
    ALABAMA G. S. RAILROAD v. THE UNITED STATES.
    [No. 15868.
    Decided December 2, 1889.]
    
      On the Proofs.
    
    The claimants own and operate a railroad line, portions of which are “ land-grant roads." Under the Act 12th July, 1876, the Post-Office and Treasury Departments allow full compensation for service on the unaided portions of the line. A subsequent Postmaster-General restricts compensation over the whole line to “land-grant rates also deducts from the payments made by his predecessors on the unaided portions.
    I.Railroad, mail carriers classified, and the decisions concerning each class stated.
    II.The Land-grant Acts 3d June 1856, lli7t August 1856, (11 Stat. L., pp. 17, 30) provide that “the mail shall be transported over said roads at such price as Congress may by law direct.” But a grant to Alabama “to aid in the construction of the following roads in said State" can not be construed to extend the conditions of the grant to an unaided portion of the road in another State.
    III. A continuous line of road made up of land-grant and non-land-grant portions, though owned and operated by one company, is nevertheless, when considered as a mail-carrier, two distinct roads operated by different parties.
    IV. A limitation set by Congress upon the price to be paid for mail transportation will bind the Postmaster-General not to incur a greater liability, and be notice to the carrier.
    
      Y. Congress can not compel a non-land-grant road to carry the mail, hut can restrict the compensation to land-grant rates.
    VI. The Act 12th July, 1876 (19 Stat. L., p. 82), provides that if “a railroad was constructed in tohole or in part l>y a land grant,” it shall receive only 80 per cent, of the compensation allowed to unaided roads. The language being ambiguous, the court will not disturb the contemporaneous construction of the Post-Office and Treasury Departments, that where a road had been aided in whole or in part the reduction of compensation will be in whole or in part.
    VII. Where the responsible officers of the Government give a construction to a statute, upon the faith of which a contractor renders a service and receives his pay, the Government can not subsequently open the transaction and recover back the money upon a different interpretation of the law.
    
      The Reporters’ statement of the ease.
    The following are the facts of this case as found by the court:
    I. The claimant is a corporation, organized under the laws of the State of Alabama, and operates a railroad from Chattanooga, in the State of Tennessee, to Meridian, in the State of Mississippi, the said road being successively in the States of Tennessee, Georgia, Alabama, and Mississippi.
    II. The distances upon said road are as follows:
    Miles.
    In the State of Tennessee:
    Chattanooga to Wauhatchie. 5.7
    Wauhatchie to Georgia State line. 1,6
    In the State of Georgia?
    To Alabama State line. 24.3
    Total non-land-grant road. 31.6
    Length of lino in Alabama. 244.9
    Length of line in Mississippi. 18.7
    Meridian depot to post-office.25
    Total land-grant-road. 263.85
    Total. 295.45
    'The claimant owns the whole of said road, excepting 5.7 miles from Chattanooga to Wauhatchie, which it operates under a lease.
    III.The construction of that part of the line of said railroad which is in the States of Alabama and Mississippi was aided by grants of land made by the United States to the States of Alabama and Mississippi by the Acts of June 3, 1856, and August 11, 1856; the part so aided is 263.85 miles in length. The construction of that part of said railroad lying in the States of Tennessee and Georgia was not aided by land grants from the United States, and is 31.6 miles in length, of which 5.7 miles is not owned by the claimant, but is operated under lease.
    1Y. The following orders were made by the Post-Office Department upon the dates named in relation to the pay of the Alabama and Chattanooga Railroad Company for carrying the mails on said road from July 1, 1876, to June 30, 1880:
    
