOMA VIA LAKEVIEW TO TENINO, WASHINGTON, 39.01 MILES. IT HAS ALSO CONSTRUCTED NEW TRACKAGE FROM KALAMA VIA WOODLAND AND RIDGEFIELD TO VANCOUVER, WASHINGTON, 28.90 MILES, AND REACHES PORTLAND, OREGON, OVER TRACKS OF THE SPOKANE, PORTLAND AND SEATTLE RAILWAY, VANCOUVER TO WILLBRIDGE, OREGON, 5.52 MILES, AND THE ORIGINAL NORTHERN PACIFIC LAND GRANT TRACKS, NOW UNDER LONG TERM LEASE TO THE SPOKANE, PORTLAND AND SEATTLE RAILWAY, WILLBRIDGE TO PORTLAND, 4.44 MILES; A TOTAL DISTANCE KALAMA TO PORTLAND OF 38.86 MILES--- THE COMPANY USING THE ABOVE DETAILED TRACKAGE KALAMA, WASHINGTON, TO PORTLAND, OREGON, IN LIEU OF THE ORIGINAL LAND GRANT TRACKAGE FROM KALAMA, WASHINGTON, ACROSS THE COLUMBIA RIVER VIA GOBLE AND WILLBRIDGE TO PORTLAND, OREGON, 39.65 MILES.

IN LINE WITH VARIOUS RULINGS MADE BY YOUR OFFICE CONCERNING PAY FOR MAIL SERVICE ON LAND GRANT RAILROADS, IT SEEMS CLEAR THAT MAIL CARRIED FOR THE POST OFFICE DEPARTMENT BETWEEN TACOMA AND TENINO VIA THE POST OFFICES OF NISQUALLY, STELLACOOM, AND EAST OLYMPIA OVER THE SUBSTITUTED TRACKAGE, AND BETWEEN KALAMA AND PORTLAND VIA THE POST OFFICES OF WOODLAND, RIDGEFIELD, AND VANCOUVER, WASHINGTON, ALSO OVER SUBSTITUTED TRACKAGE, SHOULD BE AT THE LESSER OR LAND GRANT RATE OF PAY, BUT YOUR DECISION IS REQUESTED AS TO WHAT MILEAGE SHOULD BE USED IN COMPUTING THE RAILWAY MAIL PAY FOR SUCH SERVICE.

SHOULD THE ORIGINAL LAND-GRANT MILEAGE FROM TACOMA VIA LAKEVIEW AND RANIER TO TENINO, 39.01 MILES, OR THE NEW MILEAGE VIA NISQUALLY OF 43 MILES BE USED, IN VIEW OF THE FACT THAT IT IS NECESSARY TO OPERATE OVER THE LONGER MILEAGE IN SUPPLYING INTERMEDIATE POST OFFICES ABOVE NAMED?

IN THE CASE OF SERVICE BETWEEN KALAMA AND PORTLAND, SHOULD WE USE THE ORIGINAL MILEAGE VIA GOBLE OF 39.65 MILES OR THE NEW DISTANCE VIA VANCOUVER OF 38.86 MILES?

IN THIS CONNECTION THE NORTHERN PACIFIC RAILWAY DOES NOT NOW OPERATE ANY OF ITS MAIL TRAINS OVER THE ORIGINAL TRACKAGE BETWEEN TACOMA AND TENINO, OR KALAMA AND PORTLAND, EXCEPT BETWEEN WILLBRIDGE AND PORTLAND, 4.44 MILES, AS ABOVE STATED, THOUGH THE SPOKANE, PORTLAND AND SEATTLE RAILWAY DOES OPERATE TRAINS CARRYING THE MAIL OVER THE ORIGINAL NORTHERN PACIFIC LAND-GRANT TRACKS, WILLBRIDGE TO GOBLE, WHICH IS UNDER A LONG-TERM LEASE TO THE SPOKANE, PORTLAND AND SEATTLE RAILWAY, FOR WHICH IT IS PAID AT THE 80-PERCENT OR LAND GRANT RATE.

FURTHER DECISION IS REQUESTED, AS FOLLOWS: THE GREAT NORTHERN RAILWAY OPERATES TRAINS CARRYING MAIL FROM PORTLAND VIA WILLBRIDGE, VANCOUVER, KALAMA, TENINO, RANIER AND LAKEVIEW TO TACOMA OVER THE ORIGINAL LAND-GRANT TRACKS OF THE NORTHERN PACIFIC RAILWAY PORTLAND TO WILLBRIDGE, OVER THE SPOKANE, PORTLAND AND SEATTLE TRACKS WILLBRIDGE TO VANCOUVER, OVER THE NEW SUBSTITUTE TRACKS OF THE NORTHERN PACIFIC VANCOUVER TO KALAMA, AND OVER THE ORIGINAL NORTHERN PACIFIC LAND-GRANT TRACKS KALAMA VIA TENINO AND RAINIER TO TACOMA. THE UNION PACIFIC RAILROAD, FORMERLY THE OREGON- WASHINGTON RAILROAD AND NAVIGATION COMPANY, OPERATES TRAINS CARRYING THE MAIL FROM PORTLAND VIA VANCOUVER, KALAMA, TENINO, AND NISQUALLY TO TACOMA OVER THE TRACKS OF THE UNION PACIFIC PORTLAND TO NORTH PORTLAND, OVER THE TRACKS OF THE SPOKANE, PORTLAND AND SEATTLE NORTH PORTLAND TO VANCOUVER, OVER THE NEW OR SUBSTITUTED TRACKS OF THE NORTHERN PACIFIC VANCOUVER TO KALAMA, OVER THE ORIGINAL LAND-GRANT TRACKS OF THE NORTHERN PACIFIC, KALAMA TO TENINO, AND OVER THE SUBSTITUTED TRACKAGE OF THE NORTHERN PACIFIC, TENINO VIA NISQUALLY TO TACOMA.

