
    The Union Pacific Railboad Company v. The United States.
    
      On the Proofs.
    
    
      The act of 1862 incorporating the claimant provides that the company shall carry the mails, 4~c., “at fair and reasonable rates of compensation, not to exceed the amounts paid by private parties for tlie same kind of service.” Subsequently postal cars are furnished by the claimant. Still later Congress passed anact limiting the rate of compensation tohe paid for postal cars and mail transportation service generally. The claimant gives notice that this will not he accepted, and for service subsequent seelcs to recover at the rates charged private parties for express cars.
    
    I. The postal car and mail transportation service of the Pacific Railroads must he rendered, if rendered at all, subject to the limitations of the Revised Statutes, §§ 3997, &c., and an action to recover therefor must he governed by the principles laid down in the Chicago, Milwaukee, ■and Saint Paxil Railroad Case (14 C. Cls. R., 125, 144), and the Chicago ■and Northwestern Railroad Case (15 id., 232, 245).
    
      II. The Pacific Railroad Act, 1862 (12 Stat. L., p. 489, § 6, ch. 120), neither makes a contract for all prospective service rendered the government,, nor hinds the government to pay precisely the same rates which are paid hy private parties for the same kind of service. The effect and meaning of the section stated.
    
      The Reporters' statement of the case:
    It was admitted upon, the trial that a notice, dated New York, September 1,187G, was duly given by the claimant to the Postmaster-General, stating that thereafter the claimant should charge the defendants express car rates for the running of postal cars. The case was submitted and heard on the following agreed statement of facts, which the court adopted as its findings of fact:
    “UNITED STATES COURT OE CLAIMS.
    “The Union Pacific Eailroad Company v. “The United States of America.
    “It is hereby agreed that the above-entitled cause shall be submitted to the court for judgment upon the facts and stipulations that follows, viz: .
    “I. If the petitioner has a right to recover from the government for the transportation of mail agents and clerks, then the sum due the petitioner on account of the charge made therein for fares of postal clerks and agents during the period from February 1,1870, to September 30, 1877, will be $140,000.
    “ II. That as to so much of the claim of the petitioner as relates to postal services for the government, if the compensation for such services is not to be fixed by reference to the act of Congress approved July 1, 1802 (12 Stat- L., 489), especially section 0 of the same, and the subsequent acts amend-atory thereof, but by the general laws regulating the compensation for similar service by railways, then the entire amount due the petitioner under its said petition for such services will be six hundred and eighteen thousand nine hundred and ten dollars and fifty-four cents ($018,910.54). (See Exhibit A, hereto attached.)
    “ III; That if the compensation to be paid petitioner for postal services as aforesaid is to be fixed by reference to the special acts of Congress as distinguished from the general laws before named, and if the average rate charged by petitioner and paid by parties for the transportation of express matter, so called, is to be deemed “fair and reasonable rates of compensation,” then such average rate, excluding from the computation the amount charged for cars containing fruit, fish, and perishable-articles hauled in passenger trains, make due the petitioner, under its said petition, the sum one million thirty-eight thousand five hundred and three dollars and twenty-five cents ($1,038,503.25) as the entire amount due for such services. (See Exhibit A, hereto attached.)
    “IV. That if the amount charged upon cars transporting fruit, fish, and perishable articles hauled in passenger trains shall be included as express business, then the entire sum thus due the petitioner for transportation of the mails as aforesaid will be eight hundred and seventeen thousand seven hundred and ninety-nine dollars and twenty-five cents ($817,799.25). (See Exhibit A, hereto attached.)
    “V. That if the amount charged upon cars transporting fruit, fish, and perishable articles hauled in passenger trains shall be considered the same kind of service as that performed for the government in transporting the mails, excluding from the computation the amount charged for all other express business, then the sum due the petitioner for the mail-services aforesaid will be two hundred and thirty-two thousand two hundred and ninety-five dollars, and twenty-five cents ($232,295.25).
    “VI. Upon the preceding facts and those hereinafter stated the case is submitted 'to- the court for its determination of the principles or rules applicable to the petitioner’s right to recover upon its claim as set forth in stipulations 1, 2, 3, 4, and 5, respectively, aforesaid, and to enter such judgment therein, and upon the counter claim of the United States, as the law requires.
    “The cars containing fruit, fish, and perishable articles are moved in the same trains as the cars containing mail and express matter. These cars are received from and delivered to connecting roads. Their contents need no handling or transfer, and there is no terminal expense except for switching the cars themselves. The cars are loaded to their full capacity, averaging about ten tons each, and the contents require no special care' in transit.
    “The cars containing the ordinary and regular express matter are furnished with a safe, and are fitted with sleeping and other accommodations for one messenger. The railroad company does its own express business. It collects and delivers express matter without extra charge, and is responsible for any loss or damage. One express messenger accompanies each car, unless on special business an additional messenger is detailed. The company maintains a special organization for conducting its express business, having express offices in all tile larger towns, but generally the regular agent of the company attends to its express business.
    “The cars containing the mail are built and fitted up by the company upon plans prescribed by the Post-Office Department, and are furnished complete at the company’s expense. Light, fuel, water, ice, &c., are also furnislied by the company as required. Ten of these cars are used by the company and are fitted up with all facilities for handling and distributing the mail as required by the Postmaster-General, and also with sleeping accommodations for postal employés.
    “The mail is received from and is delivered to all post-offices on the route by the railroad company when the post-offices are within eighty rods of the railroad. The mail is also handled by station employés when it is received from and delivered to connecting lines, and this company pays its proportionate expense of the same. From one to five post-office employés travel on each postal car, who handle, distribute, and sort the mail on board the car. The Postmaster-General in his discretion imposes a fine upon the company for any delay or nondelivery of the mails.
    “In the above computation of sums due the company the weight is taken at fifteen thousand (15,000) pounds daily average, that being the quantity found by the Post-Office Department to have been carried daily for thirty consecutive days.
    “VII. There is due the defendant upon its counter claim, if the petitioner’s elairn of $L,038,503.25 for mail service is allowed •by the court, seven hundred and three thousand and eleven -nro. dollars, as five per cent, upon the total net earnings of'the claimant during the period specified in the counter claim.
    “If the court shall award the petitioner its claim of $140,000 for transportation of mail agents and clerks, or any part thereof, the amount of the five per cent, above mentioned will be increased by five per centum on the additional amount so allowed.
    “If the court shall award the petitioner an amount for mail service less than the amount claimed therefor as above stated, the amount of the five per centum of net earnings above mentioned will be reduced by deducting therefrom five per centum on the difference between the amount so claimed and the amount aivarded by the court. (See Exhibit F, hereto attached.)
    The exhibits marked A, B, G, D, E, and F, attached to these ■stipulations, may bo referred to as forming part of the same [and as being computations correctly made up by the government, but what constitutes express matter is not to be affected by the classifications therein contained].
    VIII. It having by stipulation I, above, been agreed between the parties that the sum of $140,000 is due to the petitioner for the transportation of mail agents and clerks if by law it is entitled to recover compensation for such service, and the government being desirous of an opportunity to correct the amount thus charged for said service, if upon further scrutiny it shall be deemed by it erroneous, it is agreed that if the government at any time before final judgment, after appeal to the Supreme Court, if such appeal be taken, shall desire to correct said amount, their proposed corrections, unless assented to by the petitioner, shall be submitted to the Court of Claims.
    