      “Term 1876 to 1880.
    “1876, Oct. 13 — No. 5491. — Authorize the Auditor of the Treasury for the Post-Office Department to pay the Alabama and Chattanooga Railroad Company for carrying the mail between Chattanooga and Meridian, from July 1 to Sept. 30, 1876, at the rate of $11,066.40 per annum ($38.16 per mile per annum), being 80 per centum of the rate authorized by the 1st section of the act of July 12, 1876, subject to flues and deductions ; with the understanding that the pay shall be re-adjusted from same date upon returns to be submitted. Service, seven round trips.
    “1876, Oct. 27 — No. 6007. — Modify order of Oct. 13, 1876 (No. 5491), so as to state distance as being 295 miles, and pay at the rate of $11,257.20 per annum (being $3S.16 per mile per annum), instead of $11,066.40 per annum.
    “1877, Jan. 4 — No. 64. — Authorize the Auditor of the Treasury for the Post-Office Department to pay the Alabama and Chattanooga Railroad Company, quarterly, for carrying the mail between Chatianooga, Tenn., and Meridian, Miss., from Oct. 1st, 1876, to Dec. 31,1876, at the rate of $11,257.20 per an-num (being $38.16 per mile per annum), unless otherwise ordered, subject to fines and deductions with the understanding that the pay shall be re-adjusted from same date upon returns to be submitted.
    “1877, Apr. 13 — No. 1747. — Recall order of Jan. 4th, 1877, No. 64, and authorize the Auditor of the Treasury for the P. O. Department to pay for the service from July 1st, 1876, to June 30,1880, at the rate of $10,840.50 per annum (being $45 per mile on 24.5 miles, and $36 per mile on 270.5 miles), being a reduction of 10 per cent., under the 1st section of the act of July 12, 1876, and the allowance of 80 per cent, after such reduction on the land grant portion of the route, viz, from Wau-hatchie to the State line, 270 5 miles.
    “1877, Apr. 14 — No. 1775. — Modify order of April 13, 1877 (No. 1747), so as to add the words ‘ unless otherwise ordered, subject to fines and deductions.7
    
      “ 1878, July 23 — No. 5G69. — Authorize the Auditor to decrease the pay of the Alabama and Chattanooga Railroad Company for carrying the mails between Chattanooga and Meridian, from July 1, 1878, toJune 30, 1880, at the rate of $512.03 per annum, leaving the pay from that date $10,298.47 per an-num ($42.75 for 24.5 miles, and $34.20 for 270.5 miles), being a reduction of 5 per centum from the rates fixed for weight of mails, in accordance with the act of June 17, 1878.
    ‘:1879, Oct. 10 — No. 10404. — From July 1,1879, increase pay at the rate of $5,501.84 per annum, making annual pay from that date $15,800.31, being $52.67 per mile from Wauhatchie to State line, 275.5 miles (land grant), and $65.84 per mile residue, 24.5 miles, in accordance with new returns for July, ’79, and the act of June 17, 1878.”
    Said company was paid for carrying the mails as aforesaid, from July 1, 1876, to June 30, 1880, at the rates named in the orders of April 13, 1877, No. 1747; July 23, 1878, No. 5669, and October 10, 1879, No. 10404.
    Y. The following orders were made by the Post-Office Department upon the dates named in relation to the pay of the Alabama Great Southern Railroad Company for carrying the mails upon said road from July 1, 1880, to Juno 30, 1888:
    “ 1880, Aug. 16. — No. 9396. — Authorize the Auditor of the Treasury for the Post-Office Department to pay the Alabama and Great Southern Railroad Company quarterly, for carrying the mail between Chattanooga and Meridian, from July 1, 1880, to June 30, 1884, at the rate of $18,168.10 per annum, being $75.24 per mile for 25.04 miles, and $60.20 per mile for 270.50 miles, Wauhatchie to State line (land grant), for transportation. This adjustment unless otherwise ordered and subject to fines and deductions.
    “ 1884, Aug. 19, — No. 13179. — Pay the Alabama and Great Southern Railroad Company quarterly, for carrying the mail between Chattanooga and Meridian, from July 1,1884, to June 30, 1888, at the rate of $31,776.92 per annum, being $105.33 per mile for 270.50 miles 1. g., and $131.67 per mile for 24.95 miles for transportation. This adjustment is subject to future -orders and to fines and deductions.”
    Said company was paid for carrying the mails as aforesaid from July 1,1880, to June 30, 1884, at the rate fixed in the order of August 16,1880, No. 9396, and from July 1, 1884, to June 30,1885, at the rate fixed in the order of August 19,1884, No. 13179.
    YI. The following orders were made by the Post-Office Department on the date given:
    
