
    NORTHERN PACIFIC RAILROAD CASE.
    The Northern Pacific Railroad Company v. The United States.
    
      On the Proofs.
    
    
      The claimants are lessees of an ordinary land-grant road. They are also owners of a road where the condition of the grant is that they shall not “ charge the government higher rates than they do individuals.” In 1877 a quartermaster enters into a contract with them for government freight going over their entire line made up of both roads. One-half of their earnings under this contract is withheld at the Treasury. It appears on the trial that the contract rate is about what the court luis found is a fair compensation for land-grant roads, and that itwas not higher than the rate charged individuals on the other road.
    
    I.The Act 3d March, 1875 (18 Stat. L., 453), took away from the Quartermaster-General the power to agree upon rates for transportation of government freight on land-grant railroads ánd left this court to determine the principles upon which such demands should ho determined.
    II.The prohibition of the statute extends to lessees operating a land-grant ' road.
    III. A contract made since the statute by a quartermaster with lessees operating a land-grant road, for the transportation of government freight over.it, is absolutely void.
    IV. Where the court is satisfied that the amount earned under a contract absolutely void by a land-grant road is about what the road would recover under the rule laid down in the Atchison Bailroad Case (ante, p. 126), the maxim de minimis non curat lex will be applied.
    Y. Where the court is satisfied that a contract fixing the rates for the transportation of government freight was made and has been carried out iu good faith, it will not go into the examination.of voluminous testimony to ascertain whether in trifling particulars the rates charged exceeded the legal limitation attached to the grant of the road.
    VI. The invalidity ofa contract, oven by statute, does not destroy the whole if the remainder, being legal and distinct, is capable of separation from the illegal provision.
    
      The Reporters’ statement of tbe case:
    The following are the facts of this case as found by the court : I. The claimant is a railroad corporation created, organized, and doing business under and by virtue of an act of the Congress of the United States entitled “An act granting lands to aid in the construction of a railroad and a telegraph line from Lake Superior to Puget Sound, on the Pacific coast, by the northern route,” approved July 4, 1864; and at and prior to the times when the contracts hereinafter mentioned were entered into between the claimant and the United States, and the transportation of freight and passengers hereinafter specified, the claimant was engaged in the business of transportation of freight and passengers for hire between Saint Paul and Duluth, in the State of Minnesota, and Bismarck, in the Territory of Dakota, and was the owner of the line from Duluth to Bismarck, which had been constructed and was operated by the claimant under the act of Congress aforesaid, which act contained the following provision in regard to the charges that claimant might make to the United States, to wit: “ Provided, That the said company shall not charge the government higher rates than they do individuals for like transportation and telegraph service,” and no other restrictions.
    II. In 1877 Saint Paul was connected with the claimant’s railroad at a point known as Thomson, 24 miles from Duluth, by a railroad known as the Lake Superior and Mississippi Bailroad, which had received donations of land under the condition that military stores of the United States should be transported thereon free of toll or other charge for the use of the road. The length of said connecting road was 131 miles.
    In 1878 Saint Paul was connected with the claimant’s railroad at another point, known as Brainerd, 115 miles from Duluth, by a railroad or railroads, 136 miles in length, which was operated from Sauk Eapids to Brainerd, a distance of 68J miles, by the claimant, and which road or roads had received like donations on the like condition.
    In 1877 and 1878 there was no railroad connection between Saint Paul and Chicago which was not composed in part of a railroad which had received like donations on the like conditions.
    In said years Bismarck, on the Missouri Biver, was the western terminus of claimant’s railroad, being distant 425 miles from Thomson and 335 miles from Brainerd; Morehead and Jamestown, stations on said road, distant, respectively, 230 and 323 miles from Thomson and 138 and 232 miles from Brainerd.
    III. On the 19th day of March, 1877, the following correspondence was bad between the general business agent of the claimant and Benjamin C. Card, assistant quartermaster United States Army and chief quartermaster Department of Dakota, namely:
    “Northern Pacific Railroad -Company,
    “Office of Gen’l Business Agent,
    