      Inasmuch as the foregoing stipulations do not embrace or cover any claim of the company for compensation for service over the Omaha Bridge, and the approaches thereto, other than so far as the bridge is a part of the road, it is hereby agreed that any claim for additional or separate compensation is reserved to the claimant, and the right of neither party in respect thereof is in no way affected by said stipulation or by this suit.
    SybNEt Bartlett,
    ShELLABAUGER & WILSON,
    
      Attorneys for Claimant.
    
    ThoMAs Simons,
    
      Assistant Attorney-General.
    
    April 14,1881.
    Exhibit A.
    COURT OF CLAIMS.
    Union Pacific E. E. Co. ) vs. > 11901. The United States of A.)
    
      Memorandum as to stipulations.
    
    No. 1. Total amount of claim. $2,268,437 54
    Less postal service stated in petition:
    Jany., 1876. $27,095 25
    Feby., March, 1876. 99,462 50
    6 qrs. X $149,193.75... 895,162 50
    -1,021, 720 25
    Difference, “other service”....$1,246,717 29
    No. 2. Feby. 1, 1876, to Sept. 30,1877:
    20 months, at $7,000 per month. $140, 000
    No. 3. Mail compensation as found by the Post-Office Department: (See Exhibit D.)
    $39,310 62, Jany. ltoFeby.13,1876,=44 days, $315 per mile for 1,032.4 m., or per day, $893.55. •
    •
    49,189 32, Feby. 14 to Mcb. 31,1876,=47 days, $369 per mile for 1,032.4 m., or per day $1,046.58.
    95,497 20, April 1 to June 30,1876,=1 qr. © $381,988.80 per an. for 1,035.2 m., or $369 per mile.
    347,930 72, July 1, ’76, to June 30,1877,1 year © $336.10 mile for 1,035.2 miles.
    
      $86,982 68, July 1 to Sept. 30, 1877, 1 qr.® $336.10 per mile for 1,035.2 mijes.
    $618,910 54=$45,144.43 (postal car sett. May 24, ’80) -j-$573,766.11 (amounts found due per old settlements (84,634.11 — 1st qr. 1876 : 87,992.00 — 2d qr. 1876 ; 401,140.00 — 5 qrs. to Sept. 30, 1877).
    No. 4. As per petition, Jany. 1 to 31, 1876_ $27,095 25
    As per item No. 207 on statement (Exhibit B). 1, 011,408 00
    Total. $1,038,503 25
    No. 5. As per petition Jany. 1 to 31, 1876 . $27,095 25
    As per item No. 33 in statement (Exhibit B). 790, 704 00
    Total. $817,799 25
    No. 6. As per petition Jany. 1 to 31, 1876. $27,095 25
    As per item No. 30 in statement (Exhibit B). 205,200 00
    Total... $232,295 25
    Exhibit B.
    
      Analysis and comparison of express and mail business over the Union Pacific Bailroajifrom February 1st, 1876, to September 3Qth, 1877.
    No. Items. Average daily -weight actually carried through, not including “extra cars”. . 8,705 lbs. Average daily weight actually earned through in “extra cars” ...3,914 " Total. 3 4 5 6 7 8 9 10 11 12 13 14 15 16 Totals Nos. 1 and 2 12,619 Average daily weight, reducing “way” to “through,” not including “extra cars”. Totals Nos. 2 and 4...*.. Average daily weight of TJ. S. mails. Company’s express earnings. Average express earnings, daily. Average rate por pound 1, 035 miles. Average rate per mile per annum. Extra car earnings. Avoiage extra car earnings daily. Average rate per pound 1, 035 miles. Average rate per mile per annum. Earnings for express and freight on passenger trains. Average express and freight earnings, daily.•. 10,480 lbs. 14,394 “ 15, 000 lbs. $707, 016 1,[ XXX XX XXXX ] 410 08 $53, 550 88 07 0225 31 05 $760, 566 1, 250 93
    
      Exhibit B. — Analysis and comparison of express and mail l)usiness} <$'C. — Con’d.
    No; Items. Total. 17 18 19 20 21 22 23 24 25 26 ■27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 Average rate per pound 1,’035 miles. Average rate per mile per annum. Company’s charge for carrying TJ. S. mails... Average daily charge. Average rate per pound 1,035 miles.’.. Average rate per mile per annum. Amount allowed hy Post-Office Department. Average daily compensation allowed. Average rate per pound 1, 035 miles. Average rate per mile per annum. Mail compensation at express rates. Average daily compensation. Average rate per mile per annum. Mail compensation at extra car rates. Average daily compensation. Average per mile per annum. Mail compensation at combined express and freight rates. Average daily compensation. Average rate per mile per annum.i. Excess of Co.’s charge over P. O. Dept, allowance. “ “ express rates “ company's chargo. “ “ company’s charge “ extra car rates. “ “ “ combined express and extra car “ “ express rates “ 3?. O. Dept, allowance. “ “ “ “ extra car rates. “ “ P. O. Dept. “ extra car rates. 0869 441 15 $994, 625 1,635 89 109 576 48 „ $593,412 11 976 07 06507 345 04 $1, Oil, 408 1, 663 50 586 64 $205,200 337 50 119 02 $790,704 1,300 50 458 62 $401,212 89 16,783 789,425 203,921 417,995 89 806, 208 388, 212 11
    Exhibit C.
    
