
    THE ATCHISON, TOPEKA AND SANTA FÉ RAILROAD COMPANY’S CASE.
    (12 C. Cls. R., 295;
    not reported in U. S. R.)
    The Atchison, Topeka and Santa Fé Railroad, appellees, v. The United States, appellants.
    
      On the defendants; Appeal.
    
    
      Two of the land-grant railroads bring suits in this court for their services as carriers. Judgmentbeing for the defendants, the claimants appeal. The Supreme Court reverses the judgment, and directs jtidgment to be entered for the claim-
      
      unis for their services cut carriers, “subject to a fair deduction for tlie use, of their respective railroads.” (See 12 C. Gis. B., 35.) In this case the claimants setup a contract arising out of an order of the War Department fixing one-third of ordinary tariff rates as a fair deduction, their acquiescence therein, and the Government’s promise to pay the balance. The court below found the same facts substantially on the first trial. The claimants move, on the mandate of the Supreme Court and on the findings of the court, below, for judgment accordingly. The defendants insist that they may show that a larger reduction should be made, but stipulate that judgment be entered, with leave to them to more to vacate it. They subsequently, move, on the grounds that such a judgment is not authorized by the. mandate of the Supreme Court, and that a larger reduction should be made. Affidavits and reports of railroad experts are read by bothparties.
    
    The court below holds: (1) That the decision of the Supremo Court (12 C. Cls. R., 35; 93 U. S. R., 442) does not define what “ a fair deduction for the ■use” of a land-grant railroad is, but simply lays down a general rule defining the relation of the, land-grant, roads with the. Government; (2) That this “fair deduction” for the, Government’s right to the free use of the roadway may be t-lie subject of voluntary agreement,; (3) That where the War Department settled what was a fair deduction, it did not bind the roads unless they voluntarily rendered service accordingly, in which case the acts of the parties may be treated as evidence of what was a fair deduction; (4) That a land-grant railroad’s ordinary tariff rates include compensation both as carrier and for the. use, of the road, and that for Government freight there should be such deduction made as would be equivalent pro rata to the rent of the road; (5) That no theoretical formula can be adopted in these oases as a rule for the measure of damages; the practical question is, what was the market value of the Government’s right to the free use of the, road i Judgment for the claimants. The defendants appeal.
    The j udgmont of the court below is affirmed. The Supremo court now holds : (1) That at the- time when the services were rendered the War Department had authority to enter into an agreement fixing- the rate of reduction which should bo made on Government freight as an equivalent for the right to the free use, of the road; whether the department still has authority quiere ; (2) That both parties acquiesced on the first trial in the, deduction which was made by the War Department and adopted by the court below; (3) That the former mandate of this court, directing judgment for the value of the, claimants’ transportation services, “ subject to a fair deduction for the use of their railroads,” was fully comx>liod with by the court below.
    
      The Reporters’ statement of the case: ■
    All of the facts on which this appeal was presented to the Supreme Court will be found in the report of the ease in the court below (12 C. Cls. E., 295).
    
