#### THE CHICAGO, MILWAUKEE AND ST. PAUL RAILWAY COMPANY v. THE UNITED STATES.

No. 12361

April 16, 1883.

Tlie claimant corporation, a land-grant railroad, transported over its road officers and men of the Army with Indian prisoners, under a special contract made with the Quartermaster-General of the Army as to the price to he paid therefor; which price it was provided should not he reduced on account of the road having aland grant, that fact having been taken into consideration in m airing the contract. The company had been so paid tor tlie transportation of the Indians, but 50 per cent, of the amount due for transporting officers and men was retained.

The company also claimed payment for other transportation under a time contract at the rate specified therein, after Congress had passed an. act reducing the compensation of all land-grant roads for carrying the mails.

Held:

I.The *Act of March*3, 1875, cb. 133 (18 Stat. L., 453, and 1 Suppl. Rev. Stat., 171),-took from the Quartermaster-General the power to agree upon rates of transportation on land-grant roads and conferred it upon this court.

II.The contract rates in this case being, in the opinion of the court, very near to those which the company would be entitled to under the rules heretofore laid down in other cases (15 C. Cls. R., 126, 428), the court adopted and allows them,' disregarding the slight difference between them as not to be cared for.

III.Upo'n the authority of the rulings of .the Supreme Court in the case óf the *Chicago, Milwaulcee and Saint Paul Railroad Company*(104 U. S. R., 687) and the *Chicago and Northwestern Railway Company*(104 U. S. R., 680), the reduction of the rate of pay to land-grant roads by act of Congress did not apply to time contracts previously made with the Postmaster-General.

The following are the facts found by the court:

I. In November, 1877, the claimant transported three officers and sixty-eight men belonging to the Army of the United States, one interpreter, two hundred and sixty-seven adult Indian (Nez Percé) prisoners, and fifty-two Indian prisoners between the ages of five and twelve years, from Saint Paul, Minn., to Fort Leavenworth, Kans., by railroad.

And said transportation was had under a special contract made with the claimant by the Quartermaster-General at the *360following rates, namely: For each, adult, $10.84; for the children, $5.42 each; and with the condition that no deduction should be made on account of “ land grant, ” as the special rates given fell below the rates charged to the public after due allowance for land-grant distance.

II. The distance from Saint Paul to Fort Leavenworth by the route over which the transportation occurred, and which was the shortest route between those points by rail, was 542 miles, and the ordinary tariff or through rate for adults then charged was $19.70.

III. The claimant was the owner of but 141 miles of the railroad, namely, from Saint Paul to Mason City, Iowa, over which said transportation took place, and ran its cars the remainder of the distance to Fort Leavenworth by arrangement with the railroad companies owning such roads.

IY. Of the 141 miles of road belonging to the claimant, 113 miles thereof were built with the aid of a grant of lands by the United States upon the condition that the same should remain a public highway, free from toll or other charge upon the transportation of property and troops of the United States.

Y. The claimant has received from the Government compensation, at the coutraet rates, for the transportation of the Indian prisoners, and also 50 per cent, only of the contract rate for the transportation of the said officers, soldiers, and interpreter.

YI. The following contracts, numbered, respectively, 26009, 26010, and 27025, were made and entered into between the claimant and the defendants at the time of their respective dates:

No. 26009.

The article of contract, made the eight day of September, in the year one thousand eight hundred and seventy-five, between the United States of America (acting in this behalf by the Postmaster-General) and the Chicago, Milwaukee and St. Paul Railroad company, by Alexander Mitchell, its president, and Alexander Mitchell and Sherburn S. Merrill, as sureties, witnesseth:

That whereas the said railroad company has been acceptod, according to law, as contractor for conveying the mail on route No. 26009, from Minneapolis (Minn.), by Minnehaha, Mendota, Rosemount, Farmington, Castle Rock, Northfield, Dnndas, Fairbault, Medford Clinton Falls, Owatonna, Aurora, Blooming Priarie, Lansing, Ramsey, Austin, Rose Creek, Adams, Taopi, Leroy, Chester (Iowa), Glen Roy, Lime Springs, Cresco, Conover, Calmar, Ossian, Castalia, Postville, Luana, Monona, and Beulah, to North. McGregor and hack six times a week, or as much oftener as trains may run, by a schedule satisfactory to the Department, at twenty thousand fourhun-*361•drecl and ninety-one and fifty hundreths dollars per year (being at tie rate •of ninety-five dollars per mile per annum) for and daring the term beginning July first, eighteen hundred and seventy-five, and ending June thirty, eighteen hundred and seventy-nine:

