#### ILLINOIS CENTRAL RAILROAD COMPANY v. THE UNITED STATES.

[No. 33210.

Decided January 15, 1917.]

*On Defendants’ Demurrer.*

*Army; transportation of mounts.*— In the absence of any statute authorizing payment for the transportation of mounts, the private property of officers of the Army, the Secretary of War can not, by the promulgation of a regulation, bind the Government to the payment of such transportation.

*Army Regulation.*— There being no authority permitting the head of a department to require from the Government the payment of any money for any purpose not authorized by law, paragraph 1098, Army Regulations, is invalid and of no effect.

*The Ref Grier’s*statement of the case:

The facts of the case and the averments of the petition to which defendants demur are sufficiently set forth in the opinion of the court.

*Mr. Horace 8. Whitman,*with whom was *Mr. Assistant Attorney General Thompson,*for the demurrer.

*Mr. William E. Harvey*opposed. *King dk King*were on the briefs.

*54In this case the issue of law is a. very narrow one and it can best be considered by looking first to the question as to what the obligation of the railroad company is towards the United States with respect to furnishing transportation based upon land grants ma'de to the road.

The grants to the road were made by the United States on conditions “that the said railroad and branches shall 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 ” (sec. 4, act of Sept. 20,1850, 9 Stat. L., 466, 467). Under this grant the free transportation is to be furnished only for “ any property or troops of the United States.” Property of the United States is to be read as property belonging to the United States. *State*v. *King,*51 Atl. R., 1102, 1103; 95 Md. 125.

It is alleged in the petition and the fact is admitted by the demurrer that “ the freight as transported was the personal property of the officer of the United States Army above named and was not the property of the United States.” We do not see that this case can be distinguished in principle from the case of the *Alabama Great Southern*Railroad, 49 C. Cls., 522, wherein the court held that land-grant deductions could not be made for the transportation of militia of the several States and Territories, holding expressly “they were not in the service or troops of the United States.” Not being troops of the United States, the court held that the land-grant deductions were not authorized. Neither can this case be differentiated from the decision of this court in the cases of the *Chicago, Milwaukee and St. Paul Railway Company,*No. 32975, decided February 8, 1915, and *Louis• ville (& Nashville Railroad Co.,*No. 33034, decided March 1, 1915.

Counsel for the United States in his brief does not attempt to draw a distinction between the principles in the decided cases and the case at bar and bases his argument upon the proposition that as the officer was required to be mounted, his mount was a necessary part *of his*military equipment and because the officer purchased them counsel *55argues that it does not affect the status of these accouterments and equipment.

That is not the question involved. The question involved is whether privately owned property becomes property of the United States because it happens to be a part of the owner’s military equipment. If it is property of the United States, the United States can dispose of it. If it is the personal property of the officer, the United States can not dispose of such property, notwithstanding the fact that it is a part of the officer’s equipment.

The act of September 20, 1850, is a part of the contract between the United States and the claimant company, by virtue of which in considering the land grant the railroad undertook to furnish transportation at reduced rates in the cases therein specified, but in no other cases. The scope of the obligation can not be increased by any regulation, or even legislation by Congress. It can only be done by a mutual agreement between the parties.

In *Chicago db Northwestern Railway*v. *United*States, 104 U. S. 680, and Chicago, *Milwaukee db St. Paul Railway*v. *United*States, 104 U. S. 687, the Supreme Court decided that it was not within the power of the Government to change or abrogate by its own legislation contract relations previously entered into with a railroad company for transportation.

“ In no other mode could the contract be changed except by the mutual assent of the parties. Any change attempted by either otherwise would have been merely a breach of the agreement and the United States would have been liable for damages for its breach on the same principles and to the same extent as a private party, for which a suitable remedy was provided by law in the jurisdiction conferred upon the Court of Claims. In this respect the relation between the parties was that of perfect equality in right.” (Ib., p. 685.)

In the case of *Red Rock*v. Henry, 106 U. S. 596, the State of Minnesota by legislation undertook to change the condition for the issuance of bonds, which had been authorized by legislation, after the railroads had complied with the conditions under which the bonds were to be issued. The Supreme Court said:

*56“ The amendatory act of March 2, 1871, with its repealing clause, can have no effect on this controversy. That act was passed more than sis months after the company had fully complied with all the conditions upon which the town of Red Rock had agreed to issue its bonds. It was too late then for the legislature to interfere. The company was entitled to bonds and any attempt by the legislature to forbid their issue would have been unconstitutional and void.” (Ib., p. 604.)

We respectfully submit that the act of 1850 limited land-grant deductions to the matters referred to therein, to wit, property and troops of the United States; that these terms do not include personal property of an individual, even though he be an officer of the Army and entitled under the regulations to have certain property belonging to him transported at the expense of the United States; and that the United States can not enlarge, either by regulations or law, the obligation of the railroad company.

Hay, Judge,

delivered the opinion of the court:

The claimant in this case, the Illinois Central Railroad Company, is suing for the recovery of $49.19, it being the amount deducted from the sum of $93.25, the amount charged by the claimant for the transportation of two horses and an enlisted man, in whose charge they were, from Texas City, Tex., to Murpheysboro, Ill. The two horses were the projiertjr of First Lieut. Guy L. Qualls, Medical Corps, U. S. Army. Lieut. Qualls had been ordered for service over the seas. The defendant demurred to the petition on the ground that the allegations of the petition do not state a cause of action.

It is claimed by the plaintiff that the defendant is liable for the amount claimed by it, because the two horses transported by the plaintiff were the property of an officer of the Army required to be mounted and entitled to two mounts, and that by virtue of paragraph 1098 of the Army Regulations he was entitled to have the horses transported at Government expense.