      
      Mr. Attorney-General Devens and Mr. Assistant Attorney-General Simons for the United States, appellants :
    The determination of the question which Ave understand to haAre been remitted by this court is of graA’e importance to the .parties.
    In answer to a rule of the court beloAv in this case, the War Department returned a list of forty-one railroads which had received land-grants on the same conditions as those appearing in this case. The claim herein of $69,501.96 is for one year’s transportation, and a claim for nearly $138,000 has since been filed for transportation of the ensuing nine months by this claimant. In a business of such magnitude eAmn a slight difference in the rate of reduction would amount to a considerable saving to the public.
    The record sIioays that after presentation of the mandate, judgment was entered under a stipulation (entered of record) reserving the above question for adjudication and all defendants’ rights in the premises; then motion by defendants, clearly presenting the issue, and an order overruling the motion, as the only and final action of the court; the legal effect of AArhich is apparently to adjudge that the claimant’s contention was right, and that this court left them nothing to do but enter the decree as prayed for. Wliat the record should show, if our understanding of the mandate be correct, would be some proper record evidence that the court acted in pursuance thereof, and there should be, at least, some finding of the court, made in the course of some proper form of trial, of the matter of fact remitted for determination. This, we insist, Avas necessary both as a foundation for the new decree and to save the defendants’ rights in case of any error in laAV in the proceeding. The record, as it stands, shows that the decree was the result of action of the court, which Avas in contravention of the mandate, and is therefore unlawful on its face.
    Passing, however, to Avhat we may call the merits of the question, the opinion shows that the court below, -though refusing to proceed regularly to a trial of the issue remitted, did under- • take to determine it upon the defendants’ motion, and in considering what would be" a fair deduction for the use of the claimant’s roadway, rejected in substance the defendants’ offer to prove it by testimony, on the ground that it appeared to them from tlie record on. tlie former trial that defendants, by their agents, had agreed with the company on the “fair deduction” for the service during the period in question.
    The right of the court to determine this matter without a formal trial, in the course of a motion such as that of the defendants, and on the record of their findings from evidence on the first trial, which evidence and findings had not, by being offered and considered anerv, been made the proper subject of a new determination of fact, may well be questioned; but if they had the right so to proceed, their conclusion seems to us erroneous, in so far at least as it affects the period from and after June 16, 1874; because we claim that the findings aforesaid do not show any such agreement, and even if they do, the act of June 16, 1874, would make it void.
    It appears by the first finding that the employment of land-grant roads therein mentioned is stated to have been prior to the act of June 16,1874, and the second finding, setting forth tlie rate of deduction fixed by the department as the basis on which the work was done and paid for, must, of course, be taken as relating and confined to the same antecedent period. The third finding states that certain service was rendered by claimant, at request of the Quartermaster Department, betweenMarch 31, 1874, and April 1, 1875 (of which period two and a half months only were before the enactment aforesaid), and gives the entire value at tariff rates and also the value “ at the reduced rate previously established by the War Department”; but it is not stated that there was any agreement between the parties that the service should be done and paid for at the reduced rate set forth, nor can such an agreement be inferred from the mat- • ter of the previous finding, as has been shown, for any period subsequent to the said act of Congress.
    The findings appear to us to be framed with proper regard to the legal relations of the parties, and to confine the statement of what was agreed in general between the War Department and the land-grant roads to the time when the authority to agree had not been suspended by statute.
    But even conceding that it appears from the said findings ' that any one in the War Department had assumed, after June 16, 1874, to agree with this claimant that the United States were liable to pay for transportation over its road, and to further agree upon the rate set forth in the finding, we say that by tbe act of that date (18 Stat. L., 74), and by the subsequent Act of March 3,1875 (18 Stat. L., 453), such action was null and void. The acts do not, it is true, prohibit in terms agreements by the War Department, but they must be presumed to have been framed in Anew of the fact that the War Department had theretofore proceeded upon a construction of the laws affecting the relations and rights of the parties which the legislature declared should not continue or be further enforced, except through the intervention of the courts.
    It seems to folloiv necessarily that Congress intended that, until the courts should define and settle the right of the parties under prior laws, all previous concessions and arrangements ivere to be ineffective. The right of a land-grant road to compensation ivas to be determined by the courts on their construction of the terms of the grant, and not on the agreements of the Quartermaster Department; and the principle, we contend, applies to the determination of the rate as Avell as to the right itself.
    
