
    JACKSONVILLE, PENSACOLA AND MOBILE RAILROAD COMPANY v. THE UNITED STATES.
    [No. 14572.
    Decided February 15, 1886.]
    
      On the Proofs.
    
    A land-grant railroad transports tire mails under a written contract from 1871 to 1875. Then it continues the service without entering into a new contract. In 1876 10 per cent, is deducted from the compensation under the act 12th July, 1876, and in July, 1878, 5 per cent, under the act 17th June, 1878. The railroad receives and delivers the”mails at all post-offices within 80 rods of the road, for which no distinct compensation is paid. The Postmaster-General continues to make deductions and impose fines as under the written contract.
    I.The Post-Office Regulations coucerning contract sections relate to the whole mail service. They do not compel the Postmaster-General to make time contracts in all cases, nor prevent him from accepting services which may be terminated at will by either party, and they do not apply to cases where it is not practicable or convenient to make time contracts.
    II.On the expiration of an express mail-transportation contract for a fixed period, continued service, rendered and accepted, does not imply a new contract for a like period; the more reasonable implication is that the service is temporary, and terminable at the option of either party.
    III. A “land-grant road" is under a perpetual contract made by the Land Grant Act 17th Mag, 1856 (11 Stat. L., § 5, p. 15), to carry the mails at such rates as Congress may by law direct or the Postmaster-General determine.
    IV. A land-grant road carrying the mails without an express contract with the Postmaster-General was subject to the reductions of compensation ordered by the Acts 12th July, 1876, and 17th June, 1878 (19 Stat. L., § 1, p. 78; 20 id., § 1, p. 140).
    
      V. Land-grant roads are bound to transport the mails at such rates as Congress may direct or the Postmaster-General determine; subsidized roads are bound to transport them at fair and reasonable rates not in excess of those charged, to private parties for the same kind of service; other railroads are not bound to perform the service, hut if they do, under an implied contract, the rate of compensation must be ascertained from the statutes, the regulations, orders, and practice of the Department, and the attending circumstances.
    VI. A well-established practice, such as railroads receiving and delivering mail matter at all offices within 80 rods of the road without extra charge, must be deemed to have been considered by Congress and the Department when fixing the rate of compensation for-railroad mail transportation, and performing that service without objection in accordance with the established .practice will preclude the road from seeking additional pay for it.
    VII.The Act 25th February, 1871 (16 Stat. L., 43), and the Revised Statutes- (§ 12) which provide that the repeal of a repealing act shall not revive the original act, prescribed a rule of construction and do-nothing more.
    VIII.It was not intended by Congress that the provision of the Revised Statutes (5 3962) authorizing the Postmaster-General to make deductions and impose fines in the mail-transportation service should be repealed by the Act 3d March, 1879 (20 Stat. L.. $ $ 5, 33, p. 355), and the Act lith June, 1880 (21 id.-, 177).
    IX.Where a railroad admits its delay in delivering the mails and concedes the reasonableness of the Postmaster-General’s reduction therefor, it cannot recover. The maximum compensation authorized by Congress and the amount allowed by the Postmaster-General are for the whole service according to schedule time.
    
      The Reporters’ statement of the case:
    The following are the facts as found by the court:
    I. The claimant is a railroad company duly incorporated by the State of Florida. Its road was constructed in whole or in part by a land grant made by Congress on the condition that' the mails should be transported over said road at such price as Oongress should by law direct. (Actof May 17, 1856, ch. 31, §5; 11 Stat. L., 15.)
    II. From July 1, 1871, to June 30,1875, the claimant carried the mails of the United States on the route named in the petition under the following contract:
    “ Ho. 6402. $15,408.75 per annum.
    “ This article of contract, made the 18th day of August, in the year one thousand eight hundred and seventy-one, between the United States of America (acting in this behalf by their Postmaster-General) and the Jacksonville, Pensacola and Mobile Railroad Company, by James Anderson, its gen’l superintendent, and F. H. Flagg and F. B. Papy, as sureties, wit-nesseth:
    “ That whereas the said railroad company has been accepted according to law as contractor for transporting the mail on route No. 6402, from Jacksonville, Fla., by Baldwin, Sand-erson, Olustee, Lake City, Wellborn, Houston, Live Oak, Columbus, Madison, Sandy Ford, Williamsburgh, Monticello, Ancilla, Bailey’s Mills, Tallahassee, and Midway, to Quincy and back, six times a week, with a branch from Tallahassee to St. Mark’s and back, three times a week, at fifteen thousand four hundred and eight and xfo dollars per year, for and during the term beginning July first, eighteen hundred and seventy-one, and ending June thirty, eighteen hundred and seventy-five, being at the rate of $75 per mile on main route and $30 on St. Mark’s branch:
    “Now, therefore, the said Jacksonville, Pensacola and Mobile Railroad Company, as contractor, and th'e said F. H. Flagg and F. B. Papy, 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) 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 special agent, at the expense of the contractor, for the assorting and safe-keeping 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 fake 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, provided the latter are not over one-quarter of a mile from a depot or station.
    “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 increased speed of the mail trains, if desired by the Postmaster- Gen eral.
    “ 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, as per act of Congress approved August 31, 1852, except such as may have relation solely to some article at the same time conveyed. (Act March 3, 1845.)
    “ 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 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, 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 mail.
    
