A-62408, JUNE 17, 1935, 14 COMP. GEN. 901

A-62408: Jun 17, 1935

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WOULD HAVE BEEN APPLICABLE OVER THE LAND-GRANT LINE. THE OLD TRACKAGE OR HIGH LINE WAS COMPLETELY ABANDONED ON APRIL 26. SINCE THAT DATE ALL TRAINS CARRYING THE MAILS HAVE BEEN OPERATED OVER THE NEW TRACKAGE. THE DISTANCE VIA THE OLD LINE WAS 15.90 MILES OR 1.29 MILES SHORTER THAN VIA THE NEW LINE. THIS TRACKAGE IS A PART OF THE LAND-GRANT MILEAGE OF THE NORTHERN PACIFIC RAILWAY COMPANY. THE TRANSPORTATION OVER SUCH SUBSTITUTED MILEAGE IS SUBJECT TO THE SAME CONDITIONS WHICH WOULD APPLY HAD THERE BEEN NO SUBSTITUTED MILEAGE. IT WOULD SEEM THAT THE LAND-GRANT RATES OF PAY FOR THE TRANSPORTATION OF THE MAILS ARE APPLICABLE TO TRAINS OPERATING OVER THE NEW TRACKAGE. FROM THE TWO CASES CITED IN THAT THE NEW MILEAGE IS LONGER THAN THE OLD MILEAGE BY 1.29 MILES.

A-62408, JUNE 17, 1935, 14 COMP. GEN. 901

TRANSPORTATION OF THE MAILS - LAND-GRANT MILEAGE WHERE A CARRIER BUILDS A NEW LINE OF RAILROAD IN LIEU OF A LAND GRANT LINE BETWEEN TWO POINTS, THE LIEU LINE BEING LONGER, AND ABANDONS SERVICE OVER THE LAND-GRANT LINE, THE CHARGE FOR THE TRANSPORTATION OF THE MAILS OVER THE LIEU LINE MAY NOT EXCEED THE CHARGE WHICH, BUT FOR THE ABANDONMENT, WOULD HAVE BEEN APPLICABLE OVER THE LAND-GRANT LINE.

COMPTROLLER GENERAL MCCARL TO THE POSTMASTER GENERAL, JUNE 17, 1935:

THERE HAS BEEN RECEIVED YOUR LETTER OF MAY 24, 1935, AS FOLLOWS:

DUE TO THE CONSTRUCTION BY THE NORTHERN PACIFIC RAILWAY COMPANY OF A NEW TRACK BETWEEN PINEHURST AND TROUT CREEK, MONTANA, 17.19 MILES IN LENGTH AND KNOWN AS THE LOW LINE, THE OLD TRACKAGE OR HIGH LINE WAS COMPLETELY ABANDONED ON APRIL 26, 1928, AND SINCE THAT DATE ALL TRAINS CARRYING THE MAILS HAVE BEEN OPERATED OVER THE NEW TRACKAGE. THE DISTANCE VIA THE OLD LINE WAS 15.90 MILES OR 1.29 MILES SHORTER THAN VIA THE NEW LINE. THIS TRACKAGE IS A PART OF THE LAND-GRANT MILEAGE OF THE NORTHERN PACIFIC RAILWAY COMPANY.

IN VIEW OF YOUR DECISIONS CONTAINED IN CASES A-24142 OF SEPTEMBER 10, 1928 AND A-36852 OF JUNE 23, 1931, TO THE EFFECT THAT WHEN A LAND GRANT ROAD, FOR PURPOSES OF ITS OWN, USES SUBSTITUTED MILEAGE FOR LAND GRANT MILEAGE, THE TRANSPORTATION OVER SUCH SUBSTITUTED MILEAGE IS SUBJECT TO THE SAME CONDITIONS WHICH WOULD APPLY HAD THERE BEEN NO SUBSTITUTED MILEAGE, IT WOULD SEEM THAT THE LAND-GRANT RATES OF PAY FOR THE TRANSPORTATION OF THE MAILS ARE APPLICABLE TO TRAINS OPERATING OVER THE NEW TRACKAGE.

THE INSTANT CASE DIFFERS, HOWEVER, FROM THE TWO CASES CITED IN THAT THE NEW MILEAGE IS LONGER THAN THE OLD MILEAGE BY 1.29 MILES, WHEREAS IN BOTH OF THE CASES CITED THE MILEAGE VIA THE SUBSTITUTED LINE WAS SHORTER.

