
    MINNEAPOLIS AND ST. LOUIS RAILWAY COMPANY v. THE UNITED STATES.
    [No. 15681.
    Decided April 8, 1889.]
    
      On the Proofs.
    
    The only questions presented t>y tliis case have been repeatedly decided before. (1) Whether in the absence of an express contract a railroad is entitled to additional pay for delivering the mail at offices within 80 rods of way stations. (2) Whether the Postmaster-General’s fines and deductions are conclusive where no formal contract existed.
    I. Compliance with requests contained in the “weight and distance circular ” of the Post-Office Department is equivalent to an application for the service of carrying the mails, and the orders of the Postmaster-General to offers of the business on the , terms therein stated.
    
      II.The orders of the Postmaster-General and the business of carrying the mails are subject to the statutes and regulations of the Department which constitute the terms of the contract; and a railroad by carrying the mails accepts those terms.
    III. The uniform practice of the Department that the delivery of mails at post-offices within 80 rods of a station is not to be computed as mileage, is a correct construction of the regulation relating to delivery.
    IV. A railroad is not necessarily entitled to the maximum rate allowed bylaw. The Postmaster-General has discretion to make contracts at lower rates.
    Y. An order of the Postmaster-General making a mail service “ subject to fines and deductions ” is authorized by the .Revised Statutes, § 3962. VI. The excuse that delinquencies were unavoidable in being caused by the elements is j>roper matter for consideration'by the Postmaster-General, but can not be considered by the court in absence of fraud or other irregularity.
    
      The Reporters’ statement of the case.
    The following are the facts as found by the court:
    I. The following orders, in the usual manner of transacting business where formal written contracts are not made with railroad companies, were issued by the Post-Office Department in relation to the carrying of mails by the claimant, a corporation duly organized under the laws of the State of Minnesota and operating lines of railway between the points named in said orders. Said company was not aided by the United States by the grant of land nor by the issue of bonds.
    
      “Route 26021.— White Bear Lake, Minn., to Albert Lea.
    
    
      “ 1879, Oct. 2. Authorize the Auditor of the Treasury for the Post-Office Department to pay the Minneapolis and ' St. Louis Railway Company quarterly, for carrying the mail between White Bear Lake and Albert Lea from July 1, 1879, to June 30, 1883, at the rate of $8,450.13 per annum (being $68.40 per mile per an-num for 123.54 miles), unless otherwise ordered, subject to fines and deductions.
    
      “ 1880, Jan. 2. From Jan. 16, 1880, extend service on this route from Albert Lea by Nun da, Lake Mills, and Benson’s Grove, to Forest City, increasing distance 33.51 miles, and leave pay to be fixed under the law.
    “July 10. From July 16, 1880, extend service on this route from Forest City, by Britt and Livermore, to Humboldt, increasing distance 50.26 miles, less 
      ^ mile terminal at Forest City, making net increase 49.93 miles, and leave pay to be fixed under act of June 17, 1878.
    “ July 21. From April 1, 1880, extend service on this route from Humboldt, via all intermediate offices covered by route 27047, to Fort Dodge, Iowa, increasing distance 18.5 m., and increase pay at the rate of $790.87 per annum, being $42.75 per mile, for same distance.
    “Aug. 12. Eecognize the service of D. E. Miles, of Humboldt, Iowa, in carrying the mail between the post-office at Humboldt and the railroad station, from Sept. 1, 3879, to June 30, 1880, 258 days, at 40 cents per day, and refer to the Auditor to pay him $103.20 therefor, and charge to the Minneapolis and St: Louis Eailway Co.
    “ Nov. 30. 1st. Modify order of July 21,1880, No. 8392, so as to have extension take effect from July 16,
    1880, instead of from April 1, 1880. 2nd. Eecall order of Aug. 12,1880, No. 9215.
    “1881, Oct. 7. From Jan’y 16, 1880, to June 30, 1881, add to annual pay at the rate of $2,406.69, being $71.82 per mile for 33.51 miles extension from Albert Lea to Forest City, and from July 16, 1880, to June 30,
    1881, add to annual pay at the rate of $3,585.97, being $71.82 per mile for 49.93 miles extension from Forest City to Humboldt; and from July 1, 1881, add to pay at the rate of $6,952.97 per annum, and state pay for service on entire route from White Bear Lake to Fort Dodge at the rate of $16,193.97 per annum, being $71 82 per mile for .225.48 miles, in accordance with new returns of the weight of mails. This to supersede previous orders affecting the pay from the dates mentioned, and subject to fines and deductions.
    “ 1882, Jan. 23. From Feb’y 20, 1882, extend service on this route from Fort Dodge, via Otho, Hesperian, Dayton, Pilot Mouud, and Ogden, to Angus, Iowa, increasing distance 50.12 miles, less t3<$j- mile terminal distance at Fort Dodge, making net increase 49.79 miles, in accordance with distance circular. Leave pay to be fixed under the law.
    “Aug. 9. From Feb. 20, 1882, add $3,490.07 to annual pay, being $70.11 per mile for 49.78 miles extension from Fort Dodge to Angus. From April 1, 1882, reduce annual pay $385.57, making the same $19,298.49, being $70.11 per mile for whole route, 275.26 miles, in accordance with new returns. This adjustment is subject to future orders and to fines and deductions.
    