      “ 1885, Aug. 10. — No. 12296. — Modify order of Aug. 16,1880 (No. 9396), so as to pay the Alabama aud Great Southern E, E. Go. for service between Chattanooga and Meridian, from July 1, 1880, to June 30, 1884, at the rate of $17,882.34 per annum, being $75.24 per mile for 6.04 miles, between Chattanooga and Wauhatchie, not land grant, and $60.20 per mile for 289.50 miles, between Wauhatchie and Meridiau, land grant, in accordance with the distance ascertained, to be subject to the conditions of the granting act.
    “1885, Aug. 10. — No. 12297. — Modify order of August 19, .1884, No. 13179, so as to pay the Alabama and Great Southern E. E. Co. for service between Chattanooga and Meridian, from July 1, 18«4, to June 30, 1888, at the rate of $31,276.46 per annum, being $131.67 per mile for 5.95 miles, Chattanooga to Wauhatchie, not land grant, and $105.33 per mile l'or 289.50 miles, Wauhatchie to Meridian, land grant, in accordance with the distance ascertained, to be subject to the conditions of the granting act.
    “1885, Aug. 12. — No. 12298. — 1st. Modify order of April 13, 1877 (No. 1747), so as to state the miles of land grant at 289.50 miles instead of 270.50 miles; aud from July 1, 1876, to June 30, 1878, pay the Alabama and Chattanooga E. E. Co., for service between Chattanooga and Meridian, at the rate of $10,669.50 per annum, being $45 per mile for 5.50 miles, Chattanooga to Wauhatchie, not land grant, and $36 per mile for 289.50 miles, Wauhatchie to Meridian, land grant.
    “2d. Modify order of July 23, 1878 (No. 5669), so as to pay the same company for service between the same points from July 1, 1878, to June 30, 1879, at the rate of $10,136.02 per annum, being $42.75 per mile for 5.50 miles, Chattanooga to Wauhatchie, Lot land grant, and $34.20 per mile for 289.50 miles, Wauhatchie to Meridian, land grant.
    “ 3d. Modify order of Oct. 10, 1879 (No. 10404), so as to pay the same company for service between the same points from July 1, 1879, to June 30, 1880, at the rate of $15,610.08 per an-num, being $65.84 per mile for 5.50 miles, Chattanooga to Wau-hatchie, not land grant, and $52.67 per mile for 289.50 miles, Wauhatchie to Meridiau, land grant, all in accordance with the distance ascertained to be subject to the conditions of the granting act.
    In compliance with these orders, deductions were made from the current mail pay of the Alabama Great Southern Eailroad Company, so as to reduce the compensation of the Alabama and Chattanooga Eailroad Company from July 1,1876, to June 30, 1880, and of the Alabama Great Southern Eailroad Company from July 1,1880, to June 30, 1885, to the amounts fixed in said orders.
    