IT IS UNDERSTOOD BY THIS DEPARTMENT THAT THE GREAT NORTHERN AND UNION PACIFIC RAILROADS ARE ONLY ENTITLED TO THE LAND-GRANT RATE OF PAY FOR SERVICE WHERE THEY OPERATE OVER THE ORIGINAL NORTHERN PACIFIC LAND-GRANT TRACKAGE; IN THE CASE OF THE GREAT NORTHERN, IT USES SUCH TRACKAGE, PORTLAND TO WILLBRIDGE, KALAMA VIA TENINO AND LAKEVIEW TO TACOMA, AND IN THE CASE OF THE UNION PACIFIC, IT USES THIS TRACKAGE ONLY BETWEEN KALAMA AND TENINO; AND DECISION IS REQUESTED AS TO THE CORRECT RATE THAT SHOULD BE ALLOWED FOR SERVICE BY THESE RAILROADS OVER THE OTHER TRACKAGE USED FROM WILLBRIDGE VIA VANCOUVER TO KALAMA, AND TENINO VIA NISQUALLY TO TACOMA.

IN SUBSTANCE IT SEEMS THAT THE QUESTIONS ARE AS TO THE BASIS OF PAYMENT--

1. TO THE NORTHERN PACIFIC RAILWAY FOR SERVICE OVER ITS LONGER NONAIDED RAILROAD BETWEEN TACOMA, WASH., AND TENINO, WASH., VIA STELLACOM (STEILACOOM?), NISQUALLY, AND EAST OLYMPIA, WASH., BEING APPROXIMATELY 43 MILES IN LENGTH AND USED BY THE CARRIER IN LIEU OF ITS SHORTER ORIGINAL AND AIDED RAILROAD APPROXIMATELY 39.01 MILES IN LENGTH.

2. TO THE NORTHERN PACIFIC RAILWAY FOR SERVICE OVER ITS SHORTERNONAIDED RAILROAD BETWEEN KALAMA, WASH., AND PORTLAND, OREG., VIA WOODLAND, RIDGEFIELD, AND VANCOUVER, WASH., BEING APPROXIMATELY 38.86 MILES IN LENGTH AND USED BY THE CARRIER IN LIEU OF ITS LONGER ORIGINAL AND AIDED RAILROAD APPROXIMATELY 39.65 MILES IN LENGTH.

3. TO THE GREAT NORTHERN RAILWAY FOR SERVICE BETWEEN WILLBRIDGE, OREG., AND KALAMA, WASH., VIA VANCOUVER, WASH., OVER THE NONAIDED AND LIEU LINE RAILROAD OF THE NORTHERN PACIFIC RAILWAY.

4. TO THE UNION PACIFIC RAILROAD FOR SERVICE BETWEEN VANCOUVER, WASH., AND KALAMA, WASH., AND BETWEEN TENINO, WASH., AND TACOMA, WASH., VIA NISQUALLY, WASH., OVER THE TWO NONAIDED AND LIEU LINES OF RAILROAD OF THE NORTHERN PACIFIC RAILWAY.

THE LAND GRANTS HERE CONCERNED WERE UPON CONDITION THAT THE AIDED ROAD---

* * * OR ANY PART THEREOF, SHALL BE A POST ROUTE AND A MILITARY ROAD, SUBJECT TO THE USE OF THE UNITED STATES, FOR POSTAL, MILITARY, NAVAL, AND ALL OTHER GOVERNMENT SERVICE, AND ALSO SUBJECT TO SUCH REGULATIONS AS CONGRESS MAY IMPOSE RESTRICTING THE CHARGES FOR SUCH GOVERNMENT TRANSPORTATION.

(ACT OF JULY 2, 1864, CHAP. 217, SEC. 11, 13 STAT. 365.)