      Statement of extra cars offish, fruit, eggs, horses, tf-c.; daily average of weights, reducing way to through; actual iveights of “through” express matter transported hy Union Pacific Bailroad, Co.’s Express, during the period commencing February 1st, 1876, and ending September 30th, 1877.
    Eebr’y. March . April. - May ... dune... duly ... August Sqpt... Oct. Nov.... Dec.... ’ebr’y Match Month. T876. A. 1877. .g« to o Pounds. 10,392 10,768 10, 970 11,355 14,318 10, 612 14,370 13,3981 11,993 13, 357 12, 044 7,761 8,177 8,141 Pounds. 263, 005 298, 310 270, 930 306,170 358,810 263, 310 386, 320 339, 020 316, 560 317,444 314, 340 201,760 186, 600 236,948 $28, 036 00 38.810 00 41,405 00 42.811 00 49, 063 00 43,525 00 56,139 00 48, 842 00 44,044 00 43, 040 00 42,203 00 26; 820 00 23,719 00 32,242 00
    
      Exhibit C. — Statement of extra cars of fish, fruit, eggs, horses, $e. — Continued.
    Month. April... May .... Juno.... July .... August. Sept .A. Powids. 9,484 7,208 7, 768 7, 290 8,200 11, 997 Powids. 243,820 174, 220 173,450 166,310 191, 007 284, 690 $31,118 00 30, 374 00 31,554 00 37,360 00 35, 611 00 38,850 00 Total. Average. *119 209, 603 5,292,524 $760,566 00 3,914 10,480 8,705 $125 00 Total earnings, including extra cars. -Actual through weights, per month, not including extra cars. Daily average," reducing way to through. Extra cars.
    *2,380,000 pounds.
    “Extra car” earnings=119 cars, at $450 per car.'. $53, 550 00 Earnings of “express ” proper. 707,016 00
    [J. K. Johnston, Supt., Kansas City, Mo.; E. M. Morsman, Gen’l Supt., Omalia, Neh.; L. A. Fuller, Supt., St. Louis, Mo. Union and Kansas Pacific Express, Gen’l Superintendent’s Office.]
    Omaha, Neb., October 10th, 1879. « Statement of extra cars of fish, fruit, eggs, horses, ‡0.; daily average of weights, reducing way to through; actual weight of “ through” express matter transported by V. P. B. li. Co.’s Express, during 1876, 1877, and 1878, and total earnings of express department.
    
    Eeb --. .llar... -Ap’l-. May.. June . July.. Ang.. Sept-. Ooto.. ISfov... Dee .. Lis. Lis. 9,207 240, 370 10,392268,005 10,768 298,310 10,9703270,930 11,355 306,170 14, 318 358,810 10,612j263,300 14,370¡386,320 13,398,839,020 11, 993!316, 560 13, 357¡317,444 12, 044 314,340 $29, 880 00 28, 036 00 38.810 00 41,405 00 42.811 00 49, 063 00 43, 525 00 56,139 00 43, 842 00 44, 044 00 43, 040 00 42,203 00 Lis. Lis. 7,761 201, 760 íj 8,177(186, 600i 8,141J236, 948', 9,484,243, 320' 7,208174,220i 7,768173,450; 7,290166,310 8, 200191, 007 3;ll, 997 284, 690 511,228 282,910 510,516 262,410 414,240 379, 910 $26,820 00 ' 23,719 00 32,242 00 31,118 00 30,374 00 31,554 00 37,360 00 35, 611 00 38, 850 00 38, 598 00 36, 723 00 43, 768 00 Lis. Lis. 9, 010191, 007 9, 629 224,500 10,064.289,200 8,820 239,880 8,494 212,360 6,439 134,420 7,378-133,440 8. 605:160,750 10,3341215, 280 12,1351297, 070 813, 400Í302,310 1516, 876 387,640 $39, 991 00 33, 577 00 39,467 00 34,090 00 41, 710 00 30,157 00 34,064 00 35, 230 00 37,865 00 48.188 00 43.188 00 52,[ XXX XX XXXX ]. 1877. 1878. Total earnings, including eitra cars. Actual through weights per mo., not including extra cars. Daily average way, reduced to through. Extra cars. Total earnings, including extra cars. Actual through weights per month, not including extra cars. Daily average way, reduced to through. Extra cars. Total earnings, including extra cars. Actual thro’ weights per mo., not including extra oars. Daily average, reducing way to thro’, lbs. Extra cars. Months.
    
      Daily averages do not include extra cars. Weights given include weights of gold & silver. Extra cars averaged about 20,000 lbs., and about $450.00 each, earnings.
    Tours] respectfully,
    (Signed) . E. M. Marsman, G. Supt.
    
    Exhibit D.
    
