#### THE CHICAGO *&*ALTON RAILROAD COMPANY v. THE UNITED STATES.

[No. 30834.

Decided October 29, 1917.]

*On Defendant's Motion.*

*Transportation; Post Office; matt containers.*— Where certain mail containers carried on plaintiff’s road were destined for a connecting line, the station of which was more than 80 rods distant, plaintiff’s duty in connection therewith ceased when they left the cars of plaintiff, and it became the duty of the defendants under their own Postal Regulations, sections 1191 and 1192, to transfer them to their destination and to provide for their carriage, and a deduction from the compensation of the railroad of the cost of such transfer is unauthorized.

*The Reporter's*statement of the case:

The facts of the case, and the grounds for defendants’ motion are sufficiently set forth in the opinion of the court.

*491*Messrs. J. Robert Anderson*and *Joseph Stewart,*with whom was *Mr. Assistant Attorney Generad Huston Thompson,*for the motion.

The universal practice covering a long period of time has been to require the railroad performing mail service to deliver mails to and take them from intermediate post offices on the route whenever such office is located less than 80 rods from the railroad station at which the company has an agent or other representative. This has covered all mails directed by the Post Office Department to be carried between such station and post office in either direction whatever might be the ultimate destination of such mails, whether they were mails for local distribution and delivery in the post office or originating locally in the post office and intended for dispatch by the railroad line, or whether they were mails which arrived by the railroad line destined for points upon a connecting railroad line when the time between the arrival and departure of the connecting trains was sufficient to allow the connection to be made through the local post office.

This rule was not only followed by plaintiff’s predecessor during the term beginning July 1, 1908, but by the plaintiff also during the succeeding term beginning July 1, 1907, and it continued to so perform the service in accordance with this general requirement and custom until September, 1910, when it refused and failed to perform it further.

It is shown that the practice of the Post Office Department has been uniform in requiring railroad companies carrying the mails to deliver the same into intermediate post offices under the conditions named in the regulations.

The decisions of this court in a number of cases have been uniformly in support of this requirement and practice. It is true that in the cases mentioned the distinction has not heretofore arisen between local mails and transfer mails; but it is evident, in view of the universal and long-existing practice, that all mails so ordered to be carried, whether transfer or local, mails, were actually involved in the service which became the subject matter of the suits hereinafter mentioned.

*492In the case of Jacksonville, *Pensacola and Mobile Railroad Company*v. *United*States, 21 C. Cls., 155, affirmed on appeal, 118 U. S., 626, the plaintiff was authorized to transport the mails under orders of like tenor as those appearing in the case at bar.

In the *Minneapolis c& St. Louis Railway Company*case, 24 C. Cls., p. 361, the court, in the course of its opinion, relative to the claim of the company for extra compensation for carrying mails to and from intermediate post offices, said:

“The uniform practice of the department from a time long anterior to the claimant’s service had been that the delivery of mails between intermediate stations and post offices was not to be paid for in addition to the amount computed upon the mileage of the tracks and terminal offices; and that, in our opinion, is the true interpretation of the regulation plainly implied, if not expressed in terms.

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“ It is not to be overlooked that the claimant company was not one of those companies which were aided by the United States with grants of lands or issues of bonds, and so was under no obligations to carry the mails, and that it might at any time have abandoned the service if it were unwilling to accept the terms offered and imposed by the Postmaster General, as was held in the Eastern Railroad case, both by this court and the Supreme Court.” (20 C. Cls., 41; 129 U. S., 391.)

It would seem to be hardly necessary to argue so self-evident a proposition as that the routing of the mails devolved upon the Post Office Department and not upon the railroad company, yet in the last analysis this principle appears to be disputed by the contention of the plaintiff. Hereinbefore it has been shown that the Postal Laws and Regulations from a time prior to any contract relations with the plaintiff required all railroad companies to carry the mails between the railroad stations and the intermediate post-offices on its line under the conditions named.

It has been shown by the testimony of the officer of the plaintiff as well as by that, of officers of the department that this has always included the carriage of transfer mails when so ordered by the officers of the service. The adjudicated *493cases have decided that service performed by a railroad company under the orders of the Postmaster General, such as were issued in this case,, is performed in accordance with the Postal Laws and Eegulations. The logic, therefore, of plaintiff’s contention would appear to be that the routing of the transfer mails for railroad routes to connect through the local post office instead of to connect directly between the railroad stations, was not within the power of the Postmaster General or the officers of the Postal Service whenever the plaintiff chose to object thereto, as it did in 1910.

Plaintiff sues for the period beginning July 1, 1903, but the evidence shows that the operating company for the term from July 1,1903, to June 30,1907, was the Chicago & Alton *Railway*Company.