      ‘‘ 8th. That the Postmaster-G-eneral may dispense with the service entirely, if required by the public interest, he allowing one month’s extra pay upon the amount deducted, or he may annul the contract, without making such allowance, for repeated failures of the contractors to perform any of the stipulations of the contract, for violating the post-office law, or disobeying the instructions of the Department.
    “9th. 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.
    u 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.7
    “ 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 general superintendent and their sureties have hereunto set their hands and seals the day and year set opposite their names respectively.
    
      “ [Duly signed, sealed, and delivered.]77
    
      III. No further formal written contract was made between the parties. The claimant- continued to carry the mails over its road during the time mentioned in the petition to July 1, 1880, and was regularly paid, without protest or objection, as far as appears, in accordance with the orders, circulars, and notices hereinafter set out, and the regulations of the Post-Office Department, unless it is entitled to recover additional compensation upon the facts set out in findings ix and x.
    IV. The Postmaster-Gen eral issued the following orders at .their respective dates, of which the claimant had due notice:
    “ Oct. 21, 1875.
    
      “ Recognize service of the Jacksonville, Pensacola and Mobile R. R. Co. in carrying the mails between Jacksonville and Chattahoochee River, with branch from Tallahassee to Saint Mark’s, for the quarter ended September 30, 1875, at the rate of $20,070.00 per annum (being $90 per mile per annum on main line and $30 per mile on branch), and refer to Auditor to-pay, subject to fines and deductions and to readjustment on returns to be furnished for Nov., 1875, and January, 1876, with the understanding that no payment is to be made for service performed subsequently to Sept. 30, 1875, until such returns are at hand.”
    “ March 21, 1876.
    “ Recall order of October 21, 1875, No. 7214, and authorize the Auditor of the Treasury for the Post-Office Department to pay the Jacksonville, Pensacola and Mobile Railroad Company, quarterly, for carrying the mail between Jacksonville and Chattahoochee River, from July 1, 1875, to June 30,1876, at the rate of $17,519.40 per annum (being $80 per mile per annum for 213.52 miles and $20 per mile for 21.89 miles on branch), unless otherwise ordered, subject to fines and deductions.”
    V. In the spring of 1876 the Postmaster-General, for the purposes mentioned in Revised Statutes (§ 4002), sent to claimant for the route named in the petition a railroad distance circular and a railroad weight circular, in the usual form [inserted in full in the findings on file, but unnecessary to be included herein], and the information therein requested was duly furnished.
    VI. On the 12th day of October, 1876, in accordance with the section and information as to distance and weight mentioned in the next preceding finding, and the act of July 12, 1876, chapter 179, the Postmaster-General readjusted the compensation to be paid claimant for carrying the mail over this. route, and transmitted to the Sixth Auditor an order therefor in the following form :
    “ Oct. 12, 1876.
    “Authorize the Auditor of the Treasury for the Post-Office Department to pay the Jacksonville, Pensacola and Mobile R. R. Co., quarterly, ior carrying the mails between Jacksonville ■and Ohattahooche River, on the main line, and from Tallahassee to St. Mark’s on the branch, from July 1, 1876, to June 30, 1880, at the rate of $12,692.77 per annum, being $57.60 per mile per annum for 213.52 miles and $18.00 per mile per annum for 21.89 miles, unless otherwise ordered, subject to fines and deductions under sections 1 and 13 of the act of July 12, 1876, service thirteen times to Tallahassee, 165 miles, seven thence to Quincy, 24 miles, and six the residue of main line, 20 miles, ■equivalent to 11¿ trips and three round trips per week on branch.”
    On the same day the Postmaster General also sent claimant ■a circular notice of adjustment of pay for the route in the following form:
    “ CIRCULAR.
    •“ Reduction of pay for mail service on land-grant railroads under act of Congress of July 12, 1876.
    “Post-Ofeice Department,
    “Office of the Second Ass’t
    “ Postmaster General,
    “ Washington, D. C., October 12, 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 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 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 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 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, on your road, route 16002, between Jacksonville and.' Chattahoochee Eiver, and branch from Tallahassee to St. Mark’s,, the compensation will be reduced from $17,519.40 per annum’ (the amount warranted by the latest returns under the act of March 3,1873) to $12,692.77 per annum, the reduction amounting to $4,826.63 per annum, of which the sum of $1,751.94 is due to the proviso in the first section and the sum of $3,074.70 to the thirteenth section of the act of July 12,1876, above quoted.
    “ Yery respectfully, your obedient servant,
    11J. L. French,
    “ Actmg 2d Ass't P. M. General«,
    “ To Mr. James Anderson,
    “ Gen’l Sup’t, <&c., Tallahassee, Fla.”
    