Now, therefore, the said Chicago, Milwaukee and St. Paul Railroad Company, as contractor, and the said Alexander Mitchell and Sherburn S. Merrill, as sureties, do jomtly and severally undertake, covenant, and agree with the United States, and do bind themselves—

1st. That the mail (including British, Canada, and other foreign mails) shall be convoyed in a secure-and safe manner, free from wet or other injury, in a separate and convenient car, or apartment of a car, suitably fitted up, furnished, warmed, and lighted, under direction of the Post-Office Department, and to the satisfaction of the Postmaster-General, or of his authorized agent, at the expense of the contractor, for the assorting and saef-keep-ing of the mails, and for the exclusive use of the Department and its mail agent, if the Department shall employ such agent; and' such agent is to be conveyed free of charge. When there is no agent of the Department the railroad company shall designate a suitable person, upon each train, to be sworn, to receive and take charge of the mails, and of way-bills aecom-paying and describing them, and duly deliver the same. And the mail ¡shall be taken from and delivered into the post-offices at the ends of the route, and also from and into the intermediate offices on the route, or that may hereafter bo established on the route, provided the latter are not over one-quarter of a mile from a depot or station, or from the railroad track when no station has been established.

2d. That if the company shall run a regular1 train of passenger cars more frequently than is required by the contract to carry the mail, the same increased frequency shall be given to the mail, and without increase of compensation, and the like as to the increase spoed of the mail trains, if desired by the Postmaster-General.

3d. That the company shall convey, free of charge, all mail-bags and post-office blanks; and also all accredited special agents of the Department, on exhibition of their credentials.

4th. That the company shall not, by itself nor by its agents, transmit nor be concerned in transmitting commercial intelligence more rapidly than by mail, nor carry out of the mail any letters not inclosed in postage-stamped envelopes, except such as may have relation solely to some article at the same time conveyed.

5th. That in every case of failure to perform the trip (unless it is shown that the same was not caused by misconduct, neglect, or want of proper skill) there may be a forfeiture of tiie pay for the *trip;*and a failure to arrive at the end of the route, so as to lose the connection with a depending mail, shall be considered as equal to a whole trip lost, unless the detention or delay be the result of unavoidable causes.

6th. That the company shall be subject to fine for failure to take or deliver a mail, or any part of a mail; for suffering the mail to be wet or otherwise injured, or lost or destroyed, irnless it shall appear that such failure or other incident as aforesaid was not caused by misconduct, neglect, or want of proper skill on the part of the company or its officers.

*3627th. That the company shall he answerable for the adequacy of the means, of transportation; for the faithfulness, ability, and diligence of its agents and for the safety, due receipt, and delivery as aforesaid of the mails.

8th. That the company will collect quarterly, if required by the Postmaster General, of postmasters on the route, the balance due from them to the-United States on their quarterly returns, and faithfully render an account-thereof to the Postmaster-General in the settlement of its quarterly accounts,, and will pay over to the Auditor of the Treasury for the Post-Office Department, on the order of the Postmaster-General, all balances remaining in its. hands.

9th. That the Postmaster-General may discontinue or curtail the service,, in whole or in part, whenever the public interests, in his judgment, shall-require such discontinuance or curtailment for any cause; he allowing as a full indemnity to the contractor one month’s extra pay on the amount of service dispensed witb, and a pro rata compensation for the amount of service retained and continued.

10th. The said United States covenant with the said company to pay as-aforesaid, at the rate aforementioned, quarterly, in the months of November, h'ebruary, May, and August, or in the preceding months, at the option, of the Department.

Provided always, that this contract shall, in all its parts, be subject to-the terms and requisitions of an act of Congress passed the twenty-first day of April, in the year one thousand eight hundred and eight, entitled “An-act concerning public contracts.”

In witness whereof the said Postmaster-General has caused the seal of the-Post-Office Department to be hereto affixed, and has attested the same by his signature; and the said railroad company, by its president and sureties, have hereunto set their hands and seals the day and year set opposite-their names respectively.

Signed, sealed, and delivered by the Postmaster-General in the presence! of—

Marshall Jewell, Postmmter-G-merat.

Milwaukee, Jan’y 11, 1876.

Chicago, Milwaukee and St. Paul R’y Co.—

Signed this-day of-, 187-, by

Alex. Mitchell, [affix seal of co.]¡

*President.*

Signed this-day of-, 187-.