      Memorandum as to Post-Office Department account with Union Pacific PailroaüT from January 1st, 187G, to September 30th, 1877.
    June 22, ’78.. 1032.4 ..$315 00 May 24, ’SO .. 1032. 4 $329 00 $40!$369 00 13035. 2 $329 00 $40,$369 00 ‘1035. 2 $296 10 $40 $[ XXX XX XXXX ]. 2 $296 10 $40 $336 10 Jan’y 1,1876 Pehy 14,1876 April 1,1876 July 1,1876 July 1,1877 Feh. 13,1876 $325, 206 00 March 31,1876 $389, 955 60 June 30,1876 June 30,1877 Sept. 30,1877 $347, 930 72 $347, 930 72 $381, 988 80 $39,310 62 • $49,189 32 $95, 497 20-$347, 930 72 ¡6, 982 68 $618,910 54’ Total paid, Total per annum. To— l o Is From-Total. P. O. oars. Mail transporta-Miles of road. Dato of orders.
    Office of Auditor of Railroad Accounts, Washington, D. 6'., November ifh, 1880.
    J. W. N. ) In your reply please > quote above initials. )
    
    E. F. c:
    
    Office of the Auditor of the Treasury for the Post-Office Department,
    
      Washington, November 4,1880.
    Sir : In compliance witli the request contained in your letter of tlie 3d inst., I have the lionor to transmit herewith a statement showing the annual compensation of the Union Pacific E. E. Co., from January .1,1876, to June 30, 1880.
    Very respectfully,
    (Signed) F. B. Lilley,
    
      Acting Auditor.
    
    Hon. Tiieo. FRENCH,
    
      Auditor of Bailroad Accounts, Washington, D. C. .
    
    
      Office of the Auditor of the Treasury for . the Post-Office Department (Pay Division), Washington, November 4, 1880.
    
      Memorandum, as to Post- Office Department account with Union Pacific Railroad Company.
    
    Amount allowed by Post-Office Department per mile per annum. ft June 26,1876 May 24,1880 "Nov. 12,1878 Jan’y 10,1880 June 22,1880 1032.4 1032.4 $329 1035.2. 329 1035.21 [ XXX XX XXXX ].2 . 1035.2'. 1035.2| [ XXX XX XXXX ].2 382 19 50 ! 50 $315 369 369 336 10 364 05 364 05 374 05 432 19 Jan’y 1,1876 Feb’y 14,1876 April 1,1876 ~ ' 1,1876 1.1878 1.1879 20,1879 1.1880 July July July Oct. July Feb’y 13,1876 March. 31,1876 June 30,1876 30.1878 30,1879. 19.1879 30.1880 1,1882 Oct. June June $325, 206 00 389, 955 60 381, 988 80 347, 930 72 376,864 56 376, 864 56 387,216 56 447,403 38
    F. B. LILLET, Acting Auditor.
    
    Exhibit E.
    -State of Nebraska,
    
      County of Douglas, ss:
    
    Joseph W. Gannett, being by me first duly sworn, deposes and says that he now is and for ten years last past has been the auditor of the Union Pacific Eailroad (now Union Pacific Eailway) Company; that as such officer he is familiar with its accounts during said period; that he is of the opinion that the mileage made by postal clerks traveling on said road from February, 1876, to October 1st, 1878, must have been about the same as since said last-named date, and that the amount due for the fares of said postal clerks for said period is about seven thousand dollars per month.
    Deponent further saith that the reason and ground of said ■opinion is this, namely: that from October 1st, 1878, to and including May, 1879, an accurate account of the amount due for mileage traveled by said clerks, with the following result, was kept:
    October, 1878.. $7,139 35
    November, 1878 7, 212 00
    December, 1878 7, 047 50
    January, 1879 .. 7, 074 60
    February, 1879 . 6, 653 60
    March, 1879 ... 7, 434 85
    April, 1879.... 6, 946 35
    May, 1879. 7, 075 15
    
      and that tbe number of trains run and postal clerks regularly traveling were the same during both periods, but that no account was kept of said mileage by the railroad company during the former period.
    (Signed) Joseph W. Gannett.
    Subscribed in my presence and sworn to before me this 25fch day of February, 1880. ,
    [ngtabial seal.] (Signed) Geo. W. Hall,
    
      Notary Public.
    
    Exhibit F.
    
      Statement of annual earnings, expenses, and net earnings of the Union Pacific Railroad Company, for period commencing November 6, 1875, and ending November 5, 1877.
    Nor. 6,1875, to Nor. 6,1876, to N or. 5,1876. Nor. 5,1877. J5ABXIKGS. Commercial passenger. Unitod States passenger. United States mail. Express. Commercial freight. United States freight. Company freight. Miscellaneous. Kent of buildings. Surplus in fuel and material account Omaha "bridge. Total earnings. EXPENSE!!}. Car service. Conducting transportation. Motive power. Maintenance of oars. Maintenance of way.-.... General expenses. Omaha bridge... Legal expenses.1. Salary account.. Government directors.-.. Expenses. Construction expenses. ... Total expenses.. Net earnings.. l^ive per cent. Eor the period covered by the claim in this case the net earnings are as follows, viz: Nov. 6, 1875, to Nov. 5, 1876, as above.-... Nov. 6,1876, to Sept. 80,1877, §gg (§§§ of $7,440,830.08).. Total net earnings for period.. Five per cent. $4, 067,138 02 219,128 76 582, 639 66 489,113 58 6, 071,706 10 379,837 06 677,476 48 191,764 00 24,178 37 46,492 82 480,479 09 13,179, 953 94 $3,465, 285, 596, 430, 6,441, 391, •765, 257, 22, 47, 458, 475 24 670 01 775 00 269 02 286 39 ' 379 75 035 80 174 61 874 49 370 78 74‡ 75 13,162, 052 84 - $19, 866, 1, 932, 444, 1, 753, 482, 225, 52, 21, 17¡ 8, 703 63 936 41 091 29 726 54 507 85 022 41 138 56 015 80 431 67 745 -25 484 94 825 00 $16, 370 51 867, 558 83 1,731,785 72 442, 058 95 1, 615, 619 38 593,364 01 288, 910 00 170,555 41 5,826, 629 35 5,721, 222 76 7,353,324 59 B67,666 28 7,440,830 08 372, 041 50 $7, 353, 324 59 6,706,911 75 14, 060,236 34 703, 011 82
    
      Upon tbe foregoing findings of fact tbe court decide as conclusions of law:
    1. Tbe claimant is entitled to- recover only at tbe rate specified in Stipulation II of tbe agreed statement of facts.
    2. Tbe defendants are entitled to recover on tbeir counterclaim in tbe proportion prescribed in Stipulation YII of tbe agreed statement of facts, $682,032.18.
    3. Tbe sum of $618,910.54: being found to have been earned by tbe claimaut as set forth in Stipulation II, aforesaid, one-balf part thereof should be applied to tbe payment of tbe bonds issued by tbe government in aid of tbe construction of tbe said road pursuant to tbe provisions of'the Act 2d July, 1864 (13 Stat. L., p. 356, § 5, chap. 216), and tbe remaining half-part, to wit, tbe sum of $309,455.27, should be set-oif against and deducted from tbe amount found due from the claimant to tbe defendants, to wit, $682,032.18, and judgment be rendered against tbe claimant for tbe balance remaining, to wit, tbe sum of $372,576.91.
    