      From July 1,1885. to September 30,1887, the Alabama Great Southern Railroad Company has been paid at the reduced rate fixed in the order of August 12,1885, No. 12297.
    YII. The amount deducted from the pay of the claimant on account of payments made to the Alabama and Chattanooga Railroad Company for service between July 1, 1876, and Jane 30, 1880, was $754.72.
    The amount deducted from the pay of the claimant on account of payments theretofore made to the claimant for service between July 1, 1880, and June 30, 1885, was $1,643.52.
    The difference between the amount paid the claimant for service between July 1, 1885, and September 30, 1887, under the order of August 12,1885, No. 12297, and the amount payable under the order of August 19, 1884, was $1,126.08.
    VIII. The orders of the Post-Office Department of August 12, 1885, Nos. 12296,12297, and 12298, and the deductions consequent thereupon, were not made on account of any mistake of fact in the original orders under which payment had been made, but on account of a supposed error of law therein as to •the construction of the thirteenth section of an act entitled 4<An act making appropriations for the service of the Post-Office Department for the fiscal year ending June 30, 1877, and for other purposes,” approved July 12, 1876.
    IX. As appears by Findings II and III, the total length of road over which the mail has been carried by the claimant is 295.45 miles, of which 263.85 was aided by laud grant and 31.6 was not aided. In all payments made to the claimant for said ■service from January 1,1882, before which no claim is herein made on account of the statute of limitations, up to September 30,1887, to which date claim is made, the calculations have been made upon the basis that the length of the road and the respective lengths of the land-grant and non land-graut portions are as follows:
    From January 1,1882, to June 30,1884, total, 295.54 miles; land-grant., 270.50; non-land-grant, 25.04 miles (order 9396 of Aug. 16,1880).
    From J uly 1,1884, to September 30,1887, total, 295.45 miles; land grant, 270.50; non-land-grant, 24.95 miles (order 13179 of Aug'ust 18,1884).
    The difference between the amounts due under this basis of ■calculation and the amounts due upon the correct calculation of the respective distances, as above stated, is $863.08, to December 31, 1887, or $819.29, to September 30, 1887.
    X. The claimant did not_acquiesce in the deductions made under the' orders of August 12,1885, or in the erroneous calculation of distances.
    And upon the foregoing findings of fact the court decided as conclusions of law:
    The claimant should recover the following amounts as set forth in the preceding findings, to wit: $754.72 (Finding VII) j. $1,643.52 (Finding VII)^ $1,126.08 (Finding VII); and $819.29 (Finding IX), amounting in the aggregate to $4,343.61, and the counter-claim of the defendants should be dismissed.
    
      Mr. W. B. King (with whom was Mr. M. I). Brainard) for the claimant.
    1. The first question to be met in this case is, What is the correct construction of the act of July 12, 1876?
    For nine years from its passage the construction of that act in its application to this cáse was uniform, and payments were made quarterly in accordance therewith. The law received over thirty identical practical constructions. This construction was constantly open to the rebuke of Congress, had it been contrary to the true legislative intent. In the case of Brown v. The United States (113 U. S. It., 568, 571) the Supreme Court quote and cite many cases, beginning with the year 1827, showing the very great weight accorded to contemporary construction of laws by executive officers. United States v. Moore (95 U. S. It., 760, 763).
    The cases are so fully referred to in Brown v. The United States, above cited, that it is unnecessary to name them here. The Supreme Court has always been in favor of stability in executive action, and against the unsettling of contract relations by personal or political changes under the guise of varying statutory construction.
    In the case at bar the construction had been long settled,, and should not be overturned unless shown to be clearly erroneous. It is necessary for those who find in it another meaning to show their correctness beyond a reasonable doubt.
    2. The difference between the Postmasters-General from 1876 to 1885 and the Postmaster-General in 1885 was purely a differ-©nee of law. The facts are exactly the same. The transactions were closed and settled, and the new Postmaster-General reopened them and restated them and held back the claimant’s money because his view of the law was different from that of his several predecessors This action was not warranted by law. The courts have uniformly held :
    (1) That the head of an Executive Department cannot reverse the decisions of his predecessors where no new facts appear.
    (2) That money paid in mistake of law can not, in the absence of special circumstances, be recovered back.
    These two propositions are so well known that it is hardly necessary to do more than refer to the authorities. On the first we refer to the case of The United States v. The Bank of the Metropolis (15 Pet., 377).
    The case of Lavalette v. The United States (10. Ols. R., 147) strongly asserted this doctrine, which a series of decisions of this court has re-affirmed up to the case of Jackson v. The United States (19 0. Cls. B., 504). Upon the latter proposition, so far back as the case of The United States v. Freeman, in 3 How., 556, it was decided that payments made upon one construction of law to an officer of the Army can not be recovered back, even though the construction be erroneous. This doctrine of late years has been frequently announced, and we need only cite the case of Hedrick v. The United States (16 0. Cls. R., 88, 104) and Arthur v The United States (16 C. Ols. R., 422, 433). In the case of Miller v. The United States, and other cases involving the same principle decided at the same time (19 C. Ols. R., 338), it was held that pay allowed in mistake of law to an officer legally out of the United States service could not be recovered back. In Mullett v. The United States (21 C. Ols. R., 485) it was again held that, in the absence of fraud or mistake of fact, a payment based upon a settlement between the claimant and the accounting officers possessing jurisdiction could not be re-opened, even if erroneous.
    On this state of facts we think it apparent that there can be no doubt that the act of the Postmaster-General in directing the deduction from the current mail pay of the claimant of the sums theretofore paid in excess of the amounts due under his construction of the law was without legal authority, and that the claimant is entitled to recover these sums back, irrespective of whether his or his predecessors’ construction of the law was correct.
    Still less doubt can arise as to the first item of the claimant’s petition. This is for sums paid to the Alabama and Chattanooga Railroad Company, a different and distinct corporation. Even if the claimant might be subject to the deduction complained of for moneys paid to it under an erroneous construction of the law, we do not see how it can be responsible for moneys wrongfully paid to another corporation, whose relation to the claimant was merely that of former owner of the property now possessed by the claimant.
    
