The herald., 1896-08-12
The GOVERNMENT RIGHT
Special Charges Over Land
Grant Roads
MANY MILLIONS IRE involved
The Income Tax Not in 1t With
This Amount
AN IMPORTANT DECISION
Judge Oin Wcllborn Hands Down Far.
Reaching Opinion
Hauling the Regular Army Soldiers for tho
United States
The Atlantic and Pacific and Southern Pacific
Railroads Get the Shors End In
an Argument Wiz, Urcls
Samuel

Judge Olin Wellborn filed an opinion
in the United States district court yes
terday which viii mean to the general
government. according to special at
torney j. II. Gail. who represented the
United States, at least $40. 100000 year.
The title Of the case is The Atlantic and
Pacific Railroad company. plaintiff, vs..
the United States, defendant.
The suit was brought 10 recover
charges made by the plaintiff company
for the TRANSFORMATION Of private sol
dier in the regular army from AlbuGuer-
que to Prescott Junction, Arizona. Jur-
isaiction of the court in the suit was
conceded by the defendant as having
been derived from the act of congress of
March 8. 1887, entitled AN act for bring
ing suits against the United States"
The controversy III the case was limited
10 the question whether the defend
ant was liable to the plaintiff for the
whole or only part of the amount sued
for. The Southern Pacific company at
an early stage in the litigation was al
lowed to join issues with the Atlantic
and Pacific.
Dt Noui iipANlS tlittt tiic <AtittI tlN anu
Pacific is a corpora tion created by an
act of congress approved July p, 1866,
after detailing the causes for the crea-
ton Of the corporation and setting forth
its objects. Judge Wellborn finds that
in the act of congress making appropria-
tons for the army for 1898, rates were
established for land grant roads, it is
expressly stipulated that only 80 per cent
of the regular tariff shall be charged
the government for passenger service.
The fare between Albuquerque and
Prescott Junction is S25.75 and between
Albuquerque and ISleta junction it is
10 cents. The government soldier tariff
should under the circumstances have
been $135Sla. This sum was rendered
the company by the auartermasters de-
partment of the army and was accepted
only under protest. full fare being de-
manded and being sued for, to end the
controversy which has been on between
the government aided roads and the
United States for years.
Judge Wellborn in his decision finds
for the war department in every issue
raised by the pleadings. and holds that
for the sake of the facts the rates of
transporta ton fixed by the war depart
ment are to be deemed reasonable and
that because of the large amount of bus
mess transacted by the government, the
war department is entitled to a special
rate. Quoting the late Chief Justice
Waite of the federal supreme court, the
court states: 1T is now settled in this
court that state mas power to limit the
amount of charges by railroad compa-
MES for the transportation of persons
and property within it's Jurisdiction, un-
less restrained by some contract in the
charter or unless what is done amounts
to regulation Of foreign or interstate
commerce." This power of regulation
Judge Wellborn holds, is a power of
government continuing in its nature,
and if it can De bargained away at all
it can only be by words of positive grant
or something which is in law equiva-
lent. If there Is a reasonable doubt, 1t
must be resolved in favor of the power.
This power of regulation also possesses
in interstate commerce, says the judg-
ment.
The costs Of the action are taxed to
the plaintiff corporation. which by the
Judgment secures from the government
a verdict for $3.50.
/ Judge Terry represented the Atlantic
! and Pacific and W. +. Herrin of San
| Francisco, the head of the Southern
| Pacific law department. made a special
| appearance in the issue for that corpo-
ration. The provisions of the opinion do
| not by stipulation go into effect for a
| period of thirty days. There has been
| no intimation of an appeal.