#### PERE MARQUETTE RAILWAY CO. v. THE UNITED STATES

[No. A-336.

Decided March 31, 1924]

*On the Proofs*

*Railroad rates; Interstate Commerce Commission;*jurisdiction.-— The act of July 28, 1916, 39 Stat., 412, intended to give the Interstate Commerce Commission exclusive jurisdiction' to fix the rates to be paid to railroad companies for carrying the United States mails, and the Court of Claims has no jurisdiction to review the action of the Commission.

*The Reporter's*statement of the case:

*Mr. Lawrence A. Oalee*for the plaintiff. *.Britton <& Gray*were on the briefs.

*Mr. I/isle A. Smith,*with whom* was *Mr. Assistant Attorney General Robert R. Lovett,*for the defendant. *Mr. Joseph Stewart*was on the brief.

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

I. The plaintiff is a corporation, and has at all times hereinafter mentioned operated railroad train service between Chicago, Ill., and Grand Rapids, Mich., including one train designated train No. 1, which left Chicago late *539at night for Grand Eapids, and a train designated No. 8, which left Grand Eapids late at night for Chicago.

II. Prior to November 1, 1916, the plaintiff was a party to contracts with the United States, acting by the Postmaster General, providing for the transportation of the United States mails between Chicago, Ill., and Grand ■ Eapids, Mich., respectively. In all of the said contracts, which were commonly and had been for many years entered into by the Postmaster General with all railroad carriers for the transportation of the United States mails over their respective roads, the basis upon which the carrier’s compensation was computed was in general that of weight.

III. Following the enactment of the act of Congress approved July 28, 1916, 39 Stat. 412, 425, section 5, the Postmaster General made application to the Interstate Commerce Commission for its consent and approval to place upon the space system of pay, in the manner and at the rates provided in the law, certain routes or systems selected by him as those found practicable and necessary, in order to present to the commission the matters thereinafter referred to. By order of August 29, 1916, the Interstate Commerce Commission consented and approved the said application, and the Postmaster General stated the routes and systems so selected upon the space basis of pay beginning November 1, 1916.

IV. Effective November 1, 1916, the Postmaster General, acting pursuant to the provisions of section 5 of tlie act of Congress approved July 28, 1916, and with the consent and approval of the Interstate Commerce Commission, inaugurated the space system for the transportation of the mails. Among other routes selected was route No. 137526, between Chicago and Grand Eapids, over the plaintiff’s line, over which the Postmaster General authorized a daily 60-foot storage mail car in each direction, to be carried with train No. 1, from Chicago to Grand Eapids, and with train No. 8, from Grand Eapids to Chicago.

V. The said 60-foot storage car was placed in operation November 1, 1916, and was operated continuously to August 13, 1917. Full settlement has been made by the Postmaster *540General for the service so rendered to and including August 12, 1917.

YI. By order of the department the 60-foot railway post-office car authorized in train No-. 1 with return in No. 8 was, discontinued effective June 30, 1917, and there was authorized-in the same trains in lieu thereof to be operated daily a 30-foot railway post office apartment, effective on and after-July 1, 1917.

VII. August 1, 1917, the plaintiff was notified by the then Second Assistant Postmaster General that beginning August 13,1917, the 60-foot storage mail car on trains No. 1 and No. 8 would be discontinued and a 30-foot storage unit in train No. 1 and a 15-foot storage unit in train No. 8 authorized in lieu thereof. A copy of the Second Assistant Postmaster General’s letter is annexed to the petition as Exhibit A and is made a part hereof by reference.

The plaintiff by its supervisor of mail and express protested against the charge by letter of August 8, 1917, to the-Second Assistant Postmaster General, a copy of which is also annexed to the petition as Exhibit B and is made a part hereof by reference.

August 21, 1917, the Second Assistant Postmaster General restated and affirmed the position of the Post Office Department. A copy of the Second Assistant Postmaster General’s letter is annexed to the petition as Exhibit C and is made a part hereof by reference.

August 28, 1917, .the plaintiff again protested against the action of the Post Office Department. A copy of the plaintiff’s letter is annexed to the petition as Exhibit D and is made a part hereof by reference.