      Mr. John 0. Chaney (with whom was Mr. Assistant Attorney-General Cotton) for the defendants.
    The proposition is presented for consideration as to whether the Post-Office Department has properly fixed the number of miles of aided and unaided road on the claimant’s route.
    The orders authorizing the mail service were made subject to fines, deductions, and re-adjustment of the compensation uathorized. If, therefore, a mistake had been made as to the number of miles of unaided railroad, we can see no good reason why the Postmaster-General could not, and should not, have re-adjusted and restated the accounts, as has been done and if the claimant has received an amount of money which does not belong to it, there is no reason why a corresponding amount should not be withheld or recouped from any moneys, found due to the claimant. Ihis is all that has been done.
    The acts of Congress granting public lands to the States to aid in the construction of railroads are all similar in phraseology. The grant of land is claimed, in this instance, under the Acts of June 3,1856, and August 11,1856 (11 Stat. L., 17, 30).
    While the Post-Office Department adjusted the accounts for mail service for several years upon the theory that 24.5 miles of the road was unaided, yet the question does not appear to have been absolutely settled at any period of time. At least it has not been determined in such a manner as to sustain the contention that the statute had been given a permanent construction by the Executive Departments.
    Some sort of contention has been pending in the Executive Departments almost constantly as to the interpretation of the statutes in regard to this section of the railroad. For instance, in 1880 or 1881, the claimant contended in the General Land Office that the portion of the road in Georgia was aided by the public grants of land and presented lists of the lands claimed for that purpose. This question was not finally decided in the Interior Department until December 6, 1884.
    The railroad was constructed in the State of Mississippi from the State line of Alabama and Mississippi to Meridian, where it connected with the Mobile and Ohio Railroad, as required by the statutes. Thus a complete line of railroad was constructed, as contemplated by Congress when the public, lands were granted in aid thereof. The grant of lands was in aid of the entire railroad, and was not intended to be applied in the construction of any one part or section of it.
    We think it may be safely contended that if the portion of the railroad in Georgia had not been constructed, so as to make a complete line, the lands granted by the acts of Congress would not have been transferred to the railroad company. In other words, the whole line of road must have been constructed, and not simply the parts of it passing through the public lands granted. Congress intended to aid in the construction of a complete system of railroads, whether the entire route was within the grant of lands or not, and the omission to have constructed any part of the system would have been a failure that would have deprived the company of the lands granted by Congress. We contend, therefore, that the entire route from the boundary line between the Statés of Tennessee and Georgia to Meridian is aided road within the purview of the law.
    The Attorney-General was asked to construe a statute similar in its provisions to those now under consideration, granting-lands to aid in the construction of a railroad from Chicago to Mobile (13 Opin., 53G). That road passed through the State of Tennessee, in which State no land had been granted in aid of its construction. The opinion is directly in point, and sustains the position of the defense in the case at bar by unmistakable and explicit language. All of these acts contain the usual provisions, almost in identical words, in regard to the transportation of property or troops and the mails of the United States.
    Congress emphasized this intention by the enactment of sec-tiou 13 of the act of July 12, 1876, by which it fixed the pay for carrying the mails on land-grant railroads at 80 per cent, of the authorized compensation, and made the rule applicable to railroad companies whose railroads were constructed in whole or in part by land grants made by Congress.
    If, therefore, the whole line of railroad from the boundary line between the States of Tennessee and Georgia to Meridian is aided within the meaning and intention of the law, and an error has been made in stating the accounts and making payments for the mail service thereon, why could not the accounts be restated at any time, and especially during the continuance of such service ? And if overpayments had been made, why could not the amount be withheld from any moneys due to the claimant without regard to the character of the indebtedness of the United States to the claimant, or to the manner in which it accrued ?
    It may be remarked that it is the duty of the executive officers of the Government to withhold moneys due under the circumstances. And in the present instance the Government would have a right of action to recover back under section 4057 of the Revised Statutes.
    Upon this point we shall simply call attention to the decisions of the courts, some of which refer to the general principles of law and others apply to the question immediately involved in this case. We see no difference in the accounts of the claimant in this respect and the accounts of other persons who deal with the Government.
    The claimant is not entitled to derive any distinctive benefit upon the ground that its claim is founded upon a contract in the mail service. Its accounts are subject to the same rules of law as the accounts of Army officers and contractors in the District of Columbia, etc. The authorities relied on are as follows : Fenemore v. United States, 3 Dali., 357; Moses v. McFar-lan, 2 Burr., 1005; Northrop v. Graves, 19 Conn., 548; McEl-rath v. United States, 102 U. S. R., 439; Same v. Same, 12 O. Ols. R., 201; Looney v. District of Columbia, 19 O. Ols. R., 233; Charles v. United States, ibid., 318; Neitzy v. United States, 17 O. Ols. R., Ill; Barnes v. District of Columbia, 22 O. Ols. R., 393; Bonafan v. United States, 14 O. Oís. R., 492; United States v. City Bank, 6 McLean, 130; United States v. Bur chard, 125 U. S. R., 176.
    