      “St. Paul, Minn., March 19, 1S77.
    “General B. C. Card,
    “ Chief Q. M. Department of Dalcota, St. Paul, Minn. ;
    “ General : This company will transport military supplies during the coming season of navigation, viz, from April 1st to November 1st, 1877, between the points named below, at the following rates per one hundred pounds, regardless of classification, it being clearly understood that no deduction shall be made on account of land grants, but that full payments shall be made for such transportation:
    “Between Saint Paul and Moorhead, per 100 lbs., 84 cents.
    “Between Saint Paul and Jamestown, per 100 lbs., $1.60.
    “Between Saint Paul and Bismarck, per 100 lbs., $1.00.
    “ Between Chicago and Bismarck, per 100 lbs., $1.20.
    “ Officers and men on the line of the Northern Pacific Bail-road to be carried at 5 cents per mile, and when in squads of twenty or more, at 4 cents per mile.
    “ Yery respectfully, yours,
    “G. G. Sanborn, G. B. AN
    
    “Headquarters Department of Dakota,
    “Office of Chief Quartermaster,
    
      “St. Paul, Minn., April 13,1877.
    “Mr. G. G. Sanborn,
    
      “General Business Agent,
    
    
      “Northern Pacific Railroad, St. Paul, Minn.:
    
    “Sir: You are respectfully informed that your offer of the 19th of March last, to transport military sujiplies during the present season, viz, from April 1st to November 1st, 1877, between the points named below, at .the following rates per 100 pounds, regardless of classification, and without deduction on account of land grants, has been accepted, with the understanding that if at any time the tariffs of the Northern Pacific Bail-road and the Lake Superior and Mississippi Railroad, or other roads over which the work may be performed, shall, after deduction on account of land grants,, bring the rates below those herein offered, then the government may take advantage of such tariff rates. And also that the proposition be accepted, subject to the contingencies of future legislation:
    “Between St. Paul and Moorhead, 84 cents per 100 lbs.
    “Between St. Paul and Jamestown, $1.60 per 300 lbs.
    
      “Between St. Paul and Bismarck, $1.00 per 100 lbs.
    “Between Chicago and Bismarck, $1.20 per 100 lbs.
    “ Officers and men on the line of the Northern Pacific Bail-road to be carried at 5 cents per mile, and when in squads of twenty or more at 4 cents per mile.
    “Yery respectfully, your obedient servant,
    “Benjamin C. Card,
    
      “Bv’t Brig. General, Chief Quarter master. ”
    
    And on the 14th of March, 1878, the following propositions were made by the claimant to the United States for the transportation of military supplies for the defendant between April 14, 1878, and the 31st day of October, 1878, which were accepted by Charles H. Tompkins, deputy quartermaster-general United States Army and chief quartermaster of the Department of Dakota, namely:
    “Northern Pacific Bailroad Company,
    “ General Freight and Ticket Office,
    “ Saint Paid, Minn., March 14,1878.
    “Gen. Chas. H. Tompkins,
    “ Chief Quartermaster, Deft of Dalcota, St. Paul, Minnesota:
    
    “Dear General: This company will transport military supplies from the date of your acceptance of this proposition to October 31st,-1878, between the points named below, at the following rates per hundred pounds, regardless of classification, it being clearly understood that no deduction shall be made on account of land grants, but that full payment shall be made for such transportation:
    “Between Duluth and Bismarck, at $1 per 100 pounds.'
    “ Between St. Paul and Bismarck, at $1 per 100 pounds.
    “Between Chicago and Bismarck, at $1.10 per 100 pounds.
    “ Officers and men on the line of the Northern Pacific Bail-road to be carried at five cents per mile.
    “Yours, respectfully,
    “ G. G. Sanborn, Agent.”
    
    “ Headquarters Department oe Dakota,
    “ Office Chief Quartermaster,
    “ St. Paul, Minn., May 24,1878.
    “Mr. Sanborn,
    
      “Agent N. P. B. B. Co. :
    
    “ Sir : The proposition of the Northern Pacific Bailroad Company, dated March 14,1878, for transportation of government freight and passengers from date of acceptance, for the season of 1878, was accepted by the chief quartermaster of the department on April 11, 1878. From and after that date the rates in your proposition should govern.
    “ Bespectfully, &c.,
    “W. G. Evans, Chief Cleric.”
    
