A-16166, NOVEMBER 17, 1926, 6 COMP. GEN. 340

A-16166: Nov 17, 1926

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TRANSPORTATION OF THE MAILS - LAND-GRANT RATES THE RIGHT OF THE GOVERNMENT TO LAND-GRANT RATES FOR THE TRANSPORTATION OF THE MAILS OVER GOVERNMENT-AIDED RAILROADS IS A RIGHT ANNEXED TO AND FORMS A PART OF THE GRANT IN THE NATURE OF A COVENANT RUNNING WITH THE ROADWAY AND SUCH RIGHT MAY NOT BE WAIVED WITHOUT THE CONSENT OF CONGRESS. OR TRANSPORTED BY A GOVERNMENT-AIDED RAILROAD OVER THE LINES OF A NON GOVERNMENT-AIDED RAILROAD BETWEEN POINTS CONNECTED BY THE GOVERNMENT AIDED LINES ARE SUBJECT TO LAND-GRANT RATES. FOR SERVICES OF ITS TRAINS REGARDLESS OF WHICH TRACKS ARE USED. IS APPLYING FOR NONLAND-GRANT RATES TO COVER THE MILEAGE FOR WHICH IT OPERATES TRAINS OVER TRACKS OF THE NORTHERN PACIFIC RAILWAY CO.

A-16166, NOVEMBER 17, 1926, 6 COMP. GEN. 340

TRANSPORTATION OF THE MAILS - LAND-GRANT RATES THE RIGHT OF THE GOVERNMENT TO LAND-GRANT RATES FOR THE TRANSPORTATION OF THE MAILS OVER GOVERNMENT-AIDED RAILROADS IS A RIGHT ANNEXED TO AND FORMS A PART OF THE GRANT IN THE NATURE OF A COVENANT RUNNING WITH THE ROADWAY AND SUCH RIGHT MAY NOT BE WAIVED WITHOUT THE CONSENT OF CONGRESS. THEREFORE, MAILS TRANSPORTED BY NON-GOVERNMENT AIDED RAILROAD OVER THE LINES OF A GOVERNMENT-AIDED RAILROAD, OR TRANSPORTED BY A GOVERNMENT-AIDED RAILROAD OVER THE LINES OF A NON GOVERNMENT-AIDED RAILROAD BETWEEN POINTS CONNECTED BY THE GOVERNMENT AIDED LINES ARE SUBJECT TO LAND-GRANT RATES.

COMPTROLLER GENERAL MCCARL TO THE POSTMASTER GENERAL, NOVEMBER 17, 1926:

THERE HAS BEEN RECEIVED YOUR LETTER OF OCTOBER 28, 1926, REQUESTING DECISION WHETHER NONLAND-GRANT MAIL TRANSPORTATION RATES SHOULD BE APPLIED TO THE MILEAGE OVER THE NORTHERN PACIFIC RAILWAY CO. TRACKS USED BY WEST- BOUND TRAINS OF THE GREAT NORTHERN RAILWAY CO. IN TRANSPORTING THE MAILS BETWEEN NORTHTOWN AND COON CREEK, MINN., AND, IN PART OVER THE SAME LINE, BETWEEN NORTHTOWN AND ELK RIVER, MINN., AND LAND-GRANT RATES APPLIED TO THE MILEAGE OF THE GREAT NORTHERN RAILWAY CO. TRACKS USED BY EAST-BOUND TRAINS OF THE NORTHERN PACIFIC RAILWAY CO. IN TRANSPORTING THE MAILS BETWEEN SAID POINTS, OR WHETHER LAND-GRANT RATES SHOULD BE PAID THE GREAT NORTHERN RAILWAY CO. FOR SERVICE OF ITS TRAINS AND NONLAND-GRANT RATES PAID THE NORTHERN PACIFIC RAILWAY CO. FOR SERVICES OF ITS TRAINS REGARDLESS OF WHICH TRACKS ARE USED.