      %
    
    
      “ Oct. 3. From August 1, 1882, omit White Bear Lake and let this route commence at Minneapolis, decreasing distance 15 miles and decreasing pay at the rate of $1,051.65 per annum, being $70.11 per mile. From same date the portion curtailed will be made a part of route.
    
      “ 1883, Aug. 29. Pay the Minneapolis and St. Louis Railway Company quarterly for carrying the mail between Minneapolis and Angus from July 1, 1883, to June 30, 1887, at the rate of $24,032.41 per annum, being 92.34 per mile for 260.26 miles for transportation. This adjustment is subject to future orders and to fines and deductions.
    u 1886, Aug. 19. Fro.m Sept. 10, 1886,' extend service from Minneapolis to St. Paul, Minn., increasing distance 11.87 miles, in accordance with distance circular, with the understanding that the rate of compensation will be adjusted in a subsequent order in accordance with the law. v
    “ 1887, Aug. 19. From Sept. 10, 1886, to June 30, 1887, add to pay at the rate of $1,502.02 per annum, being $126.54 per mile for 11.87 miles extension from Minneapolis to St. Paul, Minn., iu accordance with new returns of the weights of mail. This adjustment is subject to future orders and to fines and deductions.
    
      “■Route 26038. — Minneapolis to Birch Gooley.
    
    “ 1882, Jan’y 9. Number route 26038 and order the transportation of mails by the Minneapolis and St. Louis Rwy. Company from Minneapolis, via Hopkins, Minne-tonka, Excelsior, Waconia, Young America, Nor-wood, Hamburgh, Green Isle, Arlington, and Gay-lord, to Eagle City, Minn., 71.10 miles- and back, six times a week, or as much oftener as trains may run, from February 1,1882, with the understanding that the rate of compensation shall afterwards be determined under the law according to the grade of the service to be shown by the usual returns to be furnished within twelve months from the date of the commencement of the service.
    “Aug. 1. Pay the Minneapolis and St. Louis Railway Company quarterly for carrying the mail between • Minneapolis and Winthrop from Feb’y 1, 1882, to' June 30, 1883, at the rate of $3,039.52 per annum, being $42.75 per mile for 71.10 miles for transportation. This adjustment is subject to future orders and to fines and deductions.
    
      “ Dec. 16. Modify order of August 1, 1882 (No. 12012), so as to state the pay at the rate of $2,982.87 per annum, being $42.75 per mile for 69.77 miles. This revision of pay is in accordance with new distance circular showing the terminal distance at Winthrop to be jVg- mile, while the terminal distance at Eagle City (the former terminus) was 1-firo miles, to which no service was performed.
    “Dec. 19. From Jan’y 1, 1883, extend service from Winthrop, Minn., via Gibbon Sta. (n. o.), Fairfax, and Franklin, to Birch Cooley, Minn., increasing distance 31.40 miles less 1.50 miles terminal distance at Eagle City (the terminus stated in Order No. 313, dated Jau’y 9, 1882, and the site of which office was afterward changed to Winthrop), making net increase 29.90 miles, in accordance with distance circular. Leave pay to be fixed under the law.
    “ 3,883, Mar. 17. Modify order of Dec. 19, 1882, No. 18017, so as to state net increase in distance on extension to Birch Cooley at 31.23 miles instead of 29.90 miles, 1.50 miles having erroneously been deducted on account of the terminal distance at Winthrop instead of -jt/g- mile. •
    “Aug. 8. From Jan’y 1, 1883, add to pay at the rate of $1,388.48 per annum, being $44.46 per mile for 31.23 miles extension from Winthrop to Birch Cooley, in accordance with new returns of the weights of mail.
    “Aug. 29. Pay the Minneapolis and St. Louis Bail way Company quarterly for carrying the mail between Minneapolis and Birch Cooley from July 1, 1883, to June 30, 1887, at the rate of $4,560.71 per annum, being $44.46 per mile for 102.58 miles for transportation. This adjustment is subject to future orders and to fines and deductions.
    