    
      “NoetherN Pacific Railroad Company,
    “General Freight and Ticket Office,
    
      uSt. Paul, Minn., October 19, 1878.
    “Gen. Ohas. H. Tompkins,
    “ Ohief Quartermaster,
    
    “Z>ep’i of Palco ta, IT. 8. A., St. Paul, Minnesota:
    
    “Dear Sir: This company will transport military supplies from November 1, 1878, until March 31, 1879, between the points named below, at the following’ rates per hundred (100) pounds, regardless of classification, provided we receive your acceptance of the same on or before the 31st inst.:
    
      
    
    “And the officers and men to be carried upon the line of this company at five cents per mile.
    “Tours, respectfully,
    “G. G, SANBORN.”
    “Headquarters Department of Dakota,
    “Office Chief Quartermaster,
    
      u St. Paid, Minn., Oct. 23, 1878.
    “Mr. G. G. Sanborn,
    “ General Preight ancl Passenger Agent,
    
    
      “Northern Pacific Railroad Go., St. Paul, Minn.:
    
    “Sir: Your communication of the 19th inst., submitting a proposition for the transportation of military supplies, officers, and men over the line of the Northern Pacific Railroad, from November 1, 1878, to March 31, 1879 — that is to say:
    
      
    
    
      per one hundred pounds for whole distance,.regardless of classification as to freight, and five cents (.05c.) per mile for officers and men carried upon the line of your road, is received.
    “You are respectfully informed that the proposition has this day been accepted by me, to take effect November 1, 1878.
    “It should be understood, however, that if at any time during the period covered by this proposition the tariff rates of the company shall be lower than the rates named herein, the government may take advantage of said tariff rates.
    “Very respectfully, your obedient servant,
    “Chas. H. Tompkins,
    
      “Deputy Quartermaster-Gen., U. S. A.,
    
    
      “ Chief Quartermaster.”
    “Northern Pacific Eailroad Company,
    “General Freight and Ticket Office,
    
      “St. Paul, Minn., June 3,1878.
    “Gen. Chas. H. Tompkins,
    
      “Deputy Quartermaster-General, U. 3- A.,
    
    “ Chief Quartermaster, St. Paul, Miwn. ;
    
    “Dear Sir: Your favor of May 31, requesting this company to submit a proposition for the transportation of passengers and stores for the United States, during the season of 1878, from St. Paul to Fargo, and Jamestown, D. T., received. In compliance with the same, I beg leave to make the following proposition :
    “This company will transport all government supplies and freight from the date of receipt of your acceptance of this proposition until October 31,1878, between the points named below, at the following rates per hundred pounds, regardless of classification, it being clearly understood that no deduction shall be made on account of land grants, but that full payments shall be made for such transportation: Between St. Paul, Minn., and Jamestown, D. T., 65 cents per 100 pounds; St. Paul, Minn., and Fargo, D. T., 45 cents per 100 pounds.
    “And will transport officers ,and men as follows, viz:
    “st. faul to jamestown.
    “St. Paul to Sauk Eapids, St. P. and P. Eailroad land-grant certificate. $3 65
    “Sauk Eapids to Brainerd, W. E. E. Div. N. P. land-grant certificate. 3 05
    “Brainerd to Jamestown, N. P. E. B., cash five cents per mile .,. 11 65
    “st. paul to fargo.
    “ St. Paul to Sauk Eapids, St. P. and P. Eailroad land-grant certificate.$3 65
    
      “ Sauk Bapids to Brainerd, W. B. B. Div. N. P. land-grant certificate...$3 05
    “Brainerd to Fargo, N. P. B. B., cash, five cents per mile. 6 95 “Very respectfully, yours,
    “G-. G-. Sanborn,
    “ General Freight mid Passenger AgentP
    