    This service was curtailed by the following order:
    “Feb’y 25, 1878.
    “From October 1st, 1877, restate route so as to omit Jacksonville, Baldwin, Darbyville, Sanderson, and Olustee (transferred to Florida Central E. E.), and begin at Lake City, antP state distance at 154.23 miles on main line and 21.89 miles or. branch, and authorize payment for service from Oct. 1st, 1877, to June 30, 1880, at the rate of $9,277.66 per annum, being-$57.60 per mile per annum on main line (land grant) and $1,806’ per mile per annum on branch from Tallahassee to Saint Mark’s,, unless otherwise ordered, subject to fines and deductions.
    “ Brady.”
    YII. The Postmaster-General, on the 23d day of July, 1878,. readjusted the compensation to be paid to the claimant for the* transportation of the mails on said routes from July 1, 1878, in> accordance with the Act of June 17,1878, chapter 259 (1 Supp.. Eev. Stat., 359), by the following order:
    “ July 23,1878.
    “ Authorize the Auditor to decrease the pay of the Jacksonville, Pensacola and Mobile Eailroad Company for carrying the-mails between Lake City and Chattahoochee and branch, Tallahassee to Saint Mark’s, from July 1, 1878, to June 30, 1880, at: the rate of $463.88 per annum, leaving the pay from that date-$8,813.78 per annum ($54.72,154.23 miles, and$17.10,21.89 miles), being a reduction of 5 per centum from the rates fixed for weight of mails in accordance with the act of June 17,1878, and amend ■order of June 29, 1878 (4821), so as to make the deduction .$82.08 instead of $86.40 as therein stated.
    
      1856 — yol 21-11
    
      “ Beady.”
    On the same day he notified claimant of the readjustment by \the following letter:
    “ CIRCULAR.
    
      Readjustment of pay for mail service on railroad routes under act of Congress of June 17, 1878.
    “ Post-Oeeice Depabtment,
    “OEEICE OE THE SECOND ASSISTANT
    “ Postmaster-General,
    “ Washington, JD. C., July 23d, 1878.
    “ Sir : The act of Congress making appropriations for the service of the Post-Office Department for the fiscal year ending June 30th, 1879, and for other purposes, approved June 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, 1878, 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 bases 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 30th, 1877, and for other purposes,” approved July 12th, 1876.’
    “ 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 16002, between Lake City and Chattahoochee, from July 1, 1878, to June 30, 1880, $463.88 per annum, leaving the pay from the first named date $8,813.78 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 Assistant Postmaster-General.
    
    “ To C. H. Allen, Esq.,
    “ Gen’l Mam. Jacksonville, Pensacola
    
    
      and Mobile B. B., Tallahassee, FlaT
    
    The service was again curtailed by the following order:
    “ Curtail service on main line to end at Chattahoochee from July 7th, 1878, decreasing distance 1J miles, and deduct $86.40 from annual pay of railroad company, being pro rata.
    “ French.”
    