IT APPEARS FROM YOUR LETTER THAT THE GREAT NORTHERN RAILWAY CO. IS APPLYING FOR NONLAND-GRANT RATES TO COVER THE MILEAGE FOR WHICH IT OPERATES TRAINS OVER TRACKS OF THE NORTHERN PACIFIC RAILWAY CO., THE FACTS RELATIVE THERETO BEING STATED IN YOUR LETTER AS FOLLOWS:

THE LINE OF THE GREAT NORTHERN RAILWAY FROM NORTHTOWN (A POINT ACROSS THE RIVER FROM MINNEAPOLIS) BY COON CREEK, ELK RIVER, AND OTHER POINTS TO ST. CLOUD, MINN., IS LAND GRANT. THE NORTHERN PACIFIC RAILWAY BETWEEN THOSE POINTS WHICH PARALLELS THE GREAT NORTHERN, IS NONLAND GRANT. WHILE THIS DEPARTMENT HAS AUTHORIZED AND PAID FOR TRANSPORTATION OF THE MAILS BY THE TRAINS OF THE GREAT NORTHERN AT LAND-GRANT RATES AND BY THE TRAINS OF THE NORTHERN PACIFIC NONLAND GRANT RATES, IT DEVELOPS THAT THE TWO COMPANIES TO SOME EXTENT ARE EXCHANGING THE USE OF TRACKS, THUS EFFECTING A DOUBLE- TRACK OPERATION.

GREAT NORTHERN TRAINS 18, 20, AND 24 ARE OPERATED OVER THE GREAT NORTHERN TRACKS FROM MINNEAPOLIS TO NORTHTOWN, THENCE OVER THE NORTHERN PACIFIC TRACKS TO COON CREEK, THENCE OVER GREAT NORTHERN TRACKS TO DULUTH, AND GREAT NORTHERN TRAIN 15 IS OPERATED OVER GREAT NORTHERN TRACKS FROM MINNEAPOLIS TO NORTHTOWN, THENCE OVER NORTHERN PACIFIC TRACKS TO ELK RIVER, THENCE OVER GREAT NORTHERN TRACKS TO MILACA. NORTHERN PACIFIC MAIN LINE TRAINS 2, 4, 8, 10, 12, AND 14 ARE OPERATED OVER GREAT NORTHERN TRACKS FROM ST. CLOUD TO NORTHTOWN.

IT APPEARS FROM EVIDENCE OF RECORD WITH THE PAPERS SUBMITTED THAT EACH OF THE RAILWAY COMPANIES MENTIONED OWNS A LINE OF TRACKAGE BETWEEN NORTHTOWN AND ST. CLOUD, MINN., A DISTANCE OF APPROXIMATELY 61.5 MILES, THAT SAID LINES ARE PARALLEL, AND THAT UNDER DATE OF JUNE 11, 1906, SAID COMPANIES ENTERED INTO A CONTRACTUAL AGREEMENT FOR THE JOINT OPERATION OF THE LINES BETWEEN SAID POINTS AS A DOUBLE-TRACK SYSTEM, ALL WESTBOUND TRAINS OF BOTH COMPANIES MOVING OVER TRACKS OWNED BY THE NORTHERN PACIFIC RAILWAY CO. AND ALL EASTBOUND TRAINS OF BOTH COMPANIES MOVING OVER TRACKS OWNED BY THE GREAT NORTHERN RAILWAY CO. IT ALSO APPEARS THAT THE PORTION OF THE MAIL SERVICE FURNISHED BY THE GREAT NORTHERN RAILWAY CO. ON ITS WESTBOUND TRAINS BETWEEN NORTHTOWN AND COON CREEK AND BETWEEN NORTHTOWN AND ELK RIVER IS OVER TRACKAGE OWNED BY THE NORTHERN PACIFIC RAILWAY CO., WHILE THAT FURNISHED ON EASTBOUND TRAINS BETWEEN ELK RIVER AND NORTHTOWN AND COON CREEK AND NORTHTOWN IS OVER ITS OWN TRACKAGE, AND THAT THE SERVICE FURNISHED BY THE NORTHERN PACIFIC RAILWAY CO. ON ITS WESTBOUND TRAINS BETWEEN NORTHTOWN AND ST. CLOUD IS OVER ITS OWN TRACKAGE, WHILE THAT FURNISHED BETWEEN SAID POINTS ON ITS EASTBOUND TRAINS IS OVER TRACKAGE OWNED BY THE GREAT NORTHERN RAILWAY CO.