    “ Headquarters Department oe Dakota,
    “ Oeeioe Ohiee Quartermaster,
    “ St. Paul, Minn., June 4,1874.
    “ Mr. G. Gr. Sanborn,
    “ General Freight and Passenger Agent,
    
    “ Northern Pacific Railroad Go., St. Pcml, Minn.:
    
    “ Sir : A cknowledg'ing tbe receipt of your communication of June 3,1878, submitting a proposition (requested by this office under date of May 31st, 1878) for tbe transportation of passengers and stores during the present season, from date of acceptance until October 31st, 1878, from St. Paul to Fargo, and from St. Paul to Jamestown, regardless of classification as to freight, you are respectfully informed that said proposition is this day accepted by the department, it being understood that the rates named in the proposition are less than the published tariff rates, with land grant deducted.
    “ The proposition of June 3d, is accepted, with the proviso that if at any time the tariff of the Northern Pacific Bailroad Company and connecting lines over which the rates apply shall, after deduction on account of land grant, bring the rates below those now offered, the government may take advantage of such tariff rates; also, that this proposition is accepted subject to the contingencies of future legislation.
    “Very respectfully, your obedient servant,
    “ Chas. H. Tompkins,
    
      “Deputy Qr. Master Gen’l, V. S.A., Chief Quartermaster.”
    
    IV. Under the said agreement for 1877, the claimant transported military supplies and rendered accounts therefor as follows:
    From Saint Paul to Moorhead, 4,048 pounds contract freight.-. $34 00
    From Saint Paul to Jamestown, 14,838 pounds contract freight. 237 40
    From Saint Paul to Bismarck, 111,650 pounds contract freight.. 1,116 50
    From Chicago to Bismarck, 1,281,782 pounds contract freight.-.... 15,365 93
    From Thomson to Bismarck, 100,000 pounds contract freight. 585 00
    Fifty per centum of the said accounts, or $8,669.39, has been paid to claimant by the defendants.
    
      Under the said agreement for 1878 the claimant transported military supplies and rendered accounts therefor as follows :
    From Saint Paul to Bismarck, 638,013 pounds contract freight... ..$6,380 13
    From Saint Paul to Moorhead, 76,694 pounds contract freight. 345 12
    From Saint Paul to Jamestown, 74,542 pounds contract freight. 484 52
    From Chicago to Bismarck, 1,595,935 pounds contract freight. 17,555 28
    Fifty per centum of the said accounts, or $12,382.26, has been paid to claimant by the defendants;
    V. At no time during the existence of said contracts did the United States, or any officer thereof, take advantage of or propose or offer to have such transportation done at the tariff rates of the claimant, or at any other rates than those fixed in the foregoing contracts, and that in the making.
    VI. During the time that said transportation was performed, the cost of the same over the Northern Pacific Eailroad alone, between Duluth, Thomson, Bismarck, and intermediate points, computed at the tariff rates of the claimant charged individuals for like transportation, would have exceeded the cost of transporting the same at the contract rates for the entire distance for which said transportation was performed, including the Northern Pacific Eailroad, the Lake Superior and Mississippi, and the Saint Paul and Pacific lines.
    VII. The claimant agreed with the Lake Superior and Mis- ’ sissippi Eailroad that 20 per centum of the through rates from Saint Paul to Bismarck, and their mileage proportion of the rate to way stations on the claimant’s road, received by the claimant under the said agreement of 1877, should be paid to said land-grant road for the part of the service done thereon.
    The claimant made a like agreement or apportionment as respects the land-grant railroad connection between Saint Paul and Brainerd under the agreement off 1878.
    