UPON CONSIDERATION OF THE SEVERAL QUESTIONS IN THE ORDER STATED YOU ARE ADVISED---

1. THE SITUATION HERE SEEMS SIMILAR TO THAT CONSIDERED IN DECISION A- 31790 OF JUNE 13, 1930 (SEE ALSO DECISION OF JUNE 17, 1935, 14 COMP. GEN. 901), AND THERE IS NO APPARENT REASON WHY THE PRINCIPLE THERE SET FORTH SHOULD NOT BE APPLIED HERE. IN OTHER WORDS, PAYMENT TO THE NORTHERN PACIFIC RAILWAY FOR ITS SERVICE BETWEEN THE POINT (STATED TO BE TENINO) WHERE THE LIEU LINE LEAVES THE LAND-GRANT-AIDED LINE AND TACOMA SHOULD BE ON THE BASIS OF LAND-GRANT RATES FOR THE SHORTER DISTANCE OVER THE LATTER LINE, BUT AS TO SERVICE BETWEEN SUCH POINT OF DEPARTURE AND POINTS ON THE LIEU LINE WHEN MAIL TRANSPORTATION COULD NOT BE OBTAINED TO SUCH LATTER POINTS OVER THE LAND-GRANT-AIDED LINE ON THE BASIS OF NON-LAND-GRANT RATES FOR THE ACTUAL DISTANCE.

2. THE SITUATION HERE SEEMS SIMILAR TO THAT CONSIDERED IN DECISIONS OF JUNE 23, 1931 (10 COMP. GEN. 552), AND JUNE 17, 1935 (14 COMP. GEN. 901), AND THERE IS NO APPARENT REASON WHY THE PRINCIPLE THERE SET FORTH SHOULD NOT BE APPLIED HERE. IN OTHER WORDS, PAYMENT TO THE NORTHERN PACIFIC RAILWAY FOR ITS SERVICE OVER THE LIEU LINE BETWEEN PORTLAND AND KALAMA THROUGH VANCOUVER SHOULD BE ON THE BASIS OF LAND GRANT RATES FOR THE SHORTER DISTANCE OVER THE LIEU LINE.

3-4. IT IS SETTLED THAT IF A NONAIDED CARRIER PERFORMS GOVERNMENT TRANSPORTATION OVER THE AIDED RAILROAD OF ANOTHER CARRIER (OR ITS SUCCESSOR IN INTEREST) COMPENSATION THEREFOR TO THE NONAIDED CARRIER IS LIMITED TO THAT TO WHICH THE AIDED CARRIER WOULD BE ENTITLED FOR SUCH TRANSPORTATION OVER THE AIDED RAILROAD, THE BURDEN IMPOSED BY THE GRANTING STATUTE RUNNING WITH THE RAILROAD AND APPLYING TO ANY CARRIER USER THEREOF WHETHER BENEFICIARY OR NONBENEFICIARY OF THE GRANTS (THE ASTORIA AND COLUMBIA RIVER RAILROAD CO. V. THE UNITED STATES, 41 CT.CLS. 284; CHICAGO, ST. PAUL, MINNEAPOLIS AND OMAHA RAILWAY CO., APPT., V. UNITED STATES, 217 U.S. 180, 54 L.ED. 721), AND AS STATED IN DECISION OF JUNE 23, 1931 (10 COMP. GEN. 552/---

* * * THE PRINCIPLE IS WELL ESTABLISHED IN A LONG LINE OF DECISIONS OF THIS OFFICE, WITH WHICH THE COURTS HAVE AGREED, THAT WHEN A LAND GRANT ROAD, FOR PURPOSES OF ITS OWN, BUILDS CUT-OFFS AND USES SUBSTITUTED MILEAGE FOR THE LAND-GRANT MILEAGE, THE TRANSPORTATION OVER SUCH SUBSTITUTED MILEAGE IS SUBJECT TO THE SAME CONDITIONS WHICH WOULD APPLY HAD THERE NOT BEEN THE SUBSTITUTED MILEAGE. SEE UNITED STATES V. NORTHERN PACIFIC RAILWAY COMPANY, 30 FED.REP./2D) 655, REHEARING DENIED 32 FED.REP./2D) 695 * * *. THIS PRINCIPLE IS FOR APPLICATION WITH RESPECT TO THE USE BY THE UNION PACIFIC AND GREAT NORTHERN OF THE ORIGINAL AIDED LINE OF THE NORTHERN PACIFIC.

HOWEVER, NEITHER THE GREAT NORTHERN RAILWAY NOR THE UNION PACIFIC RAILROAD RECEIVED GRANTS OF LANDS FOR CONSTRUCTION OF A ROAD BETWEEN TACOMA AND PORTLAND, AND THE ROADWAYS USED BY SAID CARRIERS BETWEEN WILLBRIDGE AND KALAMA VIA VANCOUVER, AND BETWEEN TENINO AND TACOMA VIA NISQUALLY WERE NOT IN FACT AIDED IN THEIR CONSTRUCTION BY GRANTS OF LAND FROM THE GOVERNMENT. IN VIEW OF THESE FACTS AND THE OTHER CIRCUMSTANCES APPEARING AS TO THE USE OF THE ORIGINAL LAND-GRANT ROAD BETWEEN THE POINTS NOTED, NO OBJECTION APPEARS TO PAYMENT TO THESE CARRIERS AT FULL RATES, RATHER THAN AT LAND-GRANT RATES, FOR THE TRANSPORTATION OF MAILS BY THEM OVER THE ALTERNATE NONAIDED LINES SPECIFIED.