      Uo protest or objection was presented to the Post-Office Department against the deductions charged up against the claimant on account of its predecessor. The question is raised specifically in this court for the first time. There was no other railroad or corporation with which the Department could deal ■in this matter. The Alabama and Chattanooga Railroad had merged in and become the claimant railroad. The claimant had become invested with the former road, franchises, and the mail contract. It was entitled to whatever was due its predecessor on account of carrying the mails, and did it not become, therefore, liable for its overpayments'?
   ÍTott, J.,

delivered the opinion of the court.

The railroads of the United States considered as mail carriers fall into these classes:

The first are those which have not been aided by the Government in any way, and as to them it is settled by decisions too numerous to be cited that their service is voluntary; that is to say, that they are under no obligation to the Government to carry the mail and may decline the service if they will, but that if they do perform, it must be upon the terms and conditions prescribed by the statutes and regulations of the Post-office Department or under an express contract within the limitations imposed by law.

The railroads of the second class are popularly known as illand-grant roads;” that is to say, roads which have been aided by grants of public lands upon a condition which, in substantially the same terms, applies to all of them, “ That the United States mail shall be transported over said roads, under the direction of the Post-office Department, at such price as Congress may, by law, direct: Provided, That until such price is fixed by law, the Postmaster-General shall have the power to determine the same.” As to these roads it is likewise well settled that their service is obligatory; that is to say, they are not at liberty to decline to carry the mails if dissatisfied with the terms prescribed by Congress or the Postmaster-General; and, conversely, their involuntary service is not a waiver of any legal right, nor an acquiescence in the terms imposed by the Postmaster-General if in excess of their legal obligations.

The railroads of the third class are roads generally known as belonging to the Pacific Railway system, roads which have been aided by grants of public land and the guaranty of bonds. The conditions upon which these roads were aided are that they shall carry the mails at fair and reasonable rates; that their earnings for service to the Government shall be applied upon the bonds, and that the bonds shall “ constitute a first mortgage on the whole line of the railroad,” u in consideration of which said bonds may be issued.” As to them, it has been settled since the decision of the Supreme Court in the Union Pacific R. R. Case (104 U. S. R., 662) that all mail service is rendered under and subject only to the original act, and is not subject to the restrictions prescribed by later statutes for other roads.

