#### ST. LOUIS, BROWNSVILLE & MEXICO RAILWAY COMPANY v. THE UNITED STATES.

[No. B-159.

Decided November 5, 1923.]

*On the Proofs.*

*Land-grant deductions; contract equalisers; SO per cent*reduction.— Bailroads which were contract equalizers of railroads organized under the act of July 28, 1866, and thereby subject to land-grant deductions of 100 per cent, come within the purview of the act of October 6, 1917, 40 Stat. 361, reducing such rate to a 50 per cent basis during the war with Germany and Austria-Hungary.

*The Reporter's*statement of the case:

*Mr. Lawrence H. Cake*for the plaintiff. *Britton & Gray*were on the brief.

*Mr. George H.*Foster, with whom was *Mr. Assistant Attorney General Robert H.*Lovett, for the defendant. *Mr. Lisle A. Smith*was on the brief.

The following are the facts of the case as found by the court:

I. The plaintiff, a corporation, is a common carrier by railroad of freight and passengers.

II. Before and at the time of the transactions hereinafter mentioned the common carriers of the United States generally, including the plaintiff, severally agreed with the Quartermaster General of the United States Army that they would accept for the transportation of Government troops and property the amounts that would be payable by the *620Government, calculated by way of the cheapest route between the same terminal points, as derived through deductions account land-grant distance, via a usually traveled route for military traffic, from a lawful rate filed with the Intei-state Commerce Commission, as applying from point of origin to destination via such route at time of movement.

III. At various times during the period beginning April 6, 1917, and ending October *5, 1917,*inclusive, the plaintiff transported over its lines various shipments of freight for the United States Government upon properly issued Government bills of lading, for which transportation the plaintiff rendered its bills and received payment through the accounting and disbursing officers of the Government, in accordance with the terms of the said equalization agreement above mentioned. A part of the land-grant deductions taken into account in determining the amount due the plaintiff were made on the basis of a calculation of land-grant deductions and adjustments by way of certain portions of the Missouri Pacific Railway system arid the Chicago, Rock Island *&*Pacific system, in particular that portion of the Missouri Pacific system between Birds Point, Missouri, and Texarkana, Arkansas, upon which portions of the said systems land-grant deductions of 100 per cent were proper under the granting act of July 28, 1866, chapter 300. A statement of the items and details of such freight transportation is annexed to plaintiff’s petition as Exhibit A.

IV. April 6, 1917, the Congress of the United States, by joint resolution, declared the existence of a state of war between the United States and the Imperial German Government.

V. October 6, 1917, the Congress enacted as a part of the act approved October 6, 1917, chapter 79, 40 Stat. 361, the following:

“ Land-grant railroads organized under the act of July 28, 1866, chapter 300, shall receive the same compensation for transportation during the existing war emergency of property and troops of the United States as may be paid to land-grant railroads organized under the land-grant act of *621Maroli 8, 1868, and the act of July 27, 1866, chapter 278, for such, transportation during said emergency: *Provided,*That this paragraph shall not be construed as changing in any other way or for any other period of time the rights and duties of the land-grant railroads first above mentioned.”

YI. With respect to the said transportation, from, April 6, 1917, to October 5,1917, inclusive, the difference between the amount paid the plaintiff on the one hundred per cent land-grant basis as stated in Finding III, *sufra,*and the fifty per cent basis referred to and authorized in the said act of Congress approved October 6, 1917, and the equalization agreements referred to in Finding II, *supra,*is $887.61. The said sum of $887.61 has not been paid the plaintiff through the accounting or disbursing officers of the Government.

MEMORANDUM 15Y THE COURT.

There is but one question involved, since the retroactive effect of the provision in the act of October 6, 1917, 40 Stat. 361, has airead}' been determined both by this court and by the General Accounting Office.

That point settled, it is contended that the plaintiff road is not one of those organized under the act of July 28, 1866, and therefore not entitled to the benefits of the act of 1917. That contention has foundation if only a strict and technical construction of the act is permissible, but it would work manifest injustice, be subversive of the evident intent of Congress and not required, if without undue violence the act may be so construed as to effectuate its purposes.

It is hardly to be assumed that Congress intended to relieve the 100 per cent roads which had actually received grants of land from the excessive burdens of war and deny relief to roads which had not received the same benefits but were only contract equalizer’s. They were subject to the 100 per cent deduction or free-haul requirement only for equalizing purposes, and to maintain the equilibrium it is certainly necessary that they should have the benefits of the act in question. Indeed, it is not far if at all astray from the correct conclusion to say that the act in question is to be read into the equalizing agreements.

Judgment for plaintiff in the sum of $887.61.