      Mr. Sidney Bartlett for the claimant :
    Tbe petitioner rests its case upon tbe sixth section of tbe act of Congress approved July 1, 1862, which act constitutes tbe charter of tbe company.
    . Tbe cause presents two questions: First. Is tbe measure or rate of compensation to be governed by tbe provisions of tbe above section, or does it fall within and is it to be regulated by tbe provisions of the acts of Congress, either prior or subsequent to tbe charter, prescribing tbe rates at which tbe Postmaster-General may contract with railroad companies for such transportation'? Second. If such compensation is to be fixed in accordance with tbe above recited section of tbe act of 1862, then what, upon tbe stipulations and proofs, constitute fair and reasonable rates of compensation, not to exceed tbe amounts paid by private parties for similar service ” ?
    I. Before discussing tbe first of these questions, it will be properto advert to tbe general history of Congressional legislation in reference to tbe transportation of mails by railroad companies, and it may be stated—
    1st. That, in regard to such transportation over railways existing under charters granted by the several States, and to which railways no aid, by way of land grants or otherwise, has been afforded by the government, the acts of Congress from the outset — namely, 183S, ch. 172, sect. 3 (5 Sfcat. L., p. 283), down to 1879 (20 id., p. 358) — all proceed (either in express terms or by necessary implication) on the ground, not that the duty to afford such transportation is attempted to be enforced on such corporations, but that all is to be matter of contract between the corporations and the government, and that, if the terms proposed to such corporations under the limitations of price prescribed by the statutes shall not be accepted, then the mails are to be forwarded by the Postmaster-General by “ express,” “ post coaches,” “ wagons,” &c.
    2d. But in regard to corporations to which the government has granted lands, rights of way, or other aid, the legislation contains special provisions in reference to the transportation of mails; and that legislation we now proceed to trace, with a view to its effect in determining the question at issue.
    Without encumbering this brief with a complete list of- the statutes of the first class, we subjoin extracts from a few of them, which we believe to contain the provisions common to all, namely: ,
    1850.' — Sept. 30, ch. 61, sec. 6 (9 Stat*. L., p. 467), provides “ that the United States mails shall at all times be transported on the said railroad under the direction of the Post-Office Department, at such prices as the Congress may by law direct.”
    1853, Feb. 9, ch. 59, sec. 6 (10 id., p. 156); 1864, May 5, ch. 70, sec. 7 (13 id., p. 65); 1872, June 8, ch. 335, sec. 214 (17 id., p. 309), which provides “ that all railway companies to which the United States has furnished aid by grant of lands, rights of way, or otherwise, shall cany the mail at such price as Congress may bylaw provide, and, until such price is fixed by law, the Postmaster-General may fix the rates of compensation.”
    To this class of railway companies is confined the act of March 3, 1845, sec. 19 (5 id., p. 738), authorizing contracts with railway companies for transportation of the mail, limiting the compensation therefor, and providing for the use of “horse expresses,” &e., if such contracts could not be made. This act was in force at the time petitioner’s charter was granted.
    In this condition of legislation as to the terms imposed by Congress on State corporations (mere objects of its bounty), as distinguished from a corporation created by government, and whose charter, as declared by this court, “ contains something more than provisions to create a corporation and confer on it franchises and grants: the statutes really embody both the charter and the contract” (10 O. Ols. R., p. 580), the following-suggestions are obvious:
    1. That the subject of grants to railway companies, and of the duties properly to be imposed in consideration of such grant, in regard to the transportation of the mails and the compensation therefor, was not new to Congress when the act of July 1, 1862, was passed.
    2. That, theretofore, prior to said first day of July, 1862, all such grants had been coupled with the condition that the compensation for the transportation of the mails should at all times be fixed and controlled by Congress.
    3. Then came the act of Congress of July 1, 1862, which created 'the plaintiff corporation,, and which, by its sixth section, provides that such compensation, instead of being subject to be fixed by the government, is, for some reason arising out of the character of the enterprise, or otherwise agreed upon and fixed by contract in the act itself, — namely, that it shall be equal to the amount “paid by private parties for the same kind of service,” — since such is the only just construction of the terms used in the act. Thus there was a designed departure by Congress from the terms theretofore imposed in the cases of railroad companies aided by the government.
    4. Clear and distinct, then, as was this departure from its previous terms and policy, it is perhaps unnecessary to inquire into the surrounding circumstances which furnish the reason for that departure. But, since they are embodied in the judicial records of this court and of the Supreme Court, it may not be useless to refer to them.
    These reasons are perhaps stated with greater fulness by the Supreme Court, in 1 Otto, pp. 79,80, where the necessities and policy of the government to procure, by novel and favorable terms, the construction of this great road, are thus stated:
    “The act itself was an experiment. It must be considered in the nature of a proposal to enterprising men engaged in the work; for, with the untried obstacles in the way, there was no certainty that capital -could be enlisted. If enlisted at all, it could only be on conditions which -would ensure, in case of success, remuneration proportionate to the risk incurred.” The same views may in substance be found on p. 579 10, C. Ols, R.
    
