A-36852, JUNE 23, 1931, 10 COMP. GEN. 552

A-36852: Jun 23, 1931

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TRANSPORTATION OF THE MAILS - LAND-GRANT MILEAGE PAYMENT FOR TRANSPORTATION OF THE MAILS IS REQUIRED TO BE MADE ON A MILEAGE BASIS AND WHERE A LAND-GRANT RAILROAD SUBSTITUTES NONLAND-GRANT TRACKS FOR LAND-GRANT MILEAGE AND BUILDS CUT-OFFS OVER NONLAND GRANTS. SUCH MILEAGE IS MILEAGE SUBSTITUTED FOR THE ORIGINAL LAND-GRANT MILEAGE AND PAYMENTS WILL BE MADE AT THE LAND-GRANT RATES FOR THE ACTUAL MILEAGE INVOLVED AS IF IT WAS LAND-GRANT MILEAGE. IS STATED AT LAND GRANT RATES OF PAY FOR THAT PART OF THE MILEAGE FROM ST. LOUIS AND KANSAS CITY ARE NOW OPERATED VIA THE NEW CUT- OFF. THE DISTANCE FROM JEDBURG JUNCTION VIA GLENCOE TO EUREKA JUNCTION OVER THE OLD LINE IS 4.93 MILES. JEDBURG JUNCTION AND EUREKA JUNCTION ARE INTERMEDIATE POINTS ON THAT PART OF THE LINE BETWEEN ST.

A-36852, JUNE 23, 1931, 10 COMP. GEN. 552

TRANSPORTATION OF THE MAILS - LAND-GRANT MILEAGE PAYMENT FOR TRANSPORTATION OF THE MAILS IS REQUIRED TO BE MADE ON A MILEAGE BASIS AND WHERE A LAND-GRANT RAILROAD SUBSTITUTES NONLAND-GRANT TRACKS FOR LAND-GRANT MILEAGE AND BUILDS CUT-OFFS OVER NONLAND GRANTS, SUCH MILEAGE IS MILEAGE SUBSTITUTED FOR THE ORIGINAL LAND-GRANT MILEAGE AND PAYMENTS WILL BE MADE AT THE LAND-GRANT RATES FOR THE ACTUAL MILEAGE INVOLVED AS IF IT WAS LAND-GRANT MILEAGE.

COMPTROLLER GENERAL MCCARL TO THE POSTMASTER GENERAL, JUNE 23, 1931:

THERE HAS BEEN RECEIVED, SUPPLEMENTED BY LETTER OF JUNE 12, 1931, YOUR SUBMISSION OF MAY 25, 1931, AS FOLLOWS:

MAIL SERVICE PERFORMED IN TRAINS OF THE MISSOURI PACIFIC RAILROAD COMPANY BETWEEN ST. LOUIS AND KANSAS CITY, MISSOURI, IS STATED AT LAND GRANT RATES OF PAY FOR THAT PART OF THE MILEAGE FROM ST. LOUIS TO PACIFIC AND AT NONLAND GRANT OR REGULAR RATES OF PAY FROM PACIFIC TO KANSAS CITY. RECENTLY, THE COMPANY CONSTRUCTED A NEW CUT-OFF TRACK FROM JEDBURG JUNCTION TO EUREKA JUNCTION, A DISTANCE OF 2.99 MILES, AND ALL THROUGH TRAINS BETWEEN ST. LOUIS AND KANSAS CITY ARE NOW OPERATED VIA THE NEW CUT- OFF. THE DISTANCE FROM JEDBURG JUNCTION VIA GLENCOE TO EUREKA JUNCTION OVER THE OLD LINE IS 4.93 MILES. (SEE BLUE PRINT HEREWITH.)

JEDBURG JUNCTION AND EUREKA JUNCTION ARE INTERMEDIATE POINTS ON THAT PART OF THE LINE BETWEEN ST. LOUIS AND PACIFIC BETWEEN WHICH POINTS THE LAND- GRANT RATES ARE APPLIED. IN RESTATING THE SERVICE IN THE THROUGH TRAINS OPERATING VIA THE CUT-OFF, THE DEPARTMENT CONSIDERED THE SHORTENED DISTANCE AS A SUBSTITUTE FOR THAT PART OF THE ORIGINAL LINE BETWEEN JEDBURG JUNCTION AND EUREKA JUNCTION AND RESTATED THE DISTANCE AND PAY ON THE BASIS OF THE CUT-OFF MILEAGE BETWEEN ST. LOUIS AND PACIFIC AT LAND- GRANT RATES OF PAY. THE OLD TRACKAGE VIA GLENCOE IS STILL BEING USED FOR CERTAIN LOCAL TRAINS AND NO CHANGE WAS MADE IN THE MILEAGE AND PAY FOR MAIL SERVICE IN THOSE TRAINS.