Alex. Mitchell, [seal.] ) January 18, 1876.

Signed this-day of-, 187-. > *Sureties.*

S. S. Merrill, [seal.] S January 18, 1876.

This aritcle of contract, made the eighth day of September, in the year-one thousand eight hundred and seventy-five, between the’United States of America (acting in this behalf by the Postmaster-General) and the Chicago, Milwaukee and St. Paul Railroad Company, by Alexander Mitchell., its president, and Sherburn S. Merrill, as sureties, witnesseth:

*363That whereas the saicl railroad company has been accepted, according to law, as contractor for conveying the mail.on route No. 26010, from Hasting». (Minn.), by Vermillion, Empire City, Farmington, Lakeville, Prior’s Lake, Shakopee, Chaska, Carver, Dahlgren, Benton, Bougard, Young America,, and Norwood, to Glencoe and hack six times a week in summer and three-times a week in winter, or as much oftener a_s trains may run, by a schedule satisfactory to the Dej>artment, at two thousand nine hundred and eighty-three and sixty-hundredths dollars per year (being at the rate of' forty dollars per mile per annum) for and during the term beginning July first, eighteen hundred and seventy-five, and ending June thirty, eighteen hundred and seventy-nine:

Now, therefore, the said Chicago, Milwaukee and St. Paul Railroad Company, as contractor, and the said Alexander Mitchell and Sherburn S. MeT-ril, as sureties, do, jointly and severally, undertake, covenant, and agree with the United States and do bind themselves—

1st. That the mail (including British, Canada, and other foreign mails)1' shall be conveyed in a secure and safe manner, free from wet or other injury, in a separate and convenient car, or apartment of a car, suitably fitted up, furnished, warmed, and lighted, under the direction o£ the Post-Office Department, and to the satisfaction of the Postmaster-General or of his authorized agent, at the expense of the contractor, for the assorting and. safe-keeping- of tho mails and for the exclusive use of the Department and. its mail agent, if the Department shall employ such agent; and such agent is to be conveyed free of charge. When there is no agent of the Department the railroad company shall designate a suitable person upon each train to be sworn to receive and take charge of the mails, and of way-bills, accompanying and describing them, and duly deliver the same. And the-' mail shall be taken from and delivered into the post-offices at the ends of the route; and also from and into the intermediate offices on the route, or-that may hereafter be established on the route, provided the latter are not over one-quarter of a mile from a depot or station, or from the railroad track when no station has been established.

2d. That if the company shall run a regular train of passenger cars more-frequently than is required by the contract to carry the mail, the same increased frequency shall be given to the mail, and without increase of compensation, and the like as to the increase speed of the mail trains, if desired, by the Postmaster-General.

3d. That the company shall convey free of charge all mail-bags and post-office blanks; and also all accredited special agents of the Department, on. exhibition of their credentials.

4th. That the company shall not, by itself nor by its agents, transmit-nor be concerned in transmitting commercial intelligence more rapidly than by mail, nor carry out of the mail any letters not inclosed in postage-stamped envelopes, except such as may have relation solely to some article at the same time conveyed.

5th. That in every case of failure to perform the trip (unless it is shown that the same was not caused by misconduct, neglect, or want of proper skill) there may be a forfeiture of the pa.y for the trip; and a failure to a-r— *364rive at the end of the route, so as to lose the connection with a depending mail, shall be considered as equal to a whole trip lost, unless the detention or delay be the result of unavoidable causes.

6th. That the company shall he subject to line for failure to take or deliver a mail, oranypart of a mail; for suffering the mail to be wet or otherwise injured, or lost or destroyed, unless it shall appear that such failure or other incident as aforesaid was not caused by misconduct, neglect, or want of proper skill on the part of the company or its officers.

7th. That the company shall be answerable for the adequacy of the moans •of transportation; for the faithfulness, ability, and diligence of its agents; and for the safety, due receipt, and delivery as aforesaid of the mails.

8th. That the company will collect quarterly, if required by the Postmaster-General, of postmasters on the route, the balances due from them to the United States on their quarterly returns, and faithfully render an account thereof to the Postmaster-General in the settlement of its quarterly accounts, .and will pay over to the Auditor of the Treasury for the Post-Office Depart-men fc, on the order of the Postmaster-General, all balances remaining in its hands. *

9th. That the Postmaster-General may discontinue or curtail the service, in whole or in part, whenever the public interests, in his judgment, shall require such discontinuance or curtailment for any cause, he allowing as a full indemnity to the contractor one month’s extra pay on the amount of service dispensed with, and a pro rata compensation for the amount of service retained and continued.