      Incidentally, the Supreme Court has expressed its views on the construction of the section in question thus: “The company is bound, of course, to perform the service stipulated for by the sixth section of the act of 1862, being paid therefore at the rates therein prescribed.” (United States, v. Denver Pacific Company 9 Otto, p. 462.)
    5. It will hardly be necessary, we think, to advert to the possible suggestion that the act of 1872, ch. 335, above referred to, qualifies or repeals the contract contained in the charter of the petitioner. From Wood v. The United States (16 Pet., 362), the doctrine of the Supreme Court has uniformly been that there must be positive repugnance between the provisions of the new law and the old to work the repeal of the latter by implication. The act of 1872 purports to be a revision and consolidation of the previous postal statutes, and by the section in question merely engrafts on this revision the jiro visions scattered, as we have seen, through the various acts granting aid to State railroad companies, which theretofore had formed no part of the' various general laws regulating the Post-Office Department.
    6. It remains to consider the question whether acquiescence of the petitioner, up to the period embraced by its present claim, in the rates prescribed by the Post-Office Department, forever precludes it from the assertion that such rates are no longer fair and reasonable rates, equal to the amounts paid by private parties for the same kind of service.
    The Post-Office Department has throughout treated the road of the petitioner as a land-grant road, bound to transport the mails “at such price as Congress may by law direct;” and it has, in conformity to the provisions of law (first inserted in the act of 1864, ch. 79, § 7), exercised the authority there given, “ that, until such price is fixed by law, the Postmaster-G-eneral shall have the power to determine the same.” Acquiescence, therefore, in rates fixed arbitrarily by the Post-Office Department, however long continued, cannot divest the right of the petitioner at any time to insist on its chartered contract, and to declare that the rates thus prescribed are no longer, and have not at any time been, fair and reasonable rates as defined by its contract, although as to the past it would be precluded from further claim.
    7. We come next to that part of petitioner’s claim founded on its transportation of postal clerks and mail agents of tlie government.
    There is nothing in the charter of the petitioner which requires it to transport, for the government, parties of the above description, either gratuitously or otherwise. If it shall be claimed that such service isincident to, or by fair construction to be in-cluden in, the obligation to transport the mails, then, by the section that imposes that obligation, the service is to be paid for at “ fair and reasonable rates.”
    II, Assuming that it will be declared that the rights of petitioner are to be governed by the sixth section of the act of 1862, there remains the question what, upon the agreedfacts contained in the stipulation, shall be held to constitute the measure and quantum of compensation to which the petitioner is entitled.
    The section first declares that the mails, troops, and other property of the government shall be transported by the petitioner in preference to all other business (a preference not required in cases of grants by the government in aid of State corporations), and that this shall bo done at “fair and reasonable rates of compensation.”
    Had the section stopped there, no standard of compensation would have been fixed. The act nowhere refers to the rates of compensation to be required, either from the public or the government, except in the eighteenth section, which, by implication, authorizes the fixing of such rates as will produce net income equal to ten per cent, upon the cost of the road — a limit, as is well known, which has nevér been reached by the company. Under the mere terms “fair and reasonable rates,” it might have been authorized or required that, at the very inception proof of rates then received by other roads, most nearly resembling in their characteristics the road of the petitioner should be produced. Or it might have been left open for proof what were the varying circumstances and difficulties and cost of petitioner attending the different periods of its service for the government.
    To avoid this uncertainty, the section proceeds to fix a standard of compensation founded on the business transactions of the road itself; and it adds the words, “not to exceed the amount paid by private parties for the same kind of service.” Thus the point on which the case turns must be, What, in view of the act, was contemplated by botli parties as being “ the same kind of service performed for private parties”?
    That service is the transportation of “cars containing fruit,, fish, and perishable articles,” and the agreed facts in regard to the same are as follows:
    “The cars containing fruit, fish, and perishable articles are moved in the same trains as the cars containing mail and express matter. These cars are received from and delivered to connecting roads. Their contents need no handling or transfer; there is no terminal, except switching the cars themselves. The cars are loaded to their full capacity, averaging about ten tons each; and the contents require no special care in transit.”
    Now, collating the features and incidents connected with each of these classes of transportation, it is obvious, we think, that the cost as well as the extent and the character of service imposed on the company, as necessary incidents to each class of such service, forms one of the most essential elements in determining whether they, and which of them, are the “same kind of sendee” within the meaning of the act.
    The government, in the tran sp ortation of the m 'ails, as has been seen, requires a class of special, large, and expensive outlays and service, in no way incident to the transportation of express matter or of common freight; and it would be most unjust to hold that it was its purpose, or that of the petitioner, to provide that coarse freight, requiring no .such extraordinary expenditures or care, should, for the purposes of the contract, be deemed the “ same kind of service ” merely because it was transported by the same trains; and yet this is the only feature which the transportation of “fruit, ñsli, and perishable articles” has in common with those attending the transportation of the mails.
    