THERE ARE TRANSMITTED HEREWITH TWO LETTERS FROM THE MISSOURI PACIFIC RAILROAD COMPANY DATED APRIL 23, 1931, AND ACCOMPANYING BLUE PRINT, IN WHICH THE COMPANY PROTESTS AGAINST THE ACTION TAKEN BY THIS DEPARTMENT. THE COMPANY CONTENDS IN ONE LETTER THAT THE NONLAND-GRANT RATES OF PAY SHOULD BE APPLIED TO THE MILEAGE OF THE NEW CUT-OFF AND IN THE OTHER, THAT IF THE DECISION OF THE COMPTROLLER GENERAL IN THE LITTLE ROCK-FORT SMITH SERVICE WERE APPLIED TO THIS CASE, THE COMPANY SHOULD RECEIVE PAY AT LAND- GRANT RATES ON THE BASIS OF THE OLD LAND GRANT MILEAGE. THE COMPANY REFERS TO YOUR DECISION OF JUNE 13, 1930, IN CASE A-31790.

THE ACTION TAKEN IN THIS CASE APPEARS TO BE IN LINE WITH YOUR RULING OF SEPTEMBER 10, 1928, CASE A-24142, WHICH RELATED TO THE QUESTION OF LAND- GRANT MILEAGE BETWEEN BOONE AND OGDEN, IOWA, ON THE LINE OF THE CHICAGO AND NORTH WESTERN RAILWAY.

YOUR DECISION IS REQUESTED AS TO WHETHER MAIL PAY FOR SERVICE IN THE TRAINS OPERATING VIA THE CUT-OFF BETWEEN JEDBURG JUNCTION AND EUREKA JUNCTION SHOULD BE STATED AT LAND-GRANT RATES OF PAY ON THE BASIS OF THE SHORTER MILEAGE, OR WHETHER THE OLD LAND-GRANT MILEAGE SHOULD BE USED WITHOUT REFERENCE TO THE ACTUAL OPERATION OF THE TRAINS VIA THE CUT-OFF.

THE PRESENT MISSOURI PACIFIC RAILROAD BETWEEN ST. LOUIS AND PACIFIC, MO., IS THE SUCCESSOR OF A ROAD INCORPORATED BY CHARTER OF MARCH 12, 1849, UNDER THE NAME OF THE PACIFIC RAILROAD CO. TO BUILD A RAILROAD FROM ST. LOUIS TO JEFFERSON CITY, MO., THENCE WESTWARD TO THE WESTERN BOUNDARY OF THE STATE, AND BY ACT OF JUNE 10, 1852, 10 STAT. 8, THE UNITED STATES MADE A GRANT OF LAND TO AID THE CONSTRUCTION OF A RAILROAD FROM THE CITY OF ST. LOUIS TO SUCH POINT ON THE WESTERN BOUNDARY OF THE STATE AS MIGHT BE DESIGNATED BY THE STATE AUTHORITIES. THIS GRANT WAS IN THE USUAL TERMS, WITH THE CONDITION THAT THE RAILROAD SHOULD BE AND REMAIN A PUBLIC HIGHWAY FOR THE USE OF THE GOVERNMENT OF THE UNITED STATES FREE FROM TOLL OR OTHER CHARGES UPON THE TRANSPORTATION OF ANY PROPERTY OR TROOPS OF THE UNITED STATES, AND THAT THE UNITED STATES MAIL SHOULD AT ALL TIMES BE TRANSPORTED ON SAID RAILROAD UNDER THE DIRECTION OF THE POST OFFICE DEPARTMENT AT SUCH PRICES AT CONGRESS MIGHT BY LAW DIRECT. BY ACT OF JULY 28, 1916, 39 STAT. 426, PAYMENTS TO SUCH LAND-GRANT RAILROADS WERE AUTHORIZED TO BE MADE AT 80 PERCENT OF THE COMPENSATION OTHERWISE AUTHORIZED FOR THE TRANSPORTATION OF THE MAIL.