      VIII. The following correspondence took place in relation to this readjustment :
    44 Jacksonville, Pensacola and Mobile R. R.,
    4 4 Tre a sdrer’s Oeeice,
    44 Tallahassee, Fla., May 26,1879.
    “ Hon. 3d Ass’t P. M. Gen’l,
    44 Washington, D. O.:
    
    44 D’r Sir : Please send me copy of the last contract between the P. O. Department ami this road, and extracts of such laws as relate to the compensation of R. R.’s for carrying the mail.
    44 And oblige, y’rs truly,
    44 Geo. Lewis, IV.”
    44 Jacksonville, Pensacola and Mobile R. R.,
    44 Treasurer’s Oeeice, liTallahassee, Fla., May 26, 1879.
    44 POSTMASTER GENERAL,
    44 Washington, £>. G.:
    
    44 Dear Sir : Please send me, at your earliest convenience, a copy of the order dated July 23, 1878, reducing the pay allowed this road $20.52 per quarter, from July 7 to Sept. 30, ’78, and as per ac’t of the Auditor of the P. O. Dep’t, from the last-named date to this.
    “This r’d has no knowledge of any reason why such deduction should be made from the ain’t — $8,813.78 per annum — on $2,203,44 p’r q’r, as fixed by y’r circular of July 23.
    441 inclose acc’t, w7’h please return.
    44 Y’rs,
    44Geo. Lewis, Treas.”
    
    ' 44 Post-Oeeice Department,
    44 Oeeice oe the Second Assistant
    44 Postmaster-General,
    44 Washington, 1). G., June 2,1879.
    44Sir: Your favors of the 26th instant have been duly received.
    “In reply, I beg leave to say that the pay of the Jacksonville, Pensacola and Mobile Railroad Company, route 16002, between Lake City and Chattahoochee River, and on branch from Tallahassee to Saint Mark’s, on the 30th Juue, 1878, was .at the rate of $9,277.66 per annum. This was reduced 5 per cent, by act of June 17.1878, leaving the pay from July 1,1878, nt the rate of $8,813.78 per annum.
    44 On the 7th July, 1878, the main route was curtailed to end at Chattahoochee, decreasing distance 1¿ miles, and pay’ $82.08 per annum pro rata, leaving the pay from July 7, 1878, at the rate of $8,731.70 per annum.
    44 There is no formal contract between your company and tbis Department for the performance of mail service on your road ; the service being rendered by the company, and accepted and paid for by the Department, under the provisions of law governing the transportation of mails by.railroad, of which a. transcript is inclosed in another envelope. The account is returned in compliance with your request.
    “Very respectfully, &c.,
    
      “ Thos. J. Brady,
    “ /Second Asst. P. M. Gen?L
    
    “ Geo. Lewis, Esq.,
    “ Treasurer Jacksonville, Pensacola
    
    
      and Mobile B. B. Go., Tallahassee, Fla.”
    
    IX. In carrying the mails from July 1, 1876, to July 1, 1882r the claimant delivered and received the mails to and from all post-offices within 80 rods of the line of the road (of which there were several), as required by the rules of the Department, and as it had previously done, for which it was paid nothing in addition to the prices hereinbefore set out.
    X. Between July 1,1880, and July 1,1882, the sum of $48.72 was deducted by the Postmaster-General, in accordance with the uniform practice for a long series of years from the compensation fixed by law and the order of the Department for non-delivery of mails on several occasions upon the days required by schedule time, although they were subsequently delivered.
    XI. It has been the usage of the Department ever since the establishment of the Railway Mail Service to require railroad companies carrying the mails to deliver them into intermediate offices within 80 rods distance from the stations, and since 1854 it has been the practice in the advertisements for proposals to give notice that “ On all railroad and steamboat routes the contractors will be required to deliver the mails into the post-offices at the ends of the routes, and into all the intermediate post-offices not more than 80 rods from the landing of railroads.” In the authorized edition of Postal Laws and Regulations, printed in 1873, is the following:
    “ Sec. 349. In connection wiih railroad and steamboat routes,, mail messengers are appointed to carry the mail to and from post-offices, when such offices are more than eighty rods from the steamboat landing or railroad station. * * *
    “Railroad and steamboat contractors are to have the service performed at all offices within a quarter of a mile of their depots, stations, or landings, as well as at tbe terminal offices of their routes.”
    In the authorized edition of the Eegulations printed in 1879 the same provision appears as follows :
    