10th. The said United Statos covenant with the said company to pay as aforesaid, at the rate aforementioned, quarterly, in the months of November, February, May, and August, or in the preceding- months, at tho option of the Department.

Provided always, that this contract shall in all its parts bo subject to the terms and requisitions of an act of Congress passed the twenty-first day of April, in the year one thousand eight hundred and eight, entitled “An act •concerning public contracts.”

In witness whereof the said Postmaster-General has caused the seal of the Post-Office Department to be hereto affixed, and has attested the same by his signature; and the said railroad company, by its president and sureties, have hereunto set their hands and seals the day and year set opposite their names respectively.

Signed, sealed, and delivered hy the Postmaster-General in the presence of—

Maksiiall Jewell, *Postmaster-General.*

Milwaukee, January 11, 1876.

Chicago, Milwaukee and St. Paul E’y Co.—

Signed this-day of-, 187-, by

Alex. Mitchell, [affix seal of co.]

*President.*

Attest:

E. D. JenNings, *Secretary.*

:Signed this-day of-, 187-.

Alex. Mitcheix, [seal.] ') January 18,1876.

■Signed this-day of-, 187-. *>Sureties.*

S. S. Merrill, [seal.] ) January 18,1876.

*365No. 27025.

This article of contract, made the 9th day of September, iu the year one-thousand eight hundred and seventy-five, between the United States of' America (acting in this behalf by the Postmaster-General) and the Chicago, Milwaukee and St. Paul Eailroad Company, by Alexander Mitchell, its-president, and Alexander Mitchell and Sherburn S. Merrill, as sureties, witnesseth:

That whereas the said railroad company-has been accepted, according to-law, as contractor for conveying the mail on route No. 27025, from Calmar-(lowa), by Port Atkinson, Navan, New Alba, Lawler, Jacksonville, New Hampton, Ionia, Chickasaw, Bassett, Charles City, Eudd, Nora Springs,. Portland, Mason City, Clear Lake, Garner, Britt, and Wesley Station, to Algona and back, by railroad, six times a week, or as nmch oftener as trains-may run, by a schedule satisfactory to the Department, at seven thousand two hundred and eighty-four and sixty one-hundredths dollars per year-(being at the rate of fifty-seven dollars per mile per annum), for and during the term beginning July first, eighteen hundred and seventy-five, and ending June thirty, eighteen hundred and seventy-nine:

Now, therefore, the said Chicago, Milwaukee and St. Paul Eailroad Com-peny, as contractor, and the said Alexander Mitchell and Sherburn S. Merrill, as sureties, do, jointly and severally, undertake, covenant, and agree with the United States, and do bind themselves—

1st. That the mail (including British Canada and otherforeign mails) shall, be conveyed in a secure and safe manner, free from wet or other injury, in a separate and convenient car, or apartment of a car, suitably fitted up, furnished, warmed, and lighted, under direction of the Post-Office Department, and to the satisfaction of the Postmaster-General, or of his authorized agent, at the expense of the contractor, for the assorting and safekeeping of the mails, and for the exclusive use of the Department and its mail ageut, if the Department shall employ such agent; and such agent is-to be conveyed free of charge. When there is no agent of the Department,, the railroad company shall designate a suitable person upon each train to be sworn to receive and take charge of the mails, and of way-bills accompanying and describing them, and duly deliver the same. And the mails-shall be taken from and delivered into the post-offices at the ends of the route; and also from and into the intermediate offices on the route, or that may hereafter be established on the route, provided the latter are not over one-quarter of a mile from a depot ,or station, or from the railroad track when no station has been established.'

2d. That if the company shall run a regular train of passenger cars more-frequently than is required by the contract to carry the mail, the same increased frequency shall be given to the mail, and without increase of compensation, ánd the like as to the increase speed of the mail trains if desired by the Postmaster-General.

3d. That the company shall convey free of charge all mail-bags and post-office blanks, and also all accredited special agents of the Department on exhibition of their credentials.

4th. That the company shall not, by itself nor by its agents, transmit nor-*366lie concerned, in transmitting commercial intelligence more rapidly than by mail, nor carry out of the mail any letters not inclosed in postage stamped envelopes, except such as may have relation solely to some article at the ■ same time conveyed.