THAT PART OF THE NORTHERN PACIFIC RAILWAY CO. INCLUDED IN THE DOUBLE TRACK HERE IN QUESTION WAS CONSTRUCTED WITHOUT GOVERNMENT AID, BUT THE GRANT OF LAND FOR THE PURPOSE OF AIDING THE CONSTRUCTION OF WHAT IS NOW KNOWN AS THE GREAT NORTHERN RAILWAY CO. WAS MADE BY THE ACT OF MARCH 3, 1857, 11 STAT. 195, AS AMENDED BY THE ACT OF MARCH 3, 1865, 13 STAT. 526, IN WHICH IT WAS PROVIDED IN SECTION 3 THAT:

* * * THE SAID RAILROADS AND BRANCHES SHALL BE AND REMAIN PUBLIC HIGHWAYS FOR THE USE OF THE GOVERNMENT OF THE UNITED STATES, FREE FROM TOLL OR OTHER CHARGE UPON THE TRANSPORTATION OF ANY PROPERTY OR TROOPS OF THE UNITED STATES.

AND IN SECTION 5---

THAT THE UNITED STATES MAIL SHALL BE TRANSPORTED OVER SAID ROADS AND BRANCHES, UNDER THE DIRECTION OF THE POST OFFICE DEPARTMENT, AT SUCH PRICE AS CONGRESS MAY BY LAW DIRECT: PROVIDED, THAT UNTIL SUCH PRICE IS FIXED BY LAW THE POSTMASTER GENERAL SHALL HAVE THE POWER TO DETERMINE THE SAME.

THE QUESTION SUBMITTED CONCERNS THE APPLICABILITY, IN THE TRANSPORTATION OF THE MAILS, OF LAND-GRANT RATES OVER TRACKAGE EITHER WHOLLY OR PARTLY CONSTRUCTED BY GOVERNMENT AID, IN THE FORM OF GRANTS OF LAND FROM THE PUBLIC DOMAIN, WHEN USED BY NON-GOVERNMENT-AIDED RAILWAYS AS WELL AS THE APPLICABILITY OF LAND-GRANT RATES TO GOVERNMENT-AIDED RAILROADS FOR TRANSPORTING THE MAILS OVER NON GOVERNMENT-AIDED LINES BETWEEN POINTS CONNECTED BY GOVERNMENT-AIDED LINES. THIS IS NOT A NEW QUESTION, AS MATTERS OF SIMILAR IMPORT HAVE BEEN THE SUBJECT OF DECISIONS BY THE COURTS. IN THE CASE OF THE ASTORIA AND COLUMBIA RIVER RAILROAD COMPANY V. UNITED STATES, REPORTED IN 41 CT.CLS. 284, WHEREIN WAS DISCUSSED THE QUESTION OF FREIGHT RATES TO WHICH THE PLAINTIFF COMPANY WAS ENTITLED FOR TRANSPORTING GOVERNMENT PROPERTY OVER LINES OF ANOTHER COMPANY WHICH WERE IN PART CONSTRUCTED BY GOVERNMENT GRANT OF LANDS, IT WAS HELD, QUOTING THE SYLLABUS, THAT:

I. THE RESTRICTIONS AND CONDITIONS OF THE ACT * * * CONCERNING FREIGHT RATES TO BE CHARGED THE GOVERNMENT BY LAND-GRANT ROADS EXTEND NOT ONLY TO THE ORIGINAL LAND-AIDED COMPANY, BUT TO ANY OTHER COMPANY CARRYING GOVERNMENT FREIGHT OVER SUCH A ROADWAY.