THE RAILROAD WAS OPENED IN JULY, 1853, FROM ST. LOUIS, MO., TO PACIFIC, MO., A DISTANCE OF 37 MILES, AND THE ENGINEERING RECORD OF THE ROAD AS CORRECTED BY CORRECTION NO. 37, DATED SEPTEMBER 25, 1930, SHOWS THAT THE INITIAL POINT OF CONSTRUCTION OF THIS RAILROAD WAS SOMEWHAT EAST OF THE PRESENT FREIGHT STATION AT SEVENTH STREET, AND THAT WHILE THE CURRENT DISTANCE FROM PACIFIC TO SEVENTH STREET IS SHOWN AS 36.80 MILES, THE DISTANCE OF THE CONSTRUCTED ROAD FOR WHICH LANDS WERE GRANTED WAS 37 MILES. WHEN THE STATION AT SEVENTH STREET WAS BUILT, THE DISTANCE TO PACIFIC WAS SHORTENED TO 36.82 MILES, AND WHEN THE UNION STATION AT ST. LOUIS WAS BUILT PASSENGER SERVICE FROM THE SEVENTH STREET STATION WAS DISCONTINUED AND THE TRAINS REACHED THE UNION STATION OVER THE TRACKS DIVERGING FROM THE LAND-GRANT LINE AT TWENTY-THIRD STREET. SUBSEQUENTLY, THE CONNECTING TRACK TO THE UNION STATION WAS RELOCATED AND DIVERGED FROM THE LAND-GRANT LINE NEAR JEFFERSON AVENUE AT A POINT DESIGNATED "U.S. CONN., " WHICH IS 35.55 MILES FROM PACIFIC AND 0.03 MILE WEST FROM THE OLD CONNECTION AT TWENTY-THIRD STREET, WHICH WAS 35.58 MILES FROM PACIFIC AND 1.42 MILES FROM THE INITIAL POINT OF CONSTRUCTION. THIS CONNECTION WAS LATER CHANGED TO A POINT IN THE VICINITY OF JEFFERSON AVENUE AND THE TRAINS NOW REACH THE UNION PASSENGER STATION OVER 0.68 MILE OF THE TRACKS OF THE TERMINAL RAILROAD ASSOCIATION OF ST. LOUIS.

THE DISTANCE OVER THE OLD LINE AND THE TERMINAL RAILWAY ASSOCIATION TRACKS FROM THE UNION PASSENGER STATION TO PACIFIC, MO., WAS 36.18 MILES PRIOR TO THE CONSTRUCTION OF THE JEDBURG-EUREKA CUT-OFF WHICH REDUCED THE MILEAGE 1.94 MILES, MAKING THE DISTANCE 34.24 MILES AFTER SUCH CONSTRUCTION. IN OTHER WORDS, THE ENTIRE DISTANCE FROM ST. LOUIS UNION PASSENGER STATION TO PACIFIC WAS 36.18 MILES BEFORE THE CONSTRUCTION OF THE JEDBURG CUT-OFF AND 34.24 MILES AFTER ITS CONSTRUCTION, BEING 0.68 MILE FROM UNION STATION TO UNION STATION CONNECTION AND 33.56 MILES FROM UNION STATION CONNECTION VIA JEDBURG CUT-OFF TO PACIFIC. THIS IS SHOWN BY THE FOLLOWING TABLE:

TABLE OLD LAND-GRANT DISTANCE: MILES NEW LAND-GRANT DISTANCE: MILES

PACIFIC ---------------- 0.00 PACIFIC ----------------- 0.00

EUREKA ----------------- 6.90 EUREKA ------------------ 6.92

GLENCOE ---------------- 10.30 GLENCOE ----------------- 10.25

JEDBURG ---------------- 12.61 JEDBURG ----------------- 10.70

VALLEY PARK ------------ 17.90 VALLEY PARK ------------- 15.90

KIRKWOOD --------------- 23.30 KIRKWOOD ---------------- 21.38

CARONDALET BR.JCT. ----- 23.70 TOWER GROVE ------------- 31.34

ST. L.O.H. AND C. JCT. - 33.24 U.S. CONN. -------------- 33.56

TOWER GROVE ------------ 33.33 UNION STA. -------------- 34.24

UNION STATION CONN. ---- 35.55

23RD STREET CONN. ------ 35.58

7TH STREET ------------- 36.82

END OF GRANT ----------- 37.00

IT WOULD SEEM TO BE TOO CLEAR FOR SERIOUS ARGUMENT THAT OF THE DISTANCES SHOWN AFTER THE CUT-OFF OR THE CURRENT MILEAGE USED BY THE ROAD, 2.99 MILES OVER THE CUT-OFF BETWEEN EUREKA AND JEDBURG AND THE 0.68 MILE FROM UNION STATION CONNECTION TO THE UNION STATION, OR A TOTAL OF 3.67 MILES IS NOT OVER THE LAND-GRANT LINE, BUT IT IS EQUALLY CLEAR THAT THE NEW MILEAGE OF 3.67 MILES WAS SUBSTITUTED FOR MILEAGE OVER THE ORIGINAL LINE FOR WHICH GRANTS OF PUBLIC LANDS WERE MADE. 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, WHICH WAS CITED IN THE DECISION OF JUNE 13, 1930.

PAYMENT FOR THE TRANSPORTATION OF THE MAILS IS REQUIRED TO BE MADE ON A MILEAGE BASIS, AS DISTINGUISHED FROM FREIGHT OR PASSENGER TRANSPORTATION WHERE THE RATES AND FARES ARE NOT NECESSARILY ON A MILEAGE BASIS. THE NONLAND-GRANT MILEAGE OF 0.68 MILE IN ST. LOUIS AND 2.99 MILES OVER THE JEDBURG-EUREKA CUT-OFF ARE MILEAGES SUBSTITUTED FOR THE ORIGINAL LAND- GRANT MILEAGE, AND IN MAKING THE SUBSTITUTION THE RAILROAD COMPANY HAS SHORTENED ITS LINE FROM THE ORIGINAL LAND-GRANT DISTANCE OF 37 MILES TO THE NEW DISTANCE OF 34.24 MILES, BUT THE RAILROAD COMPANY IS NOT ENTITLED TO ABANDON THE ORIGINAL LAND-GRANT MILEAGE FOR THE PURPOSE OF TRANSPORTATION OF MAIL AND CHARGE THE UNITED STATES THE FULL RATE FOR TRANSPORTATION OF THE MAIL OVER SUCH PART OF THE LINE AS WAS PLACED ON LANDS ACQUIRED BY IT FOR THE PURPOSE OF ABANDONING PART OF THE OLD LINE. THE PRINCIPLE STATED IN THE DECISION OF JUNE 13, 1930, IS APPLICABLE THAT WHERE MAILS ARE TRANSPORTED OVER THE SUBSTITUTED MILEAGE THE UNITED STATES, FOR THE PURPOSE OF PAYING THE CHARGES FOR THE TRANSPORTATION OF THE MAIL, WILL USE THE ACTUAL MILEAGE INVOLVED, IN THIS CASE 34.24 MILES BETWEEN ST. LOUIS AND PACIFIC AS LAND-GRANT MILEAGE, AND PAY THE RATES PRESCRIBED IN THE APPLICABLE ORDERS OF THE INTERSTATE COMMERCE COMMISSION REDUCED 20 PERCENT UNDER THE AUTHORITY OF THE ACT OF JULY 28, 1916, 39 STAT. 426.

ANSWERING YOUR QUESTION SPECIFICALLY, YOU ARE ADVISED THAT THE MISSOURI PACIFIC RAILROAD CO. IS NOT ENTITLED TO MORE THAN 80 PERCENT OF THE COMPENSATION FIXED FOR THE TRANSPORTATION OF MAIL BETWEEN ST. LOUIS AND PACIFIC, MO., ON A TOTAL MILEAGE OF 34.24 MILES, NOTWITHSTANDING 0.68 MILE IN ST. LOUIS AND 2.99 MILES OVER THE JEDBURG EUREKA CUT-OFF ARE NOT ON THE ORIGINAL LAND GRANT FOR SUCH MILEAGE AGGREGATING 3.67 MILES IS SUBSTITUTED MILEAGE FOR THE ORIGINAL LAND GRANT MILEAGE.