5th. That in every case of failure to perform the trip (unless it is shown that the same was not caused by misconduct, neglect, or want of proper skill) there may be a forfeiture of the pay for the trip; and a failure to arrive at the end of the route, so as to lose the connection with a depending mail, shall be considered as equal to a whole trip lost, unless the detention -or delay be the result of unavoidable causes.

6th. That the company shall be subject to fine for failure to take or deliver a mail, or any part of a mail; for suffering the mail to be wot or otherwise injured, or lost or destroyed, unless it shall appear that such failure or •other incident as aforesaid was not caused by misconduct, neglect, or want ••of proper skill on the part of the company or its officers.

7th. That the company shall be answerable for the adequacy of the means of transportation; for the faithfulness, ability, and diligence of its agents; ..and for the safety, due receipt, and delivery as aforesaid of the mails.

8th. That the company will collect quarterly, if required by the Postmaster-General, of postmasters on the route, the balance due from them to the United States on their quarterly returns, and faithfully render an ac■•count thereof to the Postmaster-General in the settlement of its quarterly accounts, and will pay over to the Auditor of the Treasury for the Post--Office Department, on the order of the Postmaster-General, all balances remaining in its hands.

9th. That the Posmaster-General may discontinue or curtail the service, in whole or in part, whenever the public interests, in his judgment, shall .require such discontinuance or curtailment for any cause; he allowing as a .full indemnity to the contractor one month’s extra pay on the amount of .service dispensed with, and a pro rata compensation for the amount of service retained and continued.

10th. The said United States covenant with the said company to pay as .aforesaid, at the rate aforementioned, quarterly, in the months of November, February, May, and August, or in the preceding months, at the option ■of the Department.

Provided always, that this contract shall in all its parts be subject to the' . terms and requisitions of an act of Congress passed the twenty-first day of April, in the year one thousand eight hundred and eight, entitled “An act -concerning public contracts.”

In witness whereof the said Postmaster-General has caused the seal of the Post-Office Department to be hereto affixed, and has attested the same by his signature; and the said railroad company, by its president and sureties, have hereunto set their hands and seals, the day and year set opposite their names respectively.

Signed, sealed, and delivered by the Postmaster-General in the presence -of—

Marshaju, Jjswell, *Postmaster-General.*

Milwaukee, January 11, 1876.

*367Chicago, Milwaukee and St. Paul R’y Co.—

■ Signed this 11th day of Jan’y 1876, by

Alex. Mitchell, [seal.]

*President.*

Attest:

R. D. Jennings, *Secretary.*

Alex. Mitchell, [SEAL.] ) Jan’y 18, 1876. *Sureties.*

S. S. MERRILL, [seal.] )Jan’y 18, 1876.

VII. The claimant duly performed the service called for by <each of said contracts, as required thereby during the contract term of each.

VIII. The following circulars were sent by the Post-Office .Department to the claimant at the time of their respective -dates:

[Circular.]

*.Beadjustment of pay for mail service on railroad routes under act of Congress of ' June*17, 1878.

Post-Office Department,

Office of the Second Ass’t P. M. G-en’l,

*Washington, P. C., Aug.*2, 1878.

Sir : Tlie act of Congress making appropriations for the service of the Post-Office Department for the fiscal year ending June thirtieth, eighteen hundred and seventy-nine, and for other purposes, approved June 17,1878, ■contains the following proviso, namely:

“That the Postmaster-General he, and he is hereby, authorized and directed to readjust the compensation to he paid from and after the first day of ■July,'eighteen hundred and seventy-eight, for transportation of mails on railroad routes, by reducing the compensation to all railroad companies for the transportation of mails *five per centum per annum*from the rates for the transportation of mails, on the basis of the average weight fixed and ¡allowed by the first section of an act entitled ‘An act making- appropriations for the service of the Post-Office Department for the fiscal year ending June ¡thirtieth, eighteen hundred and seventy-seven, and for other purposes,’ approved July twelfth, eighteen hundred and seventy-six.”

Therefore, please take notice that the Auditor of the Treasury for this 'Department has been directed to decrease the pay of your company for the conveyance of the mails on route 26010,'between Hastings and Glencoe, Minn., from July 1, 1878, to June 30, 1879, $107.41 per annum, leaving the pay from the first-named date $2,040.78 per annum, being a reduction of five *368per centum from the rates fixed for weight of mails in accordance with the proTision of the act of June 17, 1878, above quoted.