The railroad in the present case is a continuous line made up in part of land grant and in part of unaided road. It runs from Chattanooga, in Tennessee, to Meridian, in Mississippi. For the portions of it which lie in Georgia and Tennessee no grant was made. For the portions which lie in Alabama and Mississippi the road was aided.

Since the decision in the case of The United States v. The Kansas Pacific Railway (99 U. S. R., 455), it can not be doubted that the obligation of a road of the Pacific system extends no further than that portion of its line for which it has received aid; and the leading question in the present case is whether that principle is not equally applicable to land-grant roads.

In the Kansas Pacific case the statute says that the bonds shall “ constitute a first mortgage on the whole line of the railroad” “in consideration of which said bonds may be issued.” In this case the statute says that the grant shall be “ to aid in the construction of the following roads in said State” (Alabama or Mississippi), and that “ the mail shall be transported over said roads ” “ at such price as Congress may by law direct.” In the one case the first mortgage created by the-statute was limited to the road “ in consideration of which” “ the bonds were issued; ” in the other the grant was declared to be to aid in the construction of roads “ in said State,” Alabama or Mississippi. In the former case it was held that Congress could not have intended to impose a lien upon a portion of the road which had not constituted a part of the consideration for which the subsidy was given; in this it is equally clear that a grant of land to the State of Alabama or Mississippi, to aid in the construction of roads within that State, can not be construed to extend the conditions of the grant to an unaided portion of a road constructed in another State. In both cases there is in fact one ownership and one line of road ; but so far as these relations with the' Government are involved there are two owners and two distinct roads. That the two owners are one and the same person, and that the two roads form one transit line, can not affect the question of legal right and liability.

If the case stopped at this point, there could be, in the opinion of the court, but one answer to the question whether the unaided portions of the claimants line are subject to the limitations set upon land-grant roads. In the absence of any other statute it would have to be held that as to the land-grant portions the rate of compensation is that which Congress or the Postmaster-General may have fixed, and as to the other that theclaimantwas free toenterinto an express contract, orif none existed, to recover in quantum meruit for the service rendered'. But as to these latter portions of the road it was unquestionably within the power of Congress to set a limitation upon the price which should be paid for such service, and thereby to leave the public ageDt, the Postmaster-General, without authority to-bind the defendants for any greater price, either by entering into an express contract or by accepting the claimant’s services without one; and it was equally within the discretion of Congress to fix different rates for different roads or classes of roads, and in so doing to say that if part of a mail carrier’s line was a land-grant road the remainder ot the line should be restricted to the same compensation. . Such a restriction would not bind the carrier to carry the mail, but it would bind the Postmaster-General not to incur a greater liability, and would be notice to-the road at what point his authority to bind the Government by contract terminated.

The questions, therefore, in this case are whether Congress have set a limit to the responsibility of the Government for service rendered by the unaided portions of the claimant’s road, and whether that limit is defined by the first or the thirteenth section of the Act 12th July, 1876 (19 Stat. L., p. 78).

The first provision of the act is general, and applies in terms to “ railroad routes” and to “ all railroad companies:”

“That the Postmaster-General be, and he is hereby, authorized and directed to re-adjust the compensation to be paid ■from and alter the first day of July, 1870, for transportation of mails on railroad routes by reducing the compensation lo all railroad companies for the transportation of mails 10 per cent, per annum from the rates fixed ami allowed by the first section of an act entitled ‘An act making appropriations for the service of the Post-Office Department for the fiscal year ending June 30, 1874, and for other purposes,’ approved March 3,1873, for the transportation of mails on the basis of the average weight,” §1.

The second is specific (§ 13), and is in these words:

“ That railroad companies whose railroad was constructed in whole or in part by a land grant made by Congress on the ■condition that the mails should be transported over their road at such price as Congress should by law direct, shall receive •only eighty per centum of the compensation authorized by this -act.” (§ 13.)