      Mr. Assistant Attorney-General Simons for the defendants:
    The petition sets forth two causes of acli'on, one for an amount claimed as compensation for transporting the mails from January 1,1876, to September 30,1877; the other for fares of postal clerks and agents from February 1,1876, to September 30,1877, amounting to $140,000.
    . The counterclaim is for recovery of an amount as 5 per centum of the net earnings of the petitioner from November 6,1875, to November 6,1877, which is not disputed.
    Upon the claim for mail transportation, the defendants admit that compensation to the amount of $618,910.54 was earned, and are, and always have been, ready and willing- to pay or credit one-half thereof to the petitioner according to law.
    The petitioner concedes that for January, 1876, it is entitled to claim no more than $27,095.25, the amount which defendants admit was earned during- that month-, but for the succeeding twenty months the petition claims compensation at the rate of $49,731.25 per month, on the ground that by act of July 1, 1862, it is entitled for such service to fair and reasonable rates of compensation, not to exceed the amounts paid by private parties for the same kind of service; and that the rate per month claimed therefor as aforesaid is the same as the rate paid to it during the same time by private parties for express service assumed to be the same kind of service. The amount really in dispute therefor on this claim is, by the petition, $402,809.71.
    The claim for this increased rate was first made on September 1,1876, in a communication, in which the intention to demand the same (as now claimed) from February 1,1876, is expressed. Up to January1,1876, the petitioner has received compensation for mail transportation under the general laws regulating the compensation for such service by railways, hereinafter discussed, without objection.
    The main question here is as to the true construction of the parenthetical clause in the sixth section of the act of July 1, 1862, on which the petitioner bases this claim, and it may be considered in several aspects.
    I. It is to be observed that the government has to do, as respects mail service, with three classes of railways — first, those serving it without resting under any special obligation to it by incorporation or donation; second, those under obligation by receipt of donations with annexed conditions as to compensation for this service; third, those under obligation by incorporation and subsidies without specific regulation on this point, and in this class the claimant will fall.
    Although by the act of July 1,1862, and its amendments, greater benefits were extended to the companies therein authorized than to those of the second class, Congress did not stipulate therein that the service should be without compensation, but as appears from the last clause of the sixth section conceded, as in all other cases, that service would entitle the companies to compensation. If, as we have maintained, it laid down in the disputed clause no regulation of the subject of compensation in ordinary cases, the. fact that it did not as in the second class expressly reserve to Congress the right to control it by no means places the government at the mercy of the companies, for by the eighteenth section of the act of 1862, and the twenty-second section of the act of 1864, ample power to alter, amend, or repeal is reserved. In-the absence, therefore, of some positive agreement on the subject of the original compact creating in effect a vested right, the regulative power of Congress has free scope, and its efficacy was asserted in the sinking-fund cases brought to test the validity of the Thurman act. (99 U. S., 700.)
    Taking the clause as such a positive agreement, the claimant contends it is not repealed by the subsequent general legislation concerning rates (Title 46, ch. 10, E. S.), because it is not within the rules which govern repeal by implication, but if the act, as we contend, does not regulate the subject, then a general act (see § 4001, E. S.), regulating it for all railroads, or in terms that fairly include this road, is within the reserved power, and especially will this be held in construction when it has been so understood and enforced during a series of years without objection.
    II. But assuming that the general legislation mentioned cannot affect or has not regulated the relations of the parties under the act of 1862, the result is the same.
    The compensation is, then, either regulated by the said clause or left to be determined on general principles, as by the reasonable worth of the service; and in the latter case, what better' test is afforded than what companies under no obligation to the government freely accept for the same service 9
    But, taking the claimant on its own ground, it amounts to the same thing; for the clause has not properly the meaning which the claimant seeks to engraft upon it. It is treated throughout as if it read “at rates equal to the amounts paid by private parties for similar service”; but the pregnant words are “fair and reasonable rates of compensation”; and the contract, if any, was for such rates, unless less rates should be given to private parties for the same kind of service. What was fair and reasonable might well be less than the amounts paid by private parties. It might even be more, as in case of competition or favoritism. If less, the government was to have the benefit of it; if more, the benefactor of tifie road did not propose to submit to sucb discrimination against itself. That the government rate was never to be more implies that sometimes, if not in general, it was expected to be less than the private rate; for if it had béen intended to be always the same, it would have been so declared. Congress was well aware of the various devices by which discriminations are made in railway transportation, and which would most probably be put in operation against the government On the one hand, monopoly of the trans-continental traffic would tend to swell the ordinary rates beyond what was fair and reasonable; and, on the other, the government .would always be charged the highest rates, while private parties would be charged less by means of drawbacks and other modes of discrimination.
    III. If the foregoing positions are well founded it is unnecessary to consider what kind of private business is to be the standard of comparison, but the objections to making the claimant’s express business the standard may be stated.
    The theory of comparison by the nearest resembling business ought certainly to be confined to such resemblance as shall include no incompatible element, or at least none the effect of which in the comparison could not be closely calculated. With some superficial likeness, express business is conducted on a radically different basis from that of carrying the mails, and that difference enters necessarily into the rates of charge therefor in such a manner as to be incapable of separation and distinct statement. One, and perhaps the chief, of these elements of difference is the risk assumed by the carrier,, and which is of course represented in the charge by a more' or less unknown quantity. Another is the great outlay required for offices, horses, wagons, employes, and other expenses connected with the collection and custody and delivery of express matter, all necessarily included in the general rate.
    In transporting the mail the company has no risk; there is no expensive collection and no cost except that possibly of transfer at the terminus from one car to another, and perhaps switching the car, and no expense of custody of the mail in the car. These are matters of substance and necessarily to be considered in determining what is a fair and reasonable rate, and yet it is contended that the legislative idea of such a rate was that it should include compensation for these elements of service of which the government had had no benefit.
    We are confident that the reasonable worth of the service will be found to be the only agreed compensation, and that the court will hold this road entitled to no higher rates than every unsubsidized road freely accepts, since no stronger evidence of such worth could be given, especially as confirmed by the acceptance of the same terms by the claimant down to September, 1870.
    IV. In the event that the court should hold that the express rates must govern, a question will' arise as to the effect to be given to the notice of September 1,1876, that the increased rates would be charged from February 1, 1870. The right to make the demand retrospective may well be questioned.
    Y. Seven thousand dollars per month is claimed for fares of the postal officers in charge of the mails, but not much is said in support of it, and the reason of the demand is not apparent, for aside from the question whether attendance of one or more postal agents is not a necessary or proper incident to the mail transportation, it is made so by the statute providing for increased accommodations with correspondingly increased compensation therefor (§§ 4002 to 4005 E. S.). The carriage of postal officers is the main feature of the scheme, since for the convenience of the public mail matter is received and distributed in the cars. For this extra service extra compensation is made, and that it covers the transportation of the agents there, can be no question. If any company should be unwilling to continue the extra service it could give notice to that effect, and the defendants coidd act thereon as they might be advised;' but to give notice, as in this case, that some part of it would not be continued is of no effect. And, besides this, by § 4001, E. S., aided roads would under any circumstances be subject to the provisions in question, and that this road is properly controlled by that section has heretofore been shown.
    The claim of the petitioner as to mail transportation should be denied. It is entitled only to allowance of one-half the amounts set forth in article 2 or article 5 of the stipulation. As to the claim for $140,000 for fares, .the petition should be dismissed. Judgmenfc should be entered for the defendants for the difference between the counter claim and the amount allowed the claimant.
   Nott, J.,

delivered tlie opinion of the court:

Notwithstanding the magnitude of this case, and the ingenious ability with which it lias been presented, the court is of the opinión that it turns upon a single point, and that no substantial distinction lies between it and the cases of the Chicago, Milwaukee & Saint Paul Railroad (14 C. Cls. B., 125, 144), and the Chicago & Northwestern Railroad (15 id., 233, 245).