II. A RAILROAD COMPANY OPERATING A THROUGH LINE IN PART OVER ITS OWN TRACK AND IN PART OVER THE TRACK OF A LAND-AIDED ROAD CARRIES GOVERNMENT FREIGHT OVER THE LAND-AIDED PORTION OF ITS OWN LINE SUBJECT TO THE CONDITIONS OF THE LAND GRANT, WHICH NEITHER THE CLAIMANT NOR THE OFFICERS OF THE GOVERNMENT CAN CHANGE.

III. A LEASE OF A PORTION OF A LAND-AIDED ROAD MUST BE TAKEN SUBJECT TO THE CONDITIONS OF THE GRANT IMPOSED UPON THE LESSOR. TWO RAILROADS CAN NOT BY THEIR CONTRACTS PRACTICALLY DEFEAT THE CONDITIONS IMPOSED BY THE GRANT. THE STATUTE AUTHORIZING THE GRANT IS NOTICE TO THE LESSEE.

IV. WHERE A NONLAND-GRANT ROAD OPERATES A THROUGH LINE IN PART OVER A LAND-GRANT ROAD, THE GOVERNMENT HAS THE RIGHT TO SEND GOODS OVER THE ENTIRE LINE, AND THE NONAIDED ROAD MUST TRANSPORT THEM AT LAND-GRANT RATES, THOUGH IT NEVER RECEIVED A BENEFIT FROM AND WAS A STRANGER TO THE RANT; AND THE GOVERNMENT CAN NOT BE COMPELLED TO RESHIP AND TRANSFER THE FREIGHT AT THE POINT OF JUNCTION TO THE LAND-GRANT ROAD. AND ON PAGE 303 IT WAS SAID:

THE RIGHT TO THE USE OF THE RAILROAD BY THE GOVERNMENT AS A POST ROUTE AND MILITARY ROAD IS A RIGHT ANNEXED TO AND FORMS A PART OF THE GRANT, IN THE NATURE OF A COVENANT RUNNING WITH THE LAND--- THE ROADWAY--- AND THAT RIGHT CAN NOT BE WAIVED OR SEPARATED FROM THE RAILROAD WITHOUT THE CONSENT OF CONGRESS BY APPROPRIATE LEGISLATION.

IN THE CASE OF THE CHICAGO, SAINT PAUL, MINNEAPOLIS AND OMAHA RAILWAY COMPANY V. UNITED STATES, REPORTED IN 217 U.S. 180, WHEREIN A JUDGMENT OF THE COURT OF CLAIMS IN THE MATTER WAS AFFIRMED AND DECISION OF THE COURT OF CLAIMS REPORTED IN 41 CT.CLS. 284 APPROVED, THE SUPREME COURT OF THE UNITED STATES HELD (REFERENCE BEING MADE TO THE SYLLABUS) THAT THE ACTS THEREIN UNDER CONSIDERATION PROVIDING THAT THE MAILS SHOULD BE TRANSPORTED OVER RAILROADS CONSTRUCTED IN WHOLE OR IN PART BY AID OF LAND GRANTS AT 80 PERCENT OF THE AUTHORIZED PRICE, APPLIED TO SUCH TRANSPORTATION BY COMPANIES WHICH CARRY THE MAILS OVER A LEASED LINE WHICH WAS PARTLY CONSTRUCTED BY SUCH AID ALTHOUGH THE TRANSPORTING COMPANY ITSELF RECEIVED NO LAND-GRANT AID FROM THE GOVERNMENT AND THAT THE REDUCTION IN MAIL SERVICE WHICH THE GOVERNMENT EXACTS IN RETURN FOR LAND GRANTS FOR BUILDING RAILROADS ATTACHES TO ALL TRACKS, INCLUDING THOSE SUBSEQUENTLY BUILT, AND TO ALL COMPANIES OPERATING THERE OVER.