      “ Sec. 639. When railroad companies must deliver mails to post-offices. — Eailroad companies are required to take the mails from and deliver them into the terminal post-offices, and to all intermediate post-offices located not over eighty rods from the line of road, and the distances from the terminal depots to the post-offices where railroad companies deliver the mails, are paid for by the Department as a part of the length of the route.”
    The following regulation relates only to railroad mail service:
    “Sec. —. The rates of compensation are computed upon the average weight of mails per day carried the whole length of the route; but the rates fixed by law require not only a certain weight of mails, but also that the mails shall be carried with due frequency and speed, and that suitable room fixtures and furniture shall be provided in a car or apartment of car, properly lighted and warmed, for route agents to accompany and distribute the mails as accessories to the weight of mails in ■order to entitle a company to the maximum rates of pay. The specific requirements of the service, with regard to these items, will be made known through the Geneial Superintendent of the Eailway Mail Service. Tbe requirement as to due frequency, and the size of the mail car or apartment, are at all times to be determined by the Department.”
    The following relates to the whole mail service, and is not applicable to the railway service alone:
    “ Sec. 255 [Eegulations of 1873]. The United States is divided into four contract sections. A letting for one of these sections occurs every year, and contracts are made at such lettings for four consecutive years, commencing on the first day of July. The sections and their current contract terms are—
    “1. Maine, New Hampshire, Vermont, Massachusetts, Ehode Island, Connecticut, and New York; current term to end June 30, 1877.
    “2. New Jersey, Pennsylvania, Delaware, Maryland, District of Columbia, and Ohio; current term to end June 30, 1876.
    “3. Virginia, West Virginia, North Carolina, South Carolina, Georgia, Florida, Alabama, Mississippi, Arkansas, Louisiana, and Texas; current term to end June 30, 1875.
    “4. Michigan, Indiana, Illinois, Wisconsin, Iowa, Missouri, Kentucky, Tennessee, California, Minnesota, Oregon, New Mexico, Utah, Washington, Nebraska, Kansas, Arizona, Colorado, Idaho, Montana, Dakota, and Wyoming; current term to end June 30,1874.”
    
      Afterwards, before July, 1875, the divisions were changed and made as follows:
    “Sec. 574- [Regulations of 1879]. The United States is divided into four contract sections. A general letting for one of these sections occurs every year, and contracts are made at such general lettings for four consecutive years, commencing-on the first day of July. The sections and their current contract terms are—
    “1. Maine,Néw Hampshire, Vermont,Massachusetts, Rhode Island, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, District of Columbia, Virginia, and West Virginia; cujrent term, July 1, 1877, to June 30, 1881.
    “2. North Carolina, South Carolina, Georgia, Florida, Alabama, Mississippi, Tennessee, Kentucky, Ohio, and Indiana j current tenn, July 1, 1876, to June 30, 1880.
    “ 3. Illinois, Michigan, Wisconsin, Minnesota, Iowa, and Missouri; current term, July 1, 1879, to June 30, 1883.
    “ 4. Arkansas, Louisiana, Texas, Indian Territory, Kansas,, Nebraska, Dakota, Montana, Wyoming, Colorado, New Mexico, Arizona, Utah, Idaho, Washington, Oregon, Nevada, and California ; current term, July 1,1878, to June 30,1883.”
    The. extent of the practice of making written time contracts-with railroad companies is shown by the following table:
    
      
    
    Since the passage of the Act of June 11,1880, chapter 206 (1 Supp. Rev. Stat, § 549), repealing the fifth section of the Act of March 3, 1879, chapter 180 (1 Supp. Rev. Stat., 454), the Postmaster-General has continued to make deductions and impose fines on the railroad mail service as before, according to - Revised Statutes, section 3962.
    
      Messrs. A. J. Willard and Samuel F. Phillips for the claimant.
    
      Mr. Edward M. Watson for the defendants.
   Richardson, Oh. J.,

delivered the opinion of the court:

The claimant corporation is a land-grant railroad, aided under the provisions of the Act of May 17, 1856, chapter 31, the fifth section of which is as follows (11 Stat. L., 15):

“ Sec. 5. And be it further enacted, That the United States mail shall be transported over said roads and branch, under the direction of the Post-Office Department, at such price as Congress may by law direct: Provided, That uuttl such price is fixed by law the Postmaster-General shall have power to determine the same.”

The mails of the United States were transmitted over its road from July 1, 1871, to June 30, 1875, under a written contract with sureties, set out in finding ii. From July 1,1875, to June 30, 1876, they were carried under orders of the Postmaster-General fixing the rate of compensation set out in finding iv, without any formal written contract. The company has been fully paid up to the latter date, in accordance with said contract and orders, and there is no controversy in relation thereto.

Siuce June 30, 1876, the mails have been carried as before, but without any formal written contract, and the claimant has been paid in accordance with the statutes in force at the time, and the regulations, orders, and general practices of the Post-Office Department.

Three claims are set up by the company, in addition to the amounts paid, each raising a distinct question of law.