The learned counsel for the claimant contended upon the hearing that mail transportation services rendered by this company are to be measured by the rule laid down in the act of Congress which incorporated it; and that this railroad is a stranger to a subsequent statute which prescribes the terms upon which the Postmaster-G-eneral may contract with other railroads neither incorporated by Congress nor having rates •expressly prescribed or provided for by law. He maintained that the Pacific Railroad Act (12 Stat. L., p. 489, § 6, ch. 120), wherein it is declared that certain grants are made upon condition that the company shall, among other things, “ transport mails” “for the government” at fair and reasonable rates of compensation, not to exceed the amounts paid by private parties for the same Icind of service,” defines a compensation mutually agreed upon and fixed by contract in the act itself; and that the intent and meaning of the language, by a just construction, is that the compensation to be paid by the government shall be -equal to the amount paid by private parties for the same kind of service. From these premises it is argued that the statute which made this specific agreement with this company for these services is not repealed or affected by the subsequent •general legislation concerning rates (Rev. Stat., Title 46, ch. 10) which authorizes the Postmaster-General to make other contracts with other companies not thus specifically legislated for by Congress.

We do not understand the act 1862 either to make a contract for all prospective services, or to bind the. government to pay precisely the same rates which are paid by private parties for ■the same kind of service. Its language is:

u Sect. 6. And be it further enacted, That the grants aforesaid are made upon condition that said company shall pay said bonds at maturity, and shall keep said railroad and telegraph line in repair and use, and shall at all times transmit dispatches over said telegraph line, and transport mails, troops, and munitions of war, supplies, and public stores upon said railroad, for the government, whenever required to do so by any department thereof, and that the government shall at all times have the preference in the use of the same for all the purposes aforesaid (at fair and reasonable rates of compensation, not to exceed the amounts paid, by private parties for the same hind of service); and all compensation for services rendered for the government shall be applied to the payment of said bonds and interest until the whole amount is fully paid.”

Obviously and .really the section means, we think, that the company shall transport the government’s mails, munitions, troops, &c., whenever required so to do, and that the government at all times shall have the preference over private parties; but that the transportation in all cases shall be done at fair and reasonable rates, which in no case (of preference or otherwise) shall exceed the rates paid by any private party for the same kind of service, while in all cases, even where the ordinary rates are fair and reasonable per se, the government shall have the benefit of those exceptional reductions of rate which railroads frequently make, sometimes as a matter of policy and sometimes as a matter of favor.

The case comes before us upon an agreed statement of facts, which in effect propounds certain questions for our determination, chief of which is, whether the rates charged for express cars on the Pacific railroads do not form the criterion of compensation for postal cars. It is contended that inasmuch as-, express cars come nearest in species of railway transportation to postal cars, they afford substantially the same kind of service,” and the rates paid therefor by private parties form the standard for the use and service of postal cars.

Construing the statute as we do, we think the court would not be limited, in an action where it was compelled to estimate damages, to the rates charged by the company to private parties for a single kind of similar service. We think that a court or jury would be authorized to look over the entire field of service in determining what was a fair and reasonable charge for a kind which was similar to, but not identical with, any other. For instance, if it should appear that the receipts of passenger cars were less than the receipts of postal cars, and the cost and running expenses no greater, we are inclined to think that that fact might be a proper element in the problem of estimating the amount of “fair and reasonable rates of compensation.” The reports of the Auditor of Eailroad Accounts show wliat rates of compensation the claimant has received for passenger cars, but in the determination of the case we do not feel at liberty to go outside of the agreed statement of facts upon which it was submitted.

At the time when the act 1862 was passed, the device known as the postal car system did not exist. But whether it existed or not, the provision before quoted in the act 1862 did not bind the government to send its mails over the claimant’s road, and left Congress free to determine whether they should be so sent, and if so sent to prescribe conditions for their agent, the Postmaster-General. The subsequent provisions of law embodied in the Eevised Statutes (ch. on railway service, §§ 3997, &c.) prescribe those conditions. We are not called upon to define the rights of the claimant or the liabilities of the government in the hypothetical case which may be suggested, of this road having refused to carry the mails according to the terms and conditions of those statutes, or of the Postmaster-General having sent only letter matter in ordinary cars. over the road. But it is clear to our minds that if the Postmaster-General continued the use of postal- cars upon the claimant’s road, and if the claimant continued to run them for the convenience of the Post-Office, that service must be deemed voluntary, and upon the conditions prescribed by law.

In coming to this conclusion we have not overlooked the fact that on the 1st September, 1876, the president of the company gave to the Postmaster-General clear and explicit notice that the claimant intended to charge the government express car rates for the running of postal cars. Such a notice was eminently proper to put the Postmaster-General on his guard as to the future use of postal cars, and to negative the presumption that the claimant would thereafter continue to acquiesce in the existing rates. It was a good notice to save a cause of action, but was insufficient to create one. We have shown, or endeavored to show, in the case of the Chicago & Northwestern Eailroad (15 C. Cls. R., 245), that such a protest addressed by a railroad company to the Postmaster-General neither warranted him in transcending his authority as a public agent, nor operated to take the service thereafter performed out of the restrictive consent of the Eevised Statutes.

The judgment of tbe court is that whereas the sum of $618,910.54 is found to be due to the claimant from the defendants for the services alleged in its petition, of which it is entitled to recover a moiety, to wit, the sum of $309,455.27, pursuant to the Act 2d July, 1864 (13 Stat. L., p. 356, § 5, ch. 216), and whereas the sum of $682,032.18 is found to be due from the claimant to the defendants on the matters alleged in their plea of counter-claim, therefore the said moiety of $309,455.27 be set off against and deducted from the said sum found to be due to the defendants, and the defendants recover from the claimant the balance remaining, to wit, the sum $372,576.91.  