THE LONG-STANDING RULE THAT HAS BEEN FOLLOWED BY THE ACCOUNTING OFFICERS OF THE GOVERNMENT IN SUCH MATTERS IS THAT WHERE A RAILROAD COMPANY ACCEPTS LANDS GRANTED BY THE GOVERNMENT TO AID IN THE CONSTRUCTION OF A RAILROAD, IT THEREBY ASSENTS TO THE CONDITIONS OF THE GRANT, AND THE OBLIGATION THUS INCURRED CAN NOT BE DIMINISHED BECAUSE OF A CHANGE IN ITS ROUTE OR TRACKAGE. 17 COMP. DEC. 633; 21 ID. 238. THIS RULE HAS BEEN APPLIED IN SO FAR AS FREIGHT AND PASSENGER CHARGES ARE CONCERNED TO THE DOUBLE TRACK ARRANGEMENT IN OPERATION BETWEEN NORTHTOWN AND ST. CLOUD, MINN., OVER THE LINES OF THE NORTHERN PACIFIC RAILWAY CO. AND THE GREAT NORTHERN RAILWAY CO. INVOLVED IN THE PRESENT SUBMISSION. THE FREIGHT AND PASSENGER CHARGES THAT HAVE BEEN ALLOWED AND PAID THE NORTHERN PACIFIC RAILWAY CO. FOR TRANSPORTING GOVERNMENT SUPPLIES AND TROOPS OVER THE DOUBLE-TRACK LINES OF SAID COMPANIES BETWEEN THE POINTS MENTIONED ARE DETERMINED ON THE BASIS OF NONLAND-GRANT DEDUCTIONS ON WESTBOUND TRANSPORTATION OVER ITS OWN TRACKAGE AND ON A LAND-GRANT BASIS ON THE MOVEMENT OF SUPPLIES AND TROOPS EASTBOUND OVER THE TRACKS OF THE GREAT NORTHERN RAILWAY CO. IN THE CASE OF THE GREAT NORTHERN RAILWAY CO., FREIGHT AND PASSENGER CHARGES ON GOVERNMENT SUPPLIES AND TROOPS TRANSPORTED BY THAT COMPANY'S TRAINS EITHER WESTBOUND ON TRACKS OF THE NORTHERN PACIFIC RAILWAY CO. OR EASTBOUND OVER ITS OWN TRACKS, ARE ALLOWED ON A LAND GRANT BASIS ONLY. THE SAME RULE TAKEN IN CONNECTION WITH THE DECISIONS OF THE COURTS ABOVE REFERRED TO SHOULD BE APPLIED TO THE TRANSPORTATION OF THE MAILS OVER THE TRACKAGE IN QUESTION; THAT IS, THE RATES PAYABLE TO THE NORTHERN PACIFIC RAILWAY CO. FOR TRANSPORTING THE MAILS OVER ITS OWN TRACKAGE AND OPERATED AS A DOUBLE TRACK IN CONJUNCTION WITH THE GREAT NORTHERN RAILWAY CO. SHOULD BE DETERMINED ON A NONLAND- GRANT BASIS AND THE RATES ON THE MAILS TRANSPORTED OVER THAT PORTION OF THE SAID DOUBLE TRACKAGE OWNED BY THE GREAT NORTHERN RAILWAY CO. SHOULD BE DETERMINED ON A LAND-GRANT BASIS, WHILE UNDER THE SAME RULE THE GREAT NORTHERN RAILWAY CO. IS ENTITLED TO BE PAID RATES DETERMINED ON A LAND- GRANT BASIS FOR TRANSPORTING THE MAILS BOTH WAYS OVER THE TRACKAGE OWNED BY THE NORTHERN PACIFIC RAILWAY CO. AND ITS OWN TRACKAGE BETWEEN THE POINTS MENTIONED, AS THAT COMPANY CAN NOT, BY MEANS OF CONTRACT OR OTHERWISE, DIVEST ITSELF OF THE OBLIGATION TO TRANSPORT THE MAILS ON A LAND-GRANT BASIS BY THE USE OF NONLAND-GRANT LINES BETWEEN POINTS THAT CAN BE REACHED BY ITS OWN GOVERNMENT-AIDED LINES.