PAYMENT FOR THE TRANSPORTATION OF THE MAILS BY RAILROADS IS MADE ON A MILEAGE BASIS AS REQUIRED BY LAW AND IN TRANSFERRING THE SERVICE FROM THE OLD TO THE NEW LINE FROM APRIL 26, 1928, THE SERVICE WAS AUTHORIZED ON THE BASIS OF THE NEW OR LONGER MILEAGE. HOWEVER, IN VIEW OF THE FACT THAT AN ADDITIONAL EXPENSE TO THE GOVERNMENT IS INVOLVED, YOUR DECISION IS REQUESTED AS TO WHETHER MAIL PAY OVER THE SUBSTITUTED TRACKS BETWEEN PINEHURST AND TROUT CREEK, MONTANA, SHOULD BE AUTHORIZED AT LAND-GRANT RATES OF PAY ON THE BASIS OF 17.19 MILES, THE ACTUAL MILEAGE, OR SHOULD BE CONTINUED ON THE BASIS OF THE MILEAGE (15.90 MILES) IN EFFECT PRIOR TO THE CONSTRUCTION OF THE NEW TRACKAGE.

IT APPEARS THAT THE LAND-GRANT LINE FROM PINEHURST, MONT., TO TROUT CREEK, MONT., WHICH HAS NOW BEEN ABANDONED WAS CONSTRUCTED AS A PART OF THE LINE OF RAILROAD FROM ASHLAND, WIS., TO TACOMA, WASH., FOR AID IN THE CONSTRUCTION OF WHICH GRANTS OF LAND WERE AUTHORIZED BY THE CONGRESS IN THE ACT OF JULY 2, 1864, 13 STAT. 365. SECTION 11 OF SAID ACT PROVIDED:

AND BE IT FURTHER ENACTED, THAT SAID NORTHERN PACIFIC RAILROAD, 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.

IN SECTION 20, THE OBJECT OF THE ACT WAS STATED TO BE---

TO PROMOTE THE PUBLIC INTEREST AND WELFARE BY THE CONSTRUCTION OF SAID RAILROAD AND TELEGRAPH LINE, AND KEEPING THE SAME IN WORKING ORDER, AND TO SECURE TO THE GOVERNMENT AT ALL TIMES (BUT PARTICULARLY IN TIME OF WAR) THE USE AND BENEFITS OF THE SAME FOR POSTAL, MILITARY AND OTHER PURPOSES,

BY THE ACT OF JULY 28, 1916, 39 STAT. 412, 426, THE COMPENSATION OF LAND- GRANT ROADS FOR TRANSPORTATION OF THE MAIL WAS FIXED AT 80 PERCENT OF THE AMOUNT OTHERWISE AUTHORIZED BY SAID ACT AS FOLLOWS:

RAILROAD COMPANIES WHOSE RAILROADS WERE CONSTRUCTED IN WHOLE OR IN PART BY A LAND GRANT MADE BY CONGRESS, ON THE CONDITION THAT THE MAILS SHOULD BE TRANSPORTED OVER THEIR ROADS AT SUCH PRICE AS CONGRESS SHOULD BY LAW DIRECT, SHALL RECEIVE ONLY EIGHTY PERCENTUM OF THE COMPENSATION OTHERWISE AUTHORIZED BY THIS SECTION.

PAYMENT FOR THE TRANSPORTATION OF THE MAILS IS REQUIRED TO BE MADE ON A MILEAGE BASIS AS DISTINGUISHED FROM FREIGHT OR PASSENGER TRANSPORTATION, THE RATES AND FARES FOR WHICH ARE NOT NECESSARILY ON SUCH BASIS. OPERATION OF THE STATUTORY CONDITIONS UPON WHICH LANDS FOR THE CONSTRUCTION OF THE LINE NOW ABANDONED WERE GRANTED AND IN CONFORMITY WITH THE PROVISIONS OF THE ACT OF JULY 28, 1916, SUPRA, THE GOVERNMENT BECAME ENTITLED TO HAVE THE MAILS TRANSPORTED OVER THE NOW ABANDONED LINE AT A COMPENSATION LIMITED TO 80 PERCENT OF THE AMOUNT OTHERWISE ACCRUING AT APPLICABLE MILEAGE RATES FOR THE ACTUAL NUMBER OF MILES OCCURRING IN SAID LINE. IT WAS HELD IN 10 COMP. GEN. 552, THAT WHERE A LAND-GRANT RAILROAD 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, CITING UNITED STATES V. NORTHERN PACIFIC RAILROAD COMPANY, 30 FED.REP./2D) 655, REHEARING DENIED 32 FED.REP./2D) 695. THE SUBSTITUTED MILEAGE INVOLVED IN 10 COMP. GEN. 552, WAS LESS THAN THE ORIGINAL LAND-GRANT MILEAGE IN LIEU OF WHICH THE CUT-OFF WAS CONSTRUCTED AND IT WAS ACCORDINGLY HELD THAT THE AMOUNT ACCRUING TO THE CARRIER FOR SERVICE OVER THE SUBSTITUTED NONLAND-GRANT LINE SHOULD BE ON THE BASIS OF THE ACTUAL MILEAGE INVOLVED IN THE CUT-OFF AND AT 80 PERCENT OF THE MILEAGE RATES OTHERWISE APPLICABLE OVER THE NONLAND-GRANT SUBSTITUTE LINE.