Very respectfully, your obedient servant,

Thos. J. Beady,

*Second Ass’t P. M. Gen’l.*

S. S. Merrill, Esq.,

*Gen’l Man’g. Chicago, Mil. St. Paul B’w’y,*

*Milwaukee, Wis.*

[Circular.!

*Readjustment of pay or mail service fon railroad routes under aet of Congress of*

*June*17, 1878.

Post-Oottce Department,

Oeeice op the Second Ass’t P. M. G-en’l,

*Washington, D. G., Aug.*2, 1878.

Sir: The act of Congress making appropriations for the service of the. Post-Office Department for the fiscal year ending June thirtieth, eighteen hundred and seventy-nine, and for other purposes, approved Jane 17,1878, contains the following proviso, namely :

“That the Postmaster-General be, and he is hereby, authorized and directed to readjust the compensation to be paid from and after the first day of July, eighteen hundred and seventy-eight, for transportation of mails, on railroad routes, by reducing the compensation to all railroad companies for the transportation of mails *fine per cenlumper annum*from the rates for the transportation of mails, on the basis of the average weight fixed and allowed by the first section of an act entitled ‘An act making appropriations for the service of the Post-Office Department for the fiscal year ending-June thirtieth, eighteen hundred and seventy-seven, and for other purjioses/' approved July twelfth, eighteen hundred and seventy-six.”

Therefore, please take notice that the Auditor of the Treasury for this-Department has been directed to decrease tho pay of your company for the conveyance of the mails on route 26009, between Minneapolis, Minn., and North McGregor, Iowa, from July 1, 1878, to June 30, 1879, $232.56 per an-num, leaving the pay from the first-named date $18,424.49 per annum, being a reduction of five per centum from the rates fixed for weight of mails in accordance with the provision of the act of June 17, 1878, above-quoted.

Very respectfully, your obedient servant,

Thos. J. Brady,

*Second Ass’i P. M, Gen’h*

S. S. Merrill, Esq.,

*Gen’l Man’g. Chicago, Mil. and St. Paul R’w’y,*

Milwaukee, *Wis.*

*369[Circular.] -

*Readjustment of pay for mail service on railroad routes under act of Congress of June*17, 1878.

Post-Office Department,

Office op the Second Ass’t P. M. Gen’d,

*Washington, D. C., July*31, 1878.

Sir: The hot of Congress making- appropriations for tlie service of the Post-Office Department for the fiscal year ending June thirtieth, eighteen hundred and seveñty-nine, and for other purposes, approved June 17,1878, contains the following proviso, namely':

“That the Postmaster-General he, and he is hereby, authorized and directed to readjust the compensation to be paid from and after the first day of July, eighteen hundred and seventy-eight, for transportation of mails on railroad routes, by reducing the compensation to all railroad companies for the transportation of mails *five per centum, pen- annum*from the rates for the transportation of mails, on the basis of the average weight fixed and allowed by the first section of an act entitled ‘An act making appropriations for the service of the Post-Office Department for the fiscal year ending June thirtieth,, eighteen hundred and seventy-seven, and for other purposes, ’ approved July twelfth, eighteen hundred and seventy-six.”

Therefore, please take notice that the Auditor of the Treasury for this Department has been directed to decrease the pay of your company for the ■conveyance of the mail on route 27025, between Calmar and Algona, Iowa, from July 1, 1878, to June 30, 1879, $291.38 per annum, leaving the pay from the first-named date $5,536.30 per annum, being a reduction of five per centum from the rates'fixed for weight of mails, in accordance with the provision of the act of June 17,1878, above quoted.

Very respectfully, your obedient servant,

Thos. J. Brady,

*iSecond Ass’t P. M. G-en’l.*

Alex. Mitchell, Esq.,

*Chicago, Mil. and St. Paul R’w’y Co., Milwaukee, Wis.*

[Circular.!

*Reduction of pay for mail service on land-grant railroads under act of Congress of July*12, 1876.

Post-Office Department,

Office of the Second Ass’t P. M. Gen’l,

*Washington, D. C., Oct.*20, 1876.

Sir: The act of Congress entitled “An act making appropriations for the service of the Post-Office Department for the fiscal year ending June thirtieth, eighteen hundred and seventy-seven, and for other purposes,” approved July 12, 1876, section 1, contains the following proviso, namely *t*

*“Provided,*That the Postmaster-General be, and he is hereby, authorized and directed to readjust the compensation to be paid from and after the first day of July, eighteen hundred and seventy-six, for transportation of mails on railroad routes, by reducing the compensation to all railroad companies *370for the transportation of mails ten per centum per annum from the rates fixed and allowed by the first section of an act entitled ‘An act making appropriations for the service of the Post-Office Department for the fiscal year ending June thirtieth, eighteen hundred and seventy-four, and for other purposes,’ approved March third, eighteen hundred and seventy-three, for the transportation of mails on the basis of the average weight.”