      11 Route No. 26048.— Waterville to Red, Wing.
    
    “1883, Aug. 29. Pay the Minneapolis and St. Louis Bailway Company quarterly for carrying the mail between Waterville and Bed Wing from July 1,1883, to June 30,1887, at the rate of $3,593.13 per annum, being $53.87 per mile for 66.70 miles for transportation. This adjustment is subject to future orders and to fines and deductions.”
    II. The Postmaster-General, for the purposes mentioned in Bevised Statutes, section 4002, sent to claimant for the routes named in the petition railroad distance circulars and railroad weight circulars, in Ghe usual form, and the iuformation therein requested was duly furnished. The rates mentioned in the foregoing orders were the maximum authorized by the then existing statutes (Rev. Stat., § 4002, as altered by Act of July 12, 1876, ch. 179, § 1, Supp. Rev. Stat., 225, and Act of Jume 13, 1878, ch. 259, § 1, Supp. Rev. Stat., 359), for the weights and distances returned by the claimant in response to said circulars, excluding the distance of transporting the mails to and from intermediate post-offices, between the extreme ends of the routes, which were not more than 80 rods from the line of the road or stations.
    III. It has been the usage of the Post-Office 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, without including that distance in the length of the route and without extra compensation. Since 1854 it has been the practice in the advertisements for proposals to give notice that “ On all railroad and steam-boat 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 eighty rods from the landing of railroads.” In the authorized edition of Postal Regulations printed in 1873 is the following:
    “ Sec. 349. In connection with railroad and steam-boat routes, mail messengers are appointed to carry the mail to and from post-offices, when such offices are more than eighty rods from the-steam-boat landing or railroad station. * * *
    “Railroad and steam-boat 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 the terminal offices of their routes.”
    In the authorized edition of the regulations printed in 1879 the same provision appears, as follows :
    “ Sec. 639. When railroad companies must deliver mails to post-office. — Railroad 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.
    “Sec. 641. The rates of compensation [for railway service] are computed upon the 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 General Superintendent of the Eailway Mail Service. The requirement as to due frequency and the size of the mail car or apartment are at all times to be determined by the Department.
    “Sec. 670. 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 ol 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.”
    Under said regulation 670 and Eevised Statutes, section 3962, it has been the uniform practice of the Postmaster-General to make deductions from the mileage pay of railroad companies for carrying the mails on account of failure to arrive and depart with the mails on schedule time, and other causes such as those for which deductions were made from claimant’s pay in the manner set out in finding v.
    IY. The claimant corporation received and. delivered the mails finder said orders, between the times set out in the petition, and received from time to time the pay fixed thereby, without including in the mileage upon which the amount was calculated the distance between intermediate stations and the post-offices within 80 rods of the line of the road, and without otherwise receiving pay therefor, and excepting the deductions set out in the next succeeding finding, which have b¿en retained by the defendants.
    •Y. From the amount which the claimant would otherwise have been entitled to under said order set out in finding I, the following deductions were made for non-delivery of mails on schedule time and for causes stated in this table:
    