AS YOU HAVE STATED, THE MILEAGE VIA THE SUBSTITUTED LINE HERE IS GREATER THAN THAT VIA THE ORIGINAL LAND-GRANT LINE NOW ABANDONED AND YOUR QUESTION, THEREFORE, IS AS TO WHETHER THE CARRIER IS ENTITLED TO BE PAID FOR THE TRANSPORTATION OF THE MAILS OVER THE SUBSTITUTED AND LONGER NONLAND-GRANT LINE ON THE BASIS OF THE LAND-GRANT RATE PER MILE FOR THE NUMBER OF MILES OCCURRING IN THE SUBSTITUTED LINE,INDICATED IN YOUR LETTER AS BEING 17.19 MILES, OR AT THE LAND-GRANT RATE PER MILE FOR THE NUMBER OF MILES OCCURRING IN THE ABANDONED LAND-GRANT LINE, INDICATED AS BEING 15.90 MILES.

IT IS WELL SETTLED THAT WHERE A RAILROAD HAS BEEN CONSTRUCTED WITH AID OF GRANTS OF LAND MADE UPON THE CONDITION THAT THE GOVERNMENT SHALL BE ENTITLED TO REDUCED RATES FOR TRANSPORTATION OVER SAID ROAD THE RIGHT OF THE GOVERNMENT TO THE BENEFIT OF THE REDUCTION IN THE RATES SO AFFORDED MAY NOT BE AVOIDED OR MODIFIED PREJUDICIALLY TO THE UNITED STATES BY THE EXPEDIENT OF THE CARRIER ABANDONING SERVICE OVER SAID LAND-GRANT ROAD AND SUBSTITUTING IN LIEU THEREOF SERVICE OVER A NEW LINE.

IN THE INSTANT MATTER, THE GOVERNMENT WAS ENTITLED TO THE TRANSPORTATION OF THE MAILS OVER THE LAND-GRANT AIDED LINE NOW ABANDONED AT THE LAND- GRANT RATE PER MILE FOR THE NUMBER OF MILES OCCURRING THEREIN. IT IS APPARENT THAT IF AS A RESULT OF THE ABANDONMENT OF SAID ROAD, THE GOVERNMENT IS TO BE REQUIRED TO PAY AT THE LAND-GRANT RATE PER MILE FOR THE TOTAL MILEAGE OCCURRING IN THE LONGER AND SUBSTITUTED ROUTE, THE RIGHT TO TRANSPORTATION--- AT THE CHARGE WHICH WOULD HAVE BEEN APPLICABLE BUT FOR THE ABANDONMENT--- HAS BEEN LOST. THIS WOULD BE IN VIOLATION OR ABROGATION OF THE RIGHTS WHICH BECAME VESTED UPON ACCEPTANCE OF THE GRANTS OF LAND, AND IN CONTRAVENTION OF THE PURPOSE STATED IN THE LAND-GRANT ACT "TO SECURE TO THE GOVERNMENT AT ALL TIMES * * * THE USE AND BENEFITS" OF THE LINE CONSTRUCTED WITH THE AID OF GRANTS OF LAND THEREIN AUTHORIZED.

ACCORDINGLY, YOU ARE ADVISED THAT THE CARRIER THROUGH THE ABANDONMENT OF THE LAND-GRANT LINE AND THE SUBSTITUTION FOR ITS OWN PURPOSES OF SERVICE VIA THE LIEU LINE MAY NOT DEPRIVE THE GOVERNMENT OF THE BENEFIT OF THE REDUCED CHARGES FOR THE TRANSPORTATION OF THE MAILS WHICH WOULD BE APPLICABLE BUT FOR THE ABANDONMENT AND THAT IN SUCH CIRCUMSTANCES THE CHARGE THAT WOULD BE APPLICABLE ON THE BASIS OF THE LAND-GRANT RATE FOR THE MILEAGE OVER THE LAND-GRANT ROAD AS ORIGINALLY CONSTRUCTED AND NOW ABANDONED CONSTITUTES THE MAXIMUM THAT MAY BE ALLOWED FOR THE SUBSTITUTED SERVICE OVER THE LIEU LINE. THAT IS TO SAY, THE COMPENSATION OF THE CARRIER SHOULD BE COMPUTED ON THE BASIS OF THE LAND-GRANT RATE FOR THE NUMBER OF MILES OCCURRING IN THE ABANDONED LAND-GRANT LINE, INDICATED IN YOUR LETTER AS BEING 15.90 MILES, AND NOT ON THE BASIS OF THE GREATER MILEAGE VIA THE SUBSTITUTED LINE. SEE THE ABOVE-CITED NORTHERN PACIFIC RAILROAD CO. CASE.