VIII. Notwithstanding the authorization of the Postmaster General called for only 30 feet of storage space on train No. 1 and 15 feet of storage space on train No. 8, the plaintiff, beginning August 13, 1917, to and including December 31, 1917, continued to carry a 60-foot storage car on each week-day trip on trains No. 1 and No. 8. Two- 60-foot storage cars were kept in service and operated continuously, one in each direction alternately. Thus the car which was sent from Chicago to Grand Rapids on train No. 1 on one night *541went back the nest night on train No. 8, and vice versa. These storage cars were not used by the plaintiff for any purpose other than carrying of the United States mails.

IX. Trains No. 1 and No. 8 were made up principally of da.y coaches and sleeping cars. Baggage space was provided by a combination baggage car and smoker in which the size of the baggage space was from 30 to 34 lineal feet, and baggage was carried in this space. In addition .to the coaches and sleeping cars and combination baggage car-smoker the consist of these trains included (1) an express car, (2) a 60-foot railway postoffice car, used for the regular mails, and (3) a 60-foot storage car, used for the “ storage ” or parcel post mails.

X. A full 60-foot railway post office car is a car fitted in acordance with the plans and specifications of the Post Office Department with facilities for distributing letters and other mail.

A 30-foot railway post-office apartment in a compartment of 30 feet in length partitioned off in a full car and fitted in accordance with the plans and specifications of the Post Office Department for distribution of mails, the balance of the car, usually 30 to 40 feet, being available' for the use of the carrier for the accommodation of baggage, express, passengers, or for any other purpose.

A storage car or unit of storage space is satisfied by any kind of' car or part of cars which provides the necessary space. It may be an express car or a baggage car or space in an oversize railway post-office car or oversize railway post-office apartment car.

XI. The railway post-office car carried in the consist of these trains, as stated in finding IX, had been originally authorized, beginning November 1,1916, as a 60-foot railway post-office car. Effective July 1,1917, the authorization had been changed to a 30-foot railway post-office apartment. The plaintiff did not have any 30-foot railway post-office cars or apartments and continued to furnish the 60-foot railway post-office car, which it was permitted to do under the rulings and regulations of the Post Office Department. After July 1, 1917, when the authorization of a 30-foot apartment became effective, the 60-foot railway post-office *542car furnished by the plaintiff was described as an “ oversize ” railway post-office car. For this railway post-office car the plaintiff claimed and was paid only on the basis of the 30-foot railway post-office authorization. The excess space in such car over and above the necessary distribution facilities and storage space belonging to a 30-foot railway post-office apartment authorization is 17 feet 2 inches, which was available to the plaintiff for its use for the transportation of a part or all of the -mails due to be carried under any storage authorization in the same train.

XII. Notwithstanding the authorization of the Postmaster General called for a 30-foot railway post-office apartment to be operated daily in trains No. 1 and No. 8, the plaintiff beginning July 1, 1917, to and including December 7, 1917, continued to operate a full 60-foot railway post-office car daily in trains No. and No. 8, in which there was excess space over and above the space required to satisfy the requirements as to space for distribution purposes of a 30-foot railway post-office apartment car. Also, the plaintiff, notwithstanding the order of the Postmaster General, called for the furnishing of only 30 feet of storage space on train No. 1 and 15 feet of storage space on train No. 8, beginning August 13, 1917, to and including December 31, 1917, continued to operate a 60-foot storage car daily except Sunday in trains No. 1 and No. 8. Commencing March 11, 1918, the plaintiff commenced using this 60-foot storage car jointly for mail and express.

XIII. During the period in question, from August 13 to December 31, 1917, the plaintiff charged the Post Office Department for the service of a 60-foot storage car between Chicago' ad Grand Eapids in both directions on trains No. 1 and No. 8. The Post Office Department refused to pay the plaintiff for the 60-foot storage car and paid on -the basis of a 30-foot storage unit in train No. 1 and a 15-foot storage unit in train No. 8. The plaintiff was also paid for emergency storage mails authorized from time to time by the Postmaster General. The total amount paid by the Post Office Department during the period in question, on the basis of a 30-foot storage unit in train No. 1 and a 15-foot storage unit in train No. 8, was $4,242.61. Subsequently by order *543of the Interstate Commerce Commission the rate of pay was increased and an additional allowance was made for the service in question amounting to $1,329.14, thus increasing the total amount paid, on the basis of a 30-foot unit in train No. 1 and a 15-foot unit in train No. 8, $5,571.75.