The same act also contains the following section:

“ Sec. 13. That railroad companies whose railroad was constructed, in whole or in part, by a land grant made by Congress, on the condition that the mails should he transported over their road at such price as Congress should by law direct, shall receive only eighty per centum of the compensation authorized by this act.”

Consequently, for mail service performed on and after July 1,1876, on your road, route 26010, between Hastings, and Glencoe, Minn., the compensation will be reduced from |2,983.60 per annum (the amount warranted by the latest returns under the act of March 3, 1873) to |2,386.88 per annum, the reduction amounting to $596.72 per annum, of which the sum of $-is due to the proviso in the first section and the sum of $596.72 to the thirteenth section of the act of July 12, 1876, above quoted.

Very respectfully, your obedient servant,

Thos. J. Brady,

*Second Ass’t P. M. Gen’l.*

S. S. Merrill, Esq.,

*Gen’l M’n’g’ Chicago, Mil. and St. Paul R’w’y, Milwaukee, Wis.*

[Circular.]

*Reduction of pay for mail service on land-grant railroads under aet of Congress of July*12, 1876.

Post-Office Department,

Office of the Second Ass’t P. M. Gen?l,

*Washington, P). C., Oet.*20, 1876.

Sir: The act of Congress entitled “An act making appropriations for the service of the Post-Office Department for the fiscal year ending June thirtieth, eighteen hundred and seventy-seven, and for other purposes,” approved July 12, 1876, section 1, contains the following proviso, namely:

*“Provided,*That the Postmaster-General be, and he is hereby, authorized and directed to readjust the compensation to be paid from and after the first day of July, eighteen hundred and seventy-six, for transportation of mails on railroad routes, by reducing the compensation to all railioad companies for the transportation of mails ten per centum per annum from the rates fixed and allowed by the first section of an act entitled ‘An act making appropriations for the service of the Post-Office Department for the fiscal year ending June thirtieth, eighteen hundred and seventy-four, and for other purposes,’ approved March third, eighteen hundred and seventy-three, for the transportation of mails on the basis of the average weight.”

The same act also contains the following section:

“Sec. 13. That railroad companies whose railroad was constructed, in *371whole or in part, by a land grant made by Congress, on the condition that, the mails should be transported over their road at such price as Congress, should by law direct, shall receive only eighty per centum of the compensation authorized by this act.”

performed on and after July 1, 1876, on. your road, route 26009, between Minneapolis, Minn., and McGregor, Iowar the compensation will be reduced from $20,491.50 per annum (the amount-warranted by the latest returns under the act of March 3,1873) to $16,393.20‘ per annum, the reduction amounting to $4,098.30 per annum, of which the sum of $-is due to the proviso in the first section and the sum of $4,098.30 to the thirteenth section of the act of July 12,1876, above quoted.

Very respectfully, your obedient servant,,

Thos. J. Beaut,

*Second Asa’t P. M. Gm’l.*

S. S. Merrill, Esq.,

*and St. Patel B’w’y, Milwaulcee, Wis.*

[Circular.]

*Seduction of pay for mail service on land-grant railroads under aot of Congress of July*12, 1876.

Post-Office Department,

Office of the Second Ass’t P. M. Gen’l,

*Washington, D. C., Oot.*13, 1876.

Sir: The act of Congress entitled “An act mating appropriations for th© service of the Post-Office Department for the fiscal year ending June thirtieth, eighteen hundred and seventy-seven, and for other purposes,” approved July 12, 1876, section 1, contains the following proviso, namely:

Postmaster-General be, and he is hereby, authorized and directed to readjust the compensation to be paid from and after the. first day of July, eighteen hundred and seventy-six, for transportation of mails on railroad routes, by reducing the compensation to all railroad companies'for.the transportation of mails ten per centum per annum from the rates fixed and allowed by the first section of an act entitled 'An act mating appropriations for the service of the Post-Office Department for .the fiscal year ending June thirtieth, eighteen hundred and seventy-four, and for other purposes,’ approved March third, eighteen hun dred and seventy-three,, for the transportation of mails on the basis of the average weight.”

same act also contains the following section:

companies whose railroad was constructed, in whole or in part, by a land grant made by Congress, on the condition "that the mails should be transported over their road at such price as Congress-should by law direct, shall receive only eighty per centum of the compensation authorized by this act.”