The obscurity of the act, as in all cases of obscurity, whether ■of statutes or of contracts, arises from the omission of a few words. If to the section had been added “ upon both portions of the road, whether aided or unaided,” we should know what the legislative power intended; and conversely if the section had said “ upon so much of a road as was aided by a land grant,” there would have been no controversy between the parties.

On the one hand the literal import of the language inclines to a conclusion adverse to the claimant; on the other, the intent •of the statute as a whole being to establish one compensation for railway mail carriers in general and a reduction for the land-grant roads specifically, it does not seem probable that Congress intended to mingle the two together arbitrarily and extend the reduction to a portion of a railroad where no legal or equitable ground for reduction existed. In the consolidation and extension of our railroad systems it easily may be that a company with a thousand miles of track has absorbed a land-grant road of fifty miles, and it can hardly be supposed that Congress intended to reduce the compensation on 950 miles of track to 80 per cent,, while alongside of it a rival road of a thousand miles is to receive 100 per cent.

In this uncertainty there is an aid that a court may invoke, which is the construction that has been given by the Executive Department charged with the interpretation and administration of the statute. The Postmaster-General in office when this act was passed construed the thirteenth section as the Supreme Court has construed “ the whole line of the railroad ” in-the Kansas Pacific Railroad case (supra); that is to say, he held' that where a road had been aided “in whole or in part” the reduction of compensation was to be in whole or in part. A second Postmaster-General came into office, and then a third and a fourth, a fifth and a sixth, and still it remained the settled construction that where the land grant had been in whole or in part, the reduction should be in whole or in part. The accounting officers of the Treasury also entertained the same opinion and audited payments on the unaided portions of these roads at the rates prescribed by the first section of the act.. For nine years both parties rested content with this interpretation of the law, Congress bypassing no act to correct the erroneous construction, if it was erroneous, the railroad companies by voluntarily carrying the mails over the unaided portions of their roads.

In 1885, however, a seventh Postmaster-General gave the reverse construction to the statute, and, moreover, held that the practice of his predecessors was illegal, and that the payments which they had made for past services should be re-opened, and the excess be deducted from the future earnings of the roads. Accordingly, in this case the Post-Office Department charged the claimants with money which had been allowed and paid to them by the Department under previous Postmasters-General, and the charge rested entirely upon a new construction given by the same Department to the same existing law.

Such changes in the construction of a working statute under which men are rendering service and earning compensation through every day of the year are greatly to be deplored, whether the change be for the better or for the worse; and they are especially to be deplored where the new construction will become or can be made retroactive. Every man is bound to know the law and the true interpretation thereof, but where the responsible officers of the Government give a construction to a statute, upon the faith of which a contractor renders a service and receives his pay, can the Government subsequently say that the payment was illegal, and open the transaction, and recover back the money ¶ In the case of disbursing officers it lias been held that where payments were made in pursuance of the rulings of accounting officers, the Government, as between tbe disbursing officer and itself, is estopped from setting np that the payments were illegal (Hartson's Case, 21 C. Cls. R., 451). Is there any difference in principle between the ease ■of a disbursing officer who paid out money on the faith of the Treasury Department’s rulings and of a carrier who carried the mails on the faith of the Postmaster-General’s construction of a statute? Ordinarily the construction given to a statute by a Department is favorable to the Government; that is to say, favorable to itself and unfavorable to the other party, who is ■seeking to draw upon its limited appropriations. liet, where there is a foundation of ambiguity to stand upon the courts have not hesitated to say that the contemporaneous construction by executive officers called upon t > interpret a statute, and ■appointed to carry it into effect, is entitled to great respect, and ought not to be overruled without cogent reasons, although a different construction might be given to the statute if the question were altogether new. (Brown v. The United States, 113 U. S. R., 568.)

Upon the authority of that case the court is of the opinion that the doubtful terms of the statute should be resolved in favor of the claimant.

The judgment of the court is that the claimant recover the sum of $4,343.61, and that the counter-claim of the defendant be dismissed.  