1. In 1876, when the Postmaster-General readjusted the maximum compensation which might be allowed under Revised Statutes, section 4002, he deducted therefrom 10 per cent., as required by the Act of July 12, 1876, chapter 179, section 1 (1 Supp. Rev. Stat., 225), and allowed and paid the claimant accordingly from July 1, 1876, to July, 1878, when he made another deduction of 5 per cent., under the Act of June 17,1878, chapter 259,section 1 (1 Supp. Rev. Stat., 359), and paid according to both deductions to June 30, 1880. (Findings v, vi, vii, viii.) The amount thus deducted from the maximum which the Postmaster-General might have allowed under section 4002 of the Revised Statutes is what is now demanded in this action.

The company claims that on the 1st day of July, 1876, it entered into a contract with the defendants by which the mails were to be carried for the period of four years from that date •-at the maximum compensation authorized by Eevised Statutes, «eetion 4002, which could not be reduced either by the Postmaster-General or by Congress during the term of the contract. If such a contract existed the claimant would be right in its allegation that the compensation could not be reduced, as was Meld in the case of the Chicago and Northwestern Railway Company v. United States (104 U. S. R., 681), where it was decided that [the reduction acts of 1876 and 1878, above mentioned, •“apply only to contracts thereafter made, or sueh as did not require the performance of the service for a specific period,” in the language of the head-note of the case as reported.

'The vital question, then, is whether or not such a time contract was entered into by the parties. There was no written •contract, as in the case of the Chicago and Northwestern Bail-way Company, but the claimaut relies upon an alleged implied •contract which it insists springs out of the following circumstances :

By one of the regulations of the Department it is provided as follows:

“ The United States is divided into four contract sections. .A general letting for one of these sections occurs every year, •and contracts are made at such general lettings for four consecutive years, commencing on the first day of July. (Finding xi).”

The claimant’s road was within the section for which contracts were to end June 30, 1875, until the regulation was altered, when it came within the section for which they were to •end July 30, 1876. (Finding xi.)

The only written contract of the parties was made August 18, 1871, to run from July 1, 1871, to June 30, 1875. It was •drawn with strict formality, contained many provisions, and its ^performance on the part of the company was secured by two ¡sureties. (Finding ii.) When it expired it was never renewed.

From July 1, 1875, to June 30, 1876, the service was performed under orders of the Postmaster-Geoeral, dated October 21,1875, and March 21,1876, the latter of which expressly confined its operation to June 30,1876, “unless otherwise ordered.” ^Findings iii and iv.)

The taking and carrying the mails on and after July 1,1876, •the claimant insists, created an implied contract, at the pre-ex-isting rates, for four years, because the company’s road was within the section for which contracts was made for that period of time.

In this view we do not concur. The regulations as to contract sections are not made for railroads alone, but for the whole mail service, and include the “ star-route ” service, for which written contracts are understood to be uniformly entered into. It is very clear, we think, that they are intended to apply only to written contracts, and are merely suggestions that the Postmaster-General, when it is found necessary or advantageous to enter into such coutracts, will so make them that the whole will expire during one Presidential term, in classes, at regular yearly intervals, so as to be most convenient and least embarrassing to the next succeeding administration. They do not compel the Postmaster-General to make time contracts in all cases, nor prevent him from accepting services to be paid for 'só long as performed, aud which may be terminated at any time by either party, as circumstances may require. Nor are railroads obliged to make time contracts. It is entirely optional on their part, aud finding ii shows that the Postmaster-General has been able to make, comparatively, but a. small number of such coutracts with railroad companies, the proportion being much less than 10 per cent, of the whole railroad service, and he has practically abandoned the effort. The regulations as to contract sections, therefore, have no application to cases where it-is not practicable or convenient to make time contracts in writing. When written time contracts are entered into the contractors are required to furnish sureties, as the claimant did in the written contract set out in finding ii; aud it would be most unreasonable to hold that when, on the expiration of such a contract, the contractor continues for a day or more to perform like service, the implication of the intention of the parties is that h,e may and shall continue it for a like period of time without sureties. (Eastern Railroad Case, 20 C. Cls. R., 42.) It is a much more reasonable view that the intention of the parties is that the service is continued only at the option of either party, until they can agree upon the terms of a written contract.

Thecase of Railway Company v. United States (101 U. S. R., 543) is cited in support of the claimant’s position. We considered that decision in the Eastern Railroad Case (20 C. Cls. R., 42), to which we refer for a full exposition of our understanding of its force and effect. We pointed out that the element of length of time of the contract was not involved therein, and that the Supreme Court held only that a contract existed, in the language of the Chief Justice, “ that payment should be made for what was done.”