Consequently, for mail service performed on and after July 1, 1876, om your road, route 27025, between Calmar and Algona, Iowa, the compensation will be reduced from $7,284.60 per annum (the amount warranted by the latest returns under the act of March 3, 1873) to $5,827.68 per annum,, the reduction amounting to $1,456.92 per annum, of which the sum of $- *372is due to the proviso in the first section and the sum of $1,456.92 to the thirteenth section of the act of July 12, 1876, above quoted.

Very respectfully, your obedient servant,

J. L. French,

*Aot’g Second Ass’t'P. M. Gen’l.*

Mr. Alex. Mitchell,

*Pres’d’t CMaago, Mil. and St. Paul R’io’y Co., Milwaukee, Wis.*

IX. The following sums were deducted by the Post-Office Department from the pay of the claimant as prescribed in the contracts for the transportation of the mails over said routes between July 1,1876, and June 30,1879, on account of the said railroads being land-grant roads, and the same is withheld from the claimant, namely: On route No. 26009, $8,200.23; on route No. 26010, $2,613.63, and on route No. 27025, $6,381.32.

X. The railroads upon which the said mails were transported in pursuance of the said contracts were built with the aid of grants of public lands of the United States, which were granted upon the condition (amongst others), viz, that the mails should be carried over the said roads at such rates as Congress should by law provide, but that the Postmaster-General should have power to fix the rates until Congress should determine them.

*Mr. John F. Farnsworth*for the claimant.

*Mr. John S. Blair*(with whom was *Mr. Thomas*Simons, Assistant Attorney-General) for the defendants.

OPINION.

Davis, J.,

delivered the opinion of the court:

This claim consists of two items, which have no connection with each other.

The first claim is described as follows in the findings:

> In November, 1877, the claimant transported three officers and sixty-eight men belonging to the Army of the United States, one interpreter, two hundred and sixty-seven adult'Indians (Nez Percé) prisoners, and fifty-two Indian prisoners between the ages of five and twelve years from St. Paul, Minnesota, to Fort Leavenworth, Kansas, by railroad.

> And said transportation was had under a special contract made with the claimant by the Quartermaster-General at the following rates, namely: For each adult, $10.84; for the children, $5.42 each; and with the condition that no deduction should be made on account of “land grant,” as the special *373rates given fell below tbe rates charged to the public after due allowance for land-grant distance.

> The claimant has received from the Government compensation, at the contract rates, for the transportation of the Indian prisoners, and also 50 per cent, only of the contract rate for the transportation of the said officers, soldiers, and interpreter.

In tbe case of tbe *Northern Pacific Railroad Company*(15 C. Cls. R., 428) we bad before us a claim similar to tbis, and we said:

> ' It is admitted that these contracts were made in good faith, and it is apparent that the parties, in fixing the entire through rate, took into consideration the discount on the transportation _over the land-grant road. It might and probably would have been better if they had had the power to do this. But Congress has seen fit to confide that power to this court. There is enough in the record, however, to satisfy us that the amount allowed to the land-grant roads gave them substantially what they would have received under the rule laid down by us in the *Atchison, Topelea and Santa Fé. Case*(15 C. Cls. R.,' 126), and we are not disposed to disturb the agreement of the parties for this small difference. Deminimis *non curat lex.*

We accordingly gave tbe claimant judgment for tbe 50 per cent, retained by tbe Government in that case, and can see no reason why we should not do the same in tbis case. Tbe amount is $390.24.

Tbe second claim is for deductions made from tbe contract price for- transportation of mails under a time contract. ’ Tbe legal questions raised by tbe findings differ in no respect from those already decided by tbe Supreme Court in tbe cases of the *Chicago and Northwestern Railway Company*(104 U. S. R., 680) and the Chicago, *Milwaukee and Saint Paul Railway Company*(104 U. S. R., 687). We are constrained by tbe rulings in those cases to give-judgment for tbe claimants for tbe full amount of tbis branch- of their claim, viz:

> Retention on route 26009 .. $8,200 23

> Retention on route 26010 . 2,613 63

> Retention on route 27025 . 6,381 32

> Total. 17,195 18

The judgment of tbe court is that tbe claimants recover of the defendants tbe sum of $17,585.42.

The Chief Justice took no part in the decision of tbis case.