      Reporters’ statement of tlie case. No. of route. Annual Compensation. Half-trip. 26021 26021 26021 26021 26021 26021 20021 $8,460.13 15.233.66 18,246.82 18,246.82 3, 039.52 24f 032.41 24,032.41 24,032.41 $13.50 24.33 29.14 29.15 4.85 38.39 38.39 26038 26038 26038 (*) <*) 4, 560.71 7.28 Place, nature, and date of delinquency. Deduc- Quarter tions. ended. Failure to perform service one way between Minneapolis and Albert Lea, 108.54 m., July 3,4, 5,1879. White Bear Lake: Failed to arrive and depart Feb’y 5,7,8,9; to arrive Feb’y 24,26,28, and to depart Feb’y 25,1881. Fort Dodge: Failed to arrive Jan’y 6,7, 8,13,14,20,21,22, 27, Mch. 2,3,4,5,7,9, 14,15,16,17,19, and to depart Jan’y 8, 13,14,15,21,22,25,27, Moll. 1,3,4,5,7,8, 10,12,15,16,17,18,1881. Minneapolis: Failed to arrive Dec. 7, 1882 $35.58 Dec. 31, ’79 632.58 Dec. 31, ’81 14.57 Dec. 31, ’82 Minneapolis: Failed to arrive and depart Jan’y 19,20,22,23,30,31, Feb’y 1, 2,17,24; to arrive Jan’y 15, Feb’y 16, Mcb. 6; and to depart Jan’y 10,26,1883. Minneapolis: Failed to arrive Nov, 7, Dec. 22, and to depart Nov. 6, Dec. 21, . 1882. Winthrop: Failed to airive Nov. 6, and to depart Nov. 7,1882. Angus: Failed to arrive and depart Dec. 31,1884. Angus: Failed to depart Jan’y 7,23,26, Feb'y 12; to arrive Jan’y 1C, Feb’y 13, and to arrive and depart Feb’y 9,10, 11,1885. Failed both ways, bet. Albert Lea and ' Angus (152.26 m.). Jan’y 4, 11,12,13, 23,25, and one way Jan’y 8, 9,16 ; one way bet. Britt and Angus (103.939 m.), and one way bet. Livermore and Britt (25.227 m.), Jan’y 5; one way bet. Angus and Livermore (78.712 m.), Jan’y 6,7; one way bet. Waterville and Angus (194.86 m.),Jan’y 8, 9; oneway bet. Minneapolis and Albert Lea (108 in.), Jan’y 10; one way bet. Ft. Dodge and Albert Lea (102.465 m.), Jan’y 16, and both ways Jan’y 29, 30, Feh’y 2 ; one way hot. Angus and Ft. Dodge (49.805 m.), Jnn’y 18; "both ways over the route (260.26 m.), Jan’y 22, and het. Albert Lea and Britt (48.321 m.), Jan’y 26,1886. Winthrop: Failed to arrive Dec. 21 and to depart Deo. 22,1882; failed half trip Jan’y 9,10,11,12,15,16,22,23,24,25, 27, Feb’y 12,13, 19, 20, 22,23, M’ch 3, 5, 9, 10; and round trip Jan’y 5, 13, 19,20, 26,30, 31, Feb’y 1, 2, 3,5,6,16,17, 21,24, 26.27.28, M’ch, 1,2,6,7,8,1883. Birch Cooley: Failed to arrive Doc. 27; to depart Feb'y 9,16; M’ch 5, Dec. 28; and to arrive and depart Feb’y 7, 8, 20, M’ch 3, 9,1883. Minneapolis: Failed to arrive and depart Jan’y 5, 10, Feb’y 19,20,21,22,27, M’oh 3,10, 11, 12, 13 ; to arrive Feb’y 29, and to depart Feb’y 28, M’cb 4, 1884,- and at Birch Cooley to arrive and depart Jan’y 4, 5, 10, Feb’y 19, 20, 21.22.26.27.28, M’ch 4, 10, 11, 12,13; to arrive Feb’y 25, M’ch 3, and to depart Feb’y 23, 29, and M’ch 5,1884. 364.37 M’ch 31, ’83 14.55 38.39 230.34 Dec. 31, ’82 Dec. 31, ’84 M’ch 31, ’85 656.77 June 30, *80 486.38 Sept. 30,’83 52. 65 Dec. 31, ’83 M’ch 31,’84 * To Jan’y 30, ’83, annual compensation, $2,982.67, half trip, $4.76 ; from July 1, ’83, annual compensation, $4,371.15, half trip, $6.98.
    