The claimant is a land-grant railroad company, and as such is under a perpetual contract with the United States, made by the act of 1856, to transport the mails at such prices as Congress may by law direct, and in the absence of that direction, then such as the Postín as ter-General may determine. When, therefore, on and after July 1,1876, the company carried the mails without any special contract with the Postmaster General, it was bound by the contract of that act, making its compensation subject to the laws of Congress. The company had no option in the matter. It was obliged to carry the mails, and to accept whatever price Congress might determine, aud that price might be established after as well as before service performed.

There was no occasion for making a time contract with this company. It was bound by the act of 1856 to perpetual service in transporting the mails, and when the parties ceased entering into such, contracts it is the proper inference that they intended that the service should be performed under the original contract in the act of 1856.

This seems to have been the understanding of both the Department and the company at the time the. service was performed. By the correspondence set out in finding viii it appears that when the treasurer of the company wrote to the Postmaster-General, May 26,1879, for an explanation as to why the small reduction of $20.52 per quarter was made (which in the reply was explained to be owing to a curtailment of the length of the route), the treasurer stated that he had no knowledge of any reason why such a reduction should be made from the amount, $8,813.78 per annum, or $2,203.44 per quarter, as fixed by the circular of July 23. The circular thus referred to is the one set out in finding vii, wherein the company is notified of the 5 per cent, deduction made under the act of 1878. That reduction is not objected to nor questioned.

Congress having fixed the price of the claimant’s compensation, as it had a right to do, and the same having been paid, no cause of action arises on this branch of the case.

There is some difference between the land-grant railroad companies and other railroad companies as to their obligations in carrying the United States mails which has been mentioned in decided cases and which it may be well to note.

While the land-grant companies are bound to transport the mails at prices fixed by Congress, those roads which are aided with bonds are entitled to fair and reasonable compensation not in excess of the rates paid to private parties for the same kind of service. (Union Pacific Railway Case, 20 C. Cls. R. 70.) But both are obliged to perform the service. Other companies are not bound to perlorm the service at all against their will. When they perform service without express contract, their compensation depends wholly upon implietd contracts to be inferred from and interpreted by the general laws of Congress and the regulations, orders, and practice of the Post-Office Department and other attending circumstances, as in the Eastern Railroad Case, before cited.

2. Another claim is for delivering and receiving the mails to and from all post-offices within 80 rods of the line of the road, for which the company has been paid nothing in addition to the rates fixed for the transportation of the same over the railroad route. Additional compensation is refused by the Post-Office Department for the service, on the ground, as alleged, that it is rightly included in the route for which the rate of compensation was fixed by Congress and the Postmaster-General. In this we think the Department is right.

For a long period of time, extending back to the first establishment of the railroad mail service, it has been the practice to include the delivery of the mails within 80 rods of railway stations as part of the railroad route, and that has been promulgated in all advertisements for proposals, and in the official regulations published by authority, as shown by finding xi. A requirement to that effect was inserted in the claimant’s written contract (see 1 st of the numbered articles at the end thereof, in contract set out in finding ii), and was no doubt in all written contracts.

Such a well-established practice, in our opinion, must have been considered by Congress in fixing the maximum compensation, and by the Postmaster-General in making his orders allowing the full amount of the maximum, and therefore the pay for such service must be held to be included in the general compensation fixed for the routes.

If tliis service was properly included in the railroad route, ■then the claimant, being a land-grant company, was conclusively bound to accept the compensation fixed by Congress and the Postmaster-General. If it was not properly included in the railroad route, then the claimant was not bound to perform it, and as it performed the same without objection or question, it must be held to have done so in conformity with the well-known regulations and practices of the Post-Office Department. Had it objected in season the Postmaster-General might have ■reduced its route compensation so far below the maximum as to cover the cost ot this delivery to offices within 80 rods of ■stations. Having made no such objection, the Postmaster-•General had a right to infer that it acquiesced in the practice ■of the Department, and by such acquiescence it is bound.

For these reasons we have not included in the findings of facts any separate value for this service.

3. There is still another claim for $48.72 which was retained from the compensation fixed by Congress and the Postmaster-General for non-delivery of mails on several occasions upon the •days required by schedule time, although they were subsequently delivered.

The amount in this case is small, but the principle of law involved is understood to be one of great magnitude and importance to the Post-Office Department and to all the railroad ■companies, affecting, as it does, the accounts and settlements •of the whole railroad mail service.