      Mr. George Gray (with whom was Mr. JohnB. Sanborn) for the claimants:
    The contracts are for the transportation of military stores and supplies by the claimant, and for the payment therefor by the United States of fixed rates of compensation; and, being so, they aro in all respects legal and binding on both parties thereto. (Atchison, Topeka & Santa, Fé B. B. Co. v. The United States, 12 C. Cls. R., 206, 304.)
    The only restriction upon the claimant or upon the defendant, its officers or agents, in respect of contracts for transportation, and the compensation to be paid therefor (aside from the common law principles that the contracts must be lawful and the compensation reasonable),-is as follows: “The said company” (the claimant) “shall not charge the government higher rates than they do individuals for like transportation and telegraph service.” (13 Stat. L., 368-369.)
    The contracts show that they were made and entered into with special regard to this provision; for in every one of them it was expressly stipulated that if, at any time, the tariffs of claimant’s railroad and those of other roads over which the work would be performed or the rates apply should, after deduction on account of land grants, bring the rates below the contract rates, then the government might take advantage of such tariff rates.
    When the contracts were respectively made and entered into, the tariff rates of the claimant’s railroad, added to those of other roads over which the work has to be performed or which might apply, after deduction on account of land grants, were much higher than the rates stipulated for in the contracts and charged to the United States. And at no time while the services contracted for were being performed did the tariff rates of said railroads, after deduction on account of land grants, bring the rates below (or so low as) the contract prices. Hence the accounting officers of the government settled and adjusted the accounts, for the services performed by the claimant, at the contract instead of the tariff rates.
    The rate for the whole distance between Saint Paul and Bismarck, over the claimant’s railroad and other roads, was determined on, fixed, and agreed, by adding the tariff rates of the claimant’s railroad only, on all classes of freight, and dividing the sum by the number of classes. This gave a rate, without classification, for the entire distance, not higher than that charged individuals for like transportation over the claimant's road alone, and no charge whatever for the transportation over the conditional land-grant lines.
    This shows conclusively that ample, and more than ample, deduction was made by the contracts of the parties, for the land-grant portions of the entire line of transportation, and brings this case fully within the rule laid down by this Court in A., T. & 8. F. B. B. Go. v. U. 8., 12 C. Ols. E., 296; and that the rates of compensation fixed by the contracts are, to say the least, no more unfavorable to the government than those implied by law in the absence of an express contract.
    The words “tariff rates” and “tariffs” employed in all these contracts have reference to the ordinary and regular rates of the claimant’s road and those of the other roads over which the transportation contracted for was to be performed in part, they being the local and joint freight rates or tariffs of the claimant in connection with the other roads mentioned. They do not include or refer to special, exceptional, or isolated instances. Not only in the etymological and ordinary signification of the word “tariff,” but also, and especially in its technical sense, it means the generally known andpublished rates. Itwasso understood by the parties to these contracts.
    That construction is not against law. As before shown, the only restriction imposed was that the claimant shall not charge the government for like transportation service higher rates than they do individuals — not any individual. The claimant cannot be compelled to transport government troops, supplies, or property without charge, or for one-third the ordinary rates, because it may have carried a poor emigrant with his family and effects for nothing or at one-third the usual charge. (Johnson v. P. & P. B. B. Go., 16 Fla., 623.)
    A Massachusetts statute required . every railroad to give to all persons reasonable and equal terms. A railroad company charged A for a season ticket between certain stations a reasonable price, and then sold to certain other persons season tickets for the same term between the same stations for one-half the price he paid. A brought suit against the railroad company to recover half .the amount paid by him. The court held that as the railroad company exacted from the jilaintiff only the regularly-established price for the season ticket which he bought, and as there is no evidence that the price was unreasonable, the fact that for special reasons, which do not appear, it sold certain individuals like tickets for half that price did not constitute a violation of the statute. (Spafford v. Boston Maine B. B. Go., Supreme Judicial Court of Massachusetts, February 27th, 1880; “The Reporter,” Yol. IX, No. 13, page 407, and Albany Law Journal, Yol. 21, No. 16, page 304.)
    The words “like transportation ” or “ like transportation service” signify not merely similarity in quantity, weight, and bulk, but, also, in quality, speed, receiving, discharging, &c.; in brief, similarity in all the circumstances which shipper and carrier naturally take into consideration in determining, or agreeing on, the price to be paid for the service.
    Full deduction on account of land grants was made by the parties in making and entering into the contracts. It was so made by the agent of the claimant.
    Not only had all proper allowances and the deduction required by law, if any, been made, but the whole amount for the transportation over the road or roads liable thereto had been deducted and allowed by the parties in arriving at and fixing the prices named in the contracts.