With respect to the claim from July 1, 1907, it is shown that plaintiff’s contract required it to perform the service here in question and to carry the mails to and from the Higbee post office, the same being located less than 80 rods from the railroad station; that such service was required by the Postal Laws and Eegulations, and directed by the Postmaster General; that plaintiff performed the service prior to September 1,1910; and that thereafter having refused and failed to perform the same the Post Office Department properly employed temporary service at the lowest obtainable rate, which was a reasonable one, and charged the cost thereof to the plaintiff’s account.

*Messrs. Benjamin Carter*and *Philip M.*Ashford, opposed.

Hat, *Judge,*

delivered the opinion of the court:

This case now comes before the court on the defendants’ motion for a new trial and to amend findings.

The plaintiff is suing to recover the amount which it claims it has expended in transferring certain mail containers from its railroad station to the post office at Higbee, Mo., from June 1, 1905, to September 1, 1910, and the amounts which the defendants have deducted from what is due the plaintiff for the transportation of the mail on route 145022, these amounts being what the defendants paid out for the transportation of these mail containers from September 1, 1910, to April 1, 1916.

*494The case turns upon the construction of Postal Regulations. These regulations are as follows:

> “ Sec. 1191. * * * 2. The railroad company must also take the mails from and deliver them into all intermediate post offices and postal stations located not more than eighty rods from the nearest railroad station at which the company has an agent or other representative employed. * * * 3. The department will provide for the carriage of mails to and from intermediate post offices and postal stations located more than eighty rods from the nearest railroad station; and also to and from intermediate post offices and postal stations located eighty rods or less from the railroad station when the railroad has no agent or other representative employed at such station.

> “ Sec. 1192. At connecting points where railroad stations are not over eighty rods apart, a company having mails on its train to be forwarded by the connecting tram will be required to transfer such mails and deliver them into the connecting train, or, if the connection is not immediate, to deliver them to the agent of the company to be properly dispatched by the trains of said company.”

The facts in this case are that Higbee, Mo., is a station on the railway line of the plaintiff; that it is also a station on the line of the Missouri, Kansas & Texas Railway; that the post office at Higbee is less than eighty rods from the depot of the plaintiff; that the depot of the plaintiff is more than eighty rods from the depot of the Missouri, Kansas *&*Texas Railway; and that the defendants required the plaintiff to transfer at its expense mail containers addressed to the railway post office on the Missouri, Kansas & Texas Railway. These mail containers were made up by postal employees on the road of the plaintiff and were thrown off at Higbee, addressed to the Hannibal and New Franklin railway post office, which was located on the connecting train on the Missouri, Kansas & Texas Railway. These mail containers had no mail in them for Higbee, and the postmaster at Higbee had no function to perform with respect to them. These mail containers were destined for and addressed to the connecting line of railway at Higbee. Such being their character and destination, what was the duty of the plaintiff with respect to them?

*495If the stations of the two roads had been less than 80 rods apart, it would have been the duty of the plaintiff to transfer these mail containers and to “ deliver them into the connecting train,” or, if the connection was not immediate, “ to deliver them to the agent of the company, to be properly dispatched by the trains of said company.” The regulation of the department so provides. There is not one word in it which would require the plaintiff to deliver these mails to the post office of the town where the train stops; on the contrary, it provides that this must not be done, for the very good reason that if these mails were taken to the post office instead of to the connecting train, delay would be occasioned in their transmission, and delay is what is to be avoided in dispatching mail. The above would be the duty of the plaintiff when the stations are less than 80 rods apart. What would be its duty where, as in this case, the stations are more than 80 rods apart ? Clearly, with respect to such mail containers as we are now discussing, it would have no duty to perform. When the mail containers destined for the connecting line, whose station is over 80 rods distant, leave the cars of the plaintiff, the plaintiff has nothing more to do with them; it then becomes the duty of the defendants, according to its own regulation, to transfer them to their destination and to provide for their carriage. The defendants can not place this burden upon the plaintiff, and it is difficult to understand how it was ever supposed that it could be done, in the face of the regulation of the defendants.

It is urged by the defendants that section 1191 imposes this duty upon the plaintiff; that the provision therein contained requiring the railroad company to “ take the mails from and deliver them into all intermediate post offices” imposes upon the plaintiff the duty to deliver to the post office all mail which arrives at Higbee over its railway; but this regulation means, and can mean, nothing else than that the plaintiff must deliver all mails for Higbee to the post office at that place. And if that regulation has the meaning given it by the defendants, what was the use of making the regulation contained in section 1192? If *all*mails arriving at connecting points under section 1191 are to be taken to *496the post offices, then section 1192 becomes of no effect, and the very purpose of section 1192, which is to expedite the mails, will be defeated.

For the foregoing reasons the court is of opinion that the defendants’ motion for a new trial should be and the same is hereby overruled, and the motion to amend findings allowed in part and overruled in part. The plaintiff is entitled to a judgment for the sum of $646.12; and it is so ordered.

Downey, Judge, Barney, *Judge%*and Campbell, *Chief*Justice, concur.

Booth, Judge, took no part in the decision of this case.