On behalf of the claimant the power of the Postmaster-General to make deduction in such case is denied, on the ground, as •alleged, that his authority to do so under Revised Statutes, •section 3962, has been repealed.

That section is as follows."

“Sec. £962. The Postmaster-General may make deductions from the pay of contractors, for failures to perform service according to contract, and impose fines upon them for other delinquencies. He may deduct the price of the trip in all cases •where the trip is not performed; and not exceeding three times ■the price if the failure be occasioned by the fault of the contractor or carrier.”

The fifth section of the appropriation Act of March 3, 1879, chapter 259 (1 Supp. Rev. Stat., 453), provided:

“Sec. 5. That the Postmaster-General shall deduct from the (pay of the railroad companies, for every failure to deliver a mail within its schedule time, not less than one-half of the price-of the trip, and where the trip is not performed, not less than the price of one trip, and not exceeding, in either case, the price of three trips;
“Provided, however, That if the failure is caused by a connecting road, then only the connecting road shall be fined.
“ And where such failure is caused by unavoidable casualty,, the Postmaster-General, in his discretion, may remit the fine.
“And he may make deductions and impose fines for other delinquencies.”

By section 33 it was enacted that “all acts or parts of acts inconsistent with the provisions of this act are hereby repealed.”’

Section 5 of the act of 1879 was expressly repealed by the-Act of June 11, 1880, chapter 206 (1 Sapp. Rev. Stat., 549).

It is contended that section 3962 of the Revised Statutes was-virtually repealed as to railroad companies by section 5 of the act of 1879, and so remained notwithstanding the express repeal of the latter act. The following section of the Revised Statutes is relied upon in support of this position:

“ Sec. 12. Whenever an act is repealed which repeals a former act such former act shall not thereby be revived.”

This twelfth section prescribes a rule of construction, as appears by the Act of February 25, 1871, chapter 71 (16 Stat. L.,. 43), wherein its provision was first enacted. It does nothing more, and we are to consider whether, having that section in view, Congress intended, by the acts of 1879 and 1880, to repeal section 3962 of the Revised Statutes as to railroad companies.

In our opinion there is no such inconsistency between the provisions of Revised Statutes, section 3962, and the act of 1879' as to work a repeal of the former, even in part, by the repeal of the latter by the act of 1880, in such a sense that section 12: of the Revised Statutes has any application to the case.

We do not think that in authorizing deductions to be made from the regulation rates for partial non-performance or imperfect performance of the services it was the intention of Congress to apply this rule to all other contractors and let the railroad companies escape it altogether.

It was held by the Supreme Court of Wisconsin in relation to-similar legislation that “when a statute merely exempts a particular class of cases from the provisions of a previously existing general law which continues in force the repeal of the excepting statute operates to bring such cases under the general law.” (Smith v. Hoyt, 14 Wis., 252.)

Section 3962 of the Revised Statutes applies to all mail service, and is permissive, while the act of 1879 applies to railway-mail service alone, and is obligatory upon the Postmaster-General in the particular cases therein mentioned, leaving all other «ases permissive, as before. The Postmaster-General was authorized to do under said section 3962 what he was obliged to do under the act of 1879.

But there is another view of this branch of the case, independent of these statutes, which are only directions by Congress to a public officer and are not binding upon others unless agreed to by insertion in their contracts, as was the case with the claimant’s written contract, clause 6 (finding ii), or by performing service under an order making the same “subject to fines and deductions,” as. in the orders of October 21, 1875, March 21,1876, and October 12,1876, respecting the claimant’s service (findings iv and vi), or by other assent thereto which may be inferred from the conduct of the parties and the course of business between them.

The maximum compensation authorized by statute and the amount allowed thereunder by the Postmas ter-General are for the whole service expected of such railroad companies according to schedule time and other regulations of the Department. For any failure on the part of a railroad company to perform the entire service and to carry the mails in accordance with the standing order and regulations of the Department, the Postmaster-General had the right, and it was his duty, to withhold and deduct from the authorized compensation a reasonable amount as damages for such failure. That was all he did in this case. The two material things which justify the action of the Postmaster-General are not denied. Delay in delivering the mails on certain occasions is admitted in the petition, and the reasonableness of the amount deducted is not in controversy.

The claimant disputes the liability to any deductions whatever for non-delivery of the mails on time, and claims the whole price for perfect service, notwithstanding any of its delinquencies. To this position of the company, as to its rights and liabilities, we cannot accede.

On the whole case, the claimant is not entitled to recover, and the petition must be dismissed.  