      No. of route. 26088 26038 26048 26048 26048 26048 Annual compensation. $4, 560.71 4, 560.71 3, 593.13 3, 593.13 3, 593.13 3, 593.13 Half trip. $7.28 7.28 5.73 5.73 5.74 5.73 Place, nature, and date of delinquency. Birch. Cooley: Failed to arrive and de* part Nov.'17,18, and to arrive Dec. 2, 1884. Minneapolis: Failed to arrive and depart Nov. 17,18,1886; to arrive Feb’y 18,1887 ; and at Birch Cooley to arrive and depart Jan’y 17,18, 29; Feb’y 3,4, 11,14,15,16,17,18,19, 26, 28, M’ch 1,2, 3; to arrive Jan’y 22, and to depart Jan’y 21,1887. "Waterville: Failed to arrive M’ch 10, 12,19,24, and to depart M’ch 11,12,24, 1884 ; and at Fed Wing to arrive and depart M’ch 10,12,24, both "ways, bet. Faribault and Red "Wing (49.50 m.); M’ch 25, 26,27, and bet. Cannon River Falls and Red Wing (21.30 m.),M’oh 28,1884. Failed half trip Jan’y 4, and round trip Jan’y 9,22,1886. Failed round trip Nov. 18, 1886 . Failed round trip Feb’y 18,26, 28, and to arrive at Waterville Feb’y 25,1887. Total deductions. Of "which amount has been remitted . - Bal . Deduc-$18.20 149.24 28.65 11.48 37.24 3,003.08 397.86 2, 605.22 Quarter ended. Deo. 31, ’86 M’ch 31,’87 M’ch 31,’84 M’ch 31,’86 Dec. 31, ’86 M’ch 31,’87
    The delays in delivering the mails mentioned above were generally occasioned by snow blockades, storms, and high water, causing damage to the road and delay of trains.
    VI. If the claimaint be entitled to compensation for carrying the mails to and from intermediate post-offices within 80 rods of the line of the road, at the same rate per mile as fixe,d in orders set out in finding I, in addition to the amount thereby allowed and paid, there would still be due the company $518.83, reckoning mileage one way, or $1,037.66, reckoning the mileage both ways, to and from the post-offices.
    VII. It does not appear that claimant ever made any objections to the methods of computing the amount due either as to mileage to and from post-offices or as to deductions, until this action was brought.
    
      Mr. A. J. Willard and Mr. S. M. Lalce for the claimant:
    If any doubt could exist on the subject, a distinct admission that the statutory compensation was intended as the actual measure of compensation to railway carriers complying with the conditions of the law and performing a first-class service is found in a regulation established by the Department in the year 1879. (Regulations of 1879, §641.) . The regulation just referred to is as follows:
    “ Sec. 641. 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 General Superintendent of the Railway Mail Service. The requirements as to due frequency, and the size of the mail car or apartment, are at all times to be determined by the Department.”
    
      Mr. Sober J. May (with whom was Mr. Assistant Attorney-General Hoivard) for the defendants :
   Richardson, Ch. J.,

delivered the opinion of the court:

The contracts upon which this action is founded were not made by formal instruments “ reduced to writing, and signed by the contracting parties with their names at the end thereof,” as required of contracts made with the Secretary of War, the Secretary of the Navy, and the Secretary of the Interior, by Revised Statutes, section 3744. They arise from numerous orders made by the Postmaster-General, as contemplated by Revised Statutes, sections 4002 and 405, from various statutes of the United States, from the regulations and practice of the Post-Office Department, and from the acts of the parties themselves forming the res gestee of the transactions, all to be considered and construed together.

The Postmaster-General made the numerous orders set out in finding i substantially and practically in the form of the first order, as follows:

“Route 26021.— White Bear Lake, Minn., to Albert Lea.
“ 1879, Oct. 2. Authorize the Auditor of the Treasury for the Post-Office Department to pay the Minneapolis and Saint Louis Railwayr Company quarterly, for carrying the mail between White Bear Lake and Albert Lea from Julyl, 1879, to June 30, 1883, at the rate of $8,450.13 per annum (being $68.40 per mile per annum for 123.54 miles), unless otherwise ordered, subject to fines and deductions.”

The rates of compensation were the maximum authorized by statutes (Rev. Stat., § 4002, as amended by Act of July 12,1876, ch. 179, § 1, Par. 2, Supp. Rev. Stat., 2?4, and Act of June 17, 1878, ch. 259, § 1, Par. 4, Supp. Rev. Stat., 359) for the weights and distances returned by the claimant in response to circulars sent out by the Postmaster-General under the provisions of said section 4002, excluding the distance of transporting mails to and from intermediate post-offices between the extreme ends of the routes, which were not more than 80 rods from the line of the road or stations.

The claimant has been fully paid, unless the company be correct in its contention upon two points of controversy which have arisen between the parties.

(1) In making payments the Postmaster-General allowed nothing extra beyond the amount computed upon the mileage of the road or railroad track and upon the distances from the terminal stations to the post-offices, for and on account of the transportation of the mails to and from intermediate stations and the post-offices thereat. For the latter service additional compensation is claimed.

(2) At the end of each quarter of a year the Postmaster-General made deductions from the amount otherwise due to the claimant on account of failure to fully perform the services required by reason of non-delivery of mails on schedule time. The amount thus deducted and retained by the defendant was $2,605.22, and that constitutes the second item now claimed.

In order to reach a correct conclusion upon these two questions at issue we must carefully consider the terms of the contract between the parties.