    The claimant was to receive, and did receive, the property as a common carrier, and had possession and control of the property for transportation under a lawful contract, and therefore, although the transportation contracted for embraced the carriage of the property for a short distance over a conditional land-, grant road, the case does not come under the provision of the act of Congress prohibiting the payment of money to any railroad company for the transportation of any property of the United States over such road, unless, indeed, the contract was made for the benefit of the inhibited railroad, and with the design of evading the provision of the statute. In this case it cannot be claimed that the contracts were made for the benefit of the conditional land-grant road.
    The presumption must be, in the absence of fraud, that the officers of the government obtained more favorable terms and lower rates under the through contracts than could be effected by separate express or implied contracts with each of the roads constituting the entire line, and with full deduction of 50 per centum from the rates charged individuals for like service on such portions of the line as are conditional land-grant roads. The right of the government to have its property carried under separate contracts with each road is not questioned; but it is respectfully submitted that the United States, or its officers, are not compelled to exercise such right to its own detriment, but may make such through contracts as give the government the actual benefit of the legal allowance, or, as in the case at bar, much more than any deduction or allowance required by law.
    The parties being competent to contract, and having agreed on the prices to be paid for the services performed, and in the fixing of said prices having had due regard to the provisions of law affecting or regulating the same, and there being no mistake of fact, the defendant is bound to pay the contract prices, and cannot legally or equitably claim any deduction therefrom.
    The officers of the executive department of the government erred in withholding payment of fifty per centum of the amount due claimant under said contracts for transportation in 1877 and 1878.
    The reason alleged for withholding payment is that Congress has prohibited it without resort to this court (see pages 77, 78, 79, of the Record).
    We respectfully submit that the provision in the act of Congress so construed by the executive officers of the government has no application to this case, nor was it intended to apply to such case.
    . As in the construction of a statute all others in pari materia may be regarded, the former enactments on this subject are here referred to.
    In the regular Army appropriation bill for the year 1874, Congress adopted a provision substantially as above, but it was made applicable only to the moneys thereby appropriated. (18 Stat. L., Part 3, p. 74, and the act was approved June 16,1874.) At the same session an act was passed entitled “An act making appropriations to supply deficiencies for the fiscal years ending •June thirtieth, eighteen hundred and seventy-three and eighteen hundred and seventy-four, and for other purposes,” approved June 22, 1874, in which it was “ Provided, That no part of the sum appropriated by any provision of this act shall be paid to .any railroad company which has received a grant of lands on the condition that its road should be a public highway for the transportation, of the property and troops of the United States free from toll or other charge.” (18 Stat. L., Part 3, p. 138.)
    The provision last above quoted, although in an act not approved until six days after the act making the regular Army •appropriations, may be regarded as the initiative of the legislation perfected and made permanent in the act of March 3, 1875.
    It is apparent that the provision in the “ deficiency act” of 1874 did not prohibit payment to a railroad company not the owner of, but operating under a lease, contract, or other arrangem ent, such conditional land-grant railroad. Hence the employm ent of the words in the regular Army appropriation bill for 1874, and in the act of March 3, 1875, “That no money shall hereafter be paid to any railroad company for the transportation of any property or troops of the United States, over any railroad which in whole or in part was constructed by the aid of a grant of public land on the condition,” &c.
    The words “ any railroad company” are to be limited to such company either owning or operating the conditional land-grant road, and they cannot be applied to any other. Because, the intention of Congress is manifested by the other enactments in pari materia, and the “mischief” and the “remedy” so limit them; because “ general words may be restrained by particular words in a subsequent clause” (Covington v. McNichols, 18 B. Mon., 262); and “ general words must be restrained unto the fitness of the matter.”
    In the act of March 3,1875, it is provided that “such railroad” may bring suit in the Court of Claims. While it is admitted that this language is inapt, yet, plainly, it can have no meaning except as applied to the railroad company owning or operating “such railroad.” The language is: “But nothing herein contained shall be construed as preventing any such railroad from bringing a suit in the Court of Claims for the charges for such transportation, and recovering the same, if found entitled thereto, by virtue of the laws in force prior to the passage of this act.” “ Such” railroad is the railroad previously mentioned in the act; that is, the conditional land-grant road over which the property has been transported; and if “ such” railroad is not the railroad of, or operated by, the company intended by, and embraced within, the words “ any railroad company,” in the first part of the clause, the remission to the court is unmeaning and absurd; for it is only the company (“any railroad company”) that performs the service that is to be paid. The land-grant road, in such cases as the one at bar, has performed no service for the government; there is no contract, expressed or implied, between it and the government; and it has, and can have, no claim against the United States. And, beyond question, it is only the said conditional land-grant railroad (or rather the railroad company, or the company, person, or persons operating it) that is remitted to the court.
    