XIV. The excess space in the full railway post-office car that was operated in train No. 1 was used by the railroad company in certain instances to accommodate units of 3 to 15 feet of additional or emergency mails which were carried therein; that is to say, that mails over and above those covered by the regular authorizations were carried in the oversize railway post-office car under dates of August 13, August 14, August 17, August 27, September 24, October 30, and November 7, 1917, and that the 15-foot regular authorization of storage space authorized in train No. 8 was authorized to, be carried in the available space in the oversize full railway post-office car and was so carried during the period August 13 to December 17, inclusive, and was not carried in the full 60-foot storage car.

. Under the regulations of the Post Office Department the plaintiff was not required to- anticipate the performance of emergency service by reserving space to accommodate excess mail.

XV. The company operated a full 60-foot railway post-office car in which there was excess space of 17 feet 2 inches over and above the necessary space required to satisfy the 30-foot railway post-office apartment authorization and in which the equivalent of 17 feet 2 inches of storage mails due to be transported under the 30-foot authorization could have been carried, leaving only the equivalent of 12 feet 10 inches of storage mails which the plaintiff was required to transport elsewhere in its train No. 1. No part of the 60-foot storage car operated was needed or used by the Post Office Department for the transportation of the mails in the return on train No. 8, the mails due to be transported under the 15-foot storage authorization in train No. 8 being accommodated in the excess space in the oversize full railway post-office car during the period August 13 to December 7, 1917.

*544XYI. During the period in question, namely, from August 13, 1917, to December 31, 1917, the authorizations of storage space in trains Nos. 1 and No. 8, namely, 30 feet in train No. 1 and 15 feet in train No. 8, were in accordance with the needs of the service as determined by the Postmaster General and such authorization were in accordance with section 2, Instructions and Rulings with Reference to Railway Mail Pay, issued by the Second Assistant Postmaster General, which provides that units of storage space in baggage cars will be stated and paid for in one direction only. The plaintiff has been paid for compensation for all service operated under authorizations of the Postmaster General.

XVII. The total amount claimed by the plaintiff on the basis of a 60-foot storage car in each direction is $12,479.98. The amount which the plaintiff has received is $5,571.75.

MEMORANDUM BT THE COURT

The services claimed to have been rendered by the plaintiff were rendered after the passage of the act of Congress approved July 28, 1916, 39 Stat. 412. That act provided, among other things:

> “ The Interstate Commerce Commission is hereby empowered and directed as soon as practicable to fix and determine from time to time the fair and reasonable rates and compensation for the transportation of such mail matter by the railway common carriers and the service connected therewith, prescribing the method or methods of weight or space, or both, or otherwise, for ascertaining such rate or compensation, and to publish the same; and orders so made and published shall continue in force until changed by the commission after due notice and hearing.” .

> “ In fixing and determining the fair and reasonable rates for such service the commission shall consider the relation existing between the railroads as public-service corporations and the Government and the nature of such service as distinguished, if there be a distinction, from the ordinary transportation business of the .railroads.”

On December 23, 1919, the Interstate Commerce Commission decided that the space basis which it had authorized the Postmaster General by its order of August 29,1916, to install should be continued, and that it should be extended *545to all mail routes and, fixed the reasonable rates and compensation for transportation of mail matter as of November 1, 1916.

The plaintiff has been paid the compensation fixed by the Interstate Commerce Commission for the period from August 13, 1917, to December 31,1917. It has been paid in full the compensation provided by the commission for the service which was authorized by the Postmaster General.

The act of July 28, 1916, clearly intended that all questions of the compensation to be paid railroad companies for carrying the mails should be determined by the Interstate Commerce Commission. The commission having acted within the scope of its authority, having fixed the reasonable compensation to which the plaintiff is entitled, this court can not review the action of the commission and undertake to fix a different compensation from that arrived at by the commission. If the plaintiff has performed any service which the commission has failed to provide for in its order fixing compensation, then the plaintiff’s remedy is before the Interstate Commerce Commission and not in this court.

The petition is dismissed.