The voluntary compliance with the requests contained in the weight and distance circulars sent out by the Postmaster-General was an application for the service of carrying the mails by the claimant corporation, and the orders of the Postmaster-General were offers of the business at the prices therein stated. Those orders and the business were subject to the provisions of the statutes and the general regulations of the Post-Office Department, which the parties were bound to know, as well as to the usual and ordinary customs and practices of the Department in relation to railroad mail service, with which all persons engaged in that service are presumed to be familiar.

All these taken together constituted the terms of the offers, and the claimant, by taking and carrying the mails, accepted those terms. We will examine the orders, statutes, regulations, and practices so far as they bear upon the two points in controversy.

(1) As to the claim of extra compensation for carrying mails to and from intermediate post-offices, the regulations provide, as set out in finding in, that—

“ Railroad 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 80 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 uniform practice of the Department from a time long anterior to the claimant’s service had been that the delivery of mails between intermediate stations and post-offices was not tó be paid for in addition to the amount computed upon the mileage of the tracks and terminal offices; and that, in our opinion, is the true interpretation of the regulation plainly implied if not expressed in terms.

It is contended on the part of the claimant that the company is entitled to the maximum rate per -mile which the statute authorizes the Postmaster-General to pay, and that the latter distances should be computed in establishing the mileage of the road. This same question has been considered and decided by this court in two previous cases. In the Hasten Railroad Case (20 C. Cls. R., 41; affirmed on appeal, 129 U. S. R., 391) we held that the statute (Rev. Stat ., § 4002) did not fix the exact amount to be allowed to railroads, but only the maximum which the Postmaster-General could not exceed, leaving to him a discretion to make contracts in his own way at less rates if he should be able to do so. In the Jacksonville and Mobile Railroad Company Case (21 C. Cls. R., 171; affirmed on appeal, 118 U. S. R., 626) we referred to the uniform practice of the Department to construe the compensation for carrying the mails to and from intermediate post-offices as included in the pay estimated upon the mileage of the railroad proper, and we said that—

u 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 services must be held to be included in the general compensation fixed for the routes. Had it [the company] objected in season the Postmaster-General might have reduced the route compensation. 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.”

Further consideration serves to confirm our opinions thus expressed.. We adhere to our former rulings and decide against the company ou this demand.

(2) The claim for money deducted by the Postmaster-General and retained by the defendant, as set out in finding v, on account of delinquencies of the claimant, is urged on the alleged grounds that there was no authority for such action and that the delinquencies were caused by the elements and were unavoidable and not properly chargeable to the company.

The primary orders, the incipient proceedings in the contracts, set out in finding i, expressly make the service 11 subject to fines and deductions.” Such a condition is in accord with the statutes on the subject. Eevised Statutes, section 3962, provides:

“ Sec. 3962. 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.”

In the Jacksonville, Pensacola, and Mobile Railroad Company Case (21 C. Cls. R., 172; affirmed on appeal, 118 U. S. R., 626) it was urged by the claimaut that this section had been repealed, but we held it to be unrepealed and in force. In the case of the Chicago, Milwaukee and St. Paul Railway (127 U. S. R., 406), the same point was again urged and was the only one involved in the case. The Supreme Court decided as we had decided in the former case and sustained the power of the Postmaster-General to make deductions.

The regulations set out in finding ill also make provision for such deductions, and they have long beeu made in accordance with the 'practice and course of business of the Depart-merit. These statutes, regulations, and practices were adopted into the contract by the words of the orders, subject to fines and deductions,” and the claimant is concluded by them.

The excuse set up that the delinquencies were unavoidable was proper matter for consideration by the Postmaster-General in the exercise of his discretion, and his decision can not be reviewed here in the absence of allegations of fraud or other irregularity. In the Otis Case (24 C. Cls. R., 61), the whole subject was considered, and the court said, among other things:

“ The statute makes the Postmaster-General the judge when a fine shall be imposed, and unless that power is exercised incompatibly with the reasonable and legitimate use of the power, parties contracting with the Government are bound by his action. The service to be performed is of such a character that a provision of that kind is essential to the successful performance of the most important function incident to the executive branch of the Government.”

That case is also referred to for further exposition of our views.

It is not to be overlooked that the claimant company was not one of those companies which were aided by the United States with grants of lands or issues of bonds, and so was under no obligations to carry the mails, and that it might at any time have abandoned the service if it were unwilling to accept the terms offered and imposed by the Postmaster-General, as was held in the ■'Eastern Railroad Case both by this court and by the Supreme Court.

The claimant has no cause of action, and his petition must be dismissed.  