      Mr. Assistant Attorney-General Svmons for the defendants:
    The first question arising on these agreements is as to the effect on them of the proviso in the Appropriation act of March 3, 1875. (18 Stat. L., 453.)
    The legal controversy between the government and the land-grant roads thus brought before this court, and the results to this date, are familiar. There can be no dispute that the quartermasters in 1877 and 1878 had no power to make a direct agreement with the land-grant roads here involved that they should receive a certain or any sum for the transportation performed by them in those years; nor was there power in the Treasury officers to pay such an account. The question is if that result could be indirectly accomplished through a contract with a third party. The two agreements show that both parties knew the law and undertook to stipulate that it should not affect the settlement between them. This was, on the face of it, invalid. The only lawful response of the quartermaster to the proposed agreement was: “It appears from your proposal that the service is to be performed in part by land-grant roads, and that payment therefor to such roads is contemplated. I am prevented by law from agreeing with them or with you that they shall be paid therefor.”
    That the parties acted in good faith, and that the arrangement was intended to be, or in fact was, advantageous to the defendants, does not cure the defect; nor is there a sound analogy in the illustration of a contract with an express company running over a land-grant road, for there is nothing in the land-grant condition which entitles the defendants to express service on such a road.
    To test the matter by giving the claimant the benefit of the strongest possible Anew of it in his favor, we will assume that the proposition was as follows: “We offer to carry your stores between points including a land-grant road for less than the local tariff on our own road, so that the pay for the whole distance shall not exceed what we might charge for our part of the service. You will thus appear to pay nothing for the land-grant service, though we shall have to pay for it out of what we receive.” Whether this would be really as advantageous as it seems would depend on circumstances; but if it were, we submit; the quartermaster could only answer, “I would accept, but the law prevents.”
    If the quartermaster could not agree for indirect payment of land-grant companies, the question arises how far the agreement as a whole is vitiated by what was done in that regard, and what is the claimant’s remedy.
    If the subject-matter is divisible, the general rule is, as we understand, to reject only the invalid part of an agreement. On this principle the claimant would recover for that portion of the service performed on its own or a non-land-grant road a ratable proportion of the contract price, or such proportion as it might prove to belong thereto.
    The fact is well established that during the contract terms, the contract rate, or that part of it pertaining to the claimant’s road, was in excess of the rate charged in many instances to individual shipxiers. Whether this was a discrimination within the prohibition of the statute depends on the relation of the parties. A common carrier having published rates for transportation, cannot in a particular case compel payment of more than the public would have to pay for like service. There was no danger, therefore, that defendants would be charged more than the ordinary published rates. • On the other hand, it appears that the statute donates to the claimant the most enormous land-grant ever given in our history to a corporation, and the only return exacted is the stipulation in question.
    Congress was well advised of the practice of such corporations of discriminating by special rates, drawbacks, rebates, and the like methods in favor of individuals from their ordinary published rates, and was equally aware of the tendency in transactions with the government to charge the highest allowable rates for every service. Is it conceivable that Congress was merely enacting the absurdity that the road should not charge more than the highest allowable rates, when there was the strongest reason on account of the land-grant for exacting that the government should have the benefit of the lowest rates given to other parties 1
    We willingly concede that the stipulation should be reasonably construed, and that if for charitable or other peculiar reasons a reduction of rates should be made on some particular occasion, and not in the ordinary course of business, the case might well be excluded from