The act approved April 27, 1914, contains this provision:

> “ Hereafter private mounts of officers in excess of the authorized mounts may be shipped on Government bill of lad-*57lug with authorized mounts and reimbursement collected for transportation charges on such excess mounts.”

This statute by its terms applies to mounts in excess of the authorized mounts of officers and plainly applies to officers who are changing stations, and has no relation to authorized mounts being shipped by officers who are ordered “ over the seas,” to their homes, or to any other place in the United States. Indeed, the enactment of this law goes to show that it was necessary to have the authority of law for the transportation of excess mounts on change of station, and that such transportation could not legally be provided for by regulation. If that was necessary, then certainly it would appear that the transportation of privately owned horses to points in the United States must be provided for by law, and that no regulation with respect to such transportation is legal.

It is true that paragraph 1098 of the Army Regulations does provide as follows:

> “ 6. Officers ordered for extended service over the seas or to Alaska, if they so desire, may have their authorized mounts transported from their old stations to any designated point in the United States for safe-keeping, and upon their return transported to their new stations in the United States.”

In the absence of any statute authorizing the payment for the transportation of horses which are the property of officers of the Army and not the property of the United States, and in the absence of any provision in the appropriation acts, can the Secretary of War by the promulgation of a regulation bind the Government for the payment of the transportation of horses, the private property of Army officers?

This court has repeatedly passed upon the effect of regulations of the executive departments. It has uniformly held that such regulations could only have the force and effect of law when they are not in contravention to existing law and when they are promulgated for the purpose of carrying into effect the law in respect to which they are promulgated.

Eegulations of executive departments are for the government of the conduct of their clerks and officers, the distribu*58tion and performance of their business, and to the detail of service; but even so, regulations must not be inconsistent with law, but must conform to the law. Nor can the head of an executive department nor the President exercise legislative power or authority by regulation when it is clear that the power so exercised is purely legislative. In *Symonds’*case, 21 C. Cls., 148, 152, it is said:

> “ The regulations of the Army and the regulations of the Navy are given the force and effect of law when they apply to mere detail of service which has not been regulated by positive enactment.”

> “ The authority of the President to make regulations is subject to the condition, necessarily implied, that they must be consistent with the statutes which have been enacted by Congress, and must be in execution of and supplementary to, but not in conflict with, the statutes.” *Romero’s case,*24 C. Cls., 331, 338.

> “ The purpose of a regulation of an executive department is to carry into effect the law in respect to which it may be promulgated.” *Laurey’s*case, 32 C. Cls., 259, 266. In the same opinion it is asserted that when rights, duties, and obligations are defined by a statute they can not be taken away or abridged by the regulations of an executive department.”

> “It is fundamental in constitutional law that the lawmaking power is exclusively in Congress and can not be delegated to any other department. Laws are sometimes dependent in their enforcement upon a condition to be ascertained and determined by some persons having executive power, but that exception to the almost uniform operation of all laws is not a grant of legislative power in derogation of the function of the legislature.” *Dunlap's case,*33 C. Cls., 135, 161.

A regulation contrary to law is no regulation at all. *Sherlock’s*case, 43 C. Cls., 161, 165.

In *Freeman’s*case, 3 How., 557, 567, the Supreme Court of the United States says:

> “ The Army Regulations derive their force from the power of the President as commander in chief, and are binding upon all within the sphere and scope of his legal and constitutional authority. The Army Kegulations, when sane-*59tioned by the President, have the force of law, because it is done by him with the authority of the law.”

In *Glavey*v. *United States,*182 U. S., 595, 605, the principle is thus stated:

> “ The authority of the Secretary to issue * * ***regulations * ** **with the approval of the President, m reference to matters connected with the Naval Establishment, is subject to the condition, necessarily implied, that they must be consistent with the statutes enacted by Congress.”

We have been unable to find any authority or even suggestion that the heads of departments can, by regulation, require from the Government the payment of money for any purpose not specifically authorized by law.

The court is therefore of opinion that the regulation above quoted is invalid and of no effect.

Section 161, Revised Statutes, reads as follows:

> “ The head of each department is authorized to prescribe regulations, not inconsistent with law, for the government of his department, the conduct of its officers and clerks, the distribution and performance of its business, and the custody, use, and preservation of its records, papers, and property appertaining to it.”

The act approved March 1, 1875, Supplement Revised Statutes, volume 1, 68, provides:

> “And the President is hereby authorized to make and publish regulations for the government of the Army in accordance with existing laws.”

Any regulation within the scope of the statutes above cited would have the force and effect of law. But it certainly will not be asserted that under the provision of these statutes the Secretary of War could by regulation fix the compensation of any officer or clerk in his department or that he could provide by regulation for allowances to be paid either in money or in kind to any officer or that he could by regulation fix the amount of mileage for officers or travel pay for enlisted men. If he could not do any of these things by regulation it follows that he could not by a regulation bind the Government to pay for the transportation of horses, the private property of officers of the Army.

*60The plaintiff states that the service performed by it was done at the request and instance of the defendant, through its agent, Lieut. Col. C. B. Krauthoff, Quartermaster Corps, and that therefore the defendant is bound to pay the charges for this service. But the defendant is not bound by the illegal acts of its agent. An agent without authority to do so can not bind the principal. In this case no one was clothed with authority to bind the defendant for the pay of transporting horses which were the private property of officers of the Army.

The court being of opinion that the demurrer interposed by the defendants should be sustained, it is adjudged, ordered and decreed that said demurrer be, and the same is, hereby sustained, and the plaintiff has thirty (30) days within which to amend its petition as it may be advised.

All the judges concur.