      Mr. Thomas H. Talbot for the claimants, appellees:
    The main stress of the argument in far'or of this appeal seems to be rested upon the statute of 1874.
    It does not seem to occur to the learned Attorney-General that, in citing that statute as affecting the present adjudication, he is violating its provisions; that he is flying in the face of the act to which he appeals. But so it is; the language of that statute is plain. The suits in the Court of Claims which it contemplates, and one of which this is, are, according to the Act of June 16, 1874, tobe determined “by virtue of the lairs in force prior to the passage of this act ”; not at all according to “ this act? This is expressly excluded from influencing their determination.
    Furthermore, that after June 30,1874, all military transportation was to be performed at rates to be fixed by the Court of Claims ivas never made knoivn to this railroad company when it was requested to perform such transportation, and has not been made known to it in such connection eiren to this date. This appellee imver consented to furnish such transportation at such a rate.
    Eeally, what does the Government counsel mean by its position in this respect — its position, when its negations are followed •out to tbe positive inferences which they must necessarily raise? How was military transportation over land-grant railroads to be procured for the United States after June 30,1874? Does his •argument go to the point that, after that date, all requisitions for military transportation over land-grant railroads were to be issued by the Court of Claims? Or does he concede the authority still to remain in the Quartermaster-General to issue such requisitions as the occasions should arise, provider] they specified that the price of such transportation was thereafter to be fixed by that court? Is this the only form of such requisitions which has been lawful for the last three and a half years?
    This appears to be the view taken in support of this appeal; and, aside from all other objections thereto, it is now to be said that not one of the three parties interested in, or to be affected by, this “new departure” so understand their duties and rights. Not even the Court of Claims, to which this added magnitude •of its office has come, comprehends its situation. The Quartermaster-General has not learned of this great subtraction from his former functions, this sudden subordination of his office to judicial authority. The railroad company is equally unknowing. It has never been informed-of this new arrangement, and it has never agreed to it,
   Mr. Justice Field

delivered the opinion of the court:

The question originally involved in this case, and decided at the October term of 1876, was whether the provision contained in the land grant to the company, that its road should be a public highway for the use of the Government of the United States, free from all toll or other charge for the transportation of its property and troops, not only entitled.it to the free use of the road, but also to have the transportation made by the company without charge. The company claimed that the use of the road was all that could be required of it. The Government, insisting ■that it was also entitled to have such transportation without charge, refused compensation therefor, and referred the matter to the Court of Claims for determination. That court estimated the cost of the transportation according to the ordinary tariff rates of the road with other parties for similar services after making a deduction of one-third from the rates. This deduction liad been deemed by the War Department, upon careful consideration, to be tbe equivalent of any toll or charge for tbe use of tbe road itself, and upon that basis tbe services bad been: rendered. But tbe judges of tbe Court of Claims, being equally-divided upon tbe question of tbe liability of tbe United States-to make any compensation, gave judgment pro forma in tbeir favor against tbe company. On appeal, tbis court reversed the-judgment, bolding that tbe Government was entitled only to the free use of tbe road, and that compensation must be made for tbe transportation, with a fair deduction for such use. Tbe case was accordingly remanded, with directions to enter a new decree^ awarding compensation with such deduction.

On the return of tbe case to tbe court below tbe claimant moved for judgment for tbe amount previously found according to tbe ordinary tariff rates, less tbe deduction of one-third,, as established by tbe War Department. By agreement of tbe parties such judgment was entered, tbe Government reserving-tbe right to show that a judgment for that amount was not required by tbe mandate of tbis court, and, if it should be so decided, to try tbe question as to what was a fair deduction.

On tbe subsequent bearing of tbe point reserved, which was-bad upon a motion to set aside tbe judgment, tbe opinions of eminent “railroad experts” were read, by stipulation of tbe parties, to show what would be a fair deduction from tbe ordinary tariff rates for tbe use of tbe road. There would seem to-have been some difference of opinion among the experts, but tbeir evidence failed to show, in tbe opinion of tbe court, that, tbe reduction agreed upon between tbe parties and tbe War Department was not a fair one. On tbe trial of tbe case it was-not pretended by the claimant that tbe amount was arbitrarily fixed or that it was illegal or oppressive,'or by tbe Government that any greater deduction should have been made. Nor was tbe authority of tbe War Department to make an arrangement of tbis kind questioned, if under tbe law tbe Government was liable for tbe transportation. If such authority do not now exist, as contended, under tbe subsequent legislation of Congress — and upon which point we express no opinion — there can be no doubt of its existence when tbe services were rendered for which compensation is claimed here.

We are of opinion that tbe mandate of tbis court Avas fully complied with by tbe Court of Claims, and its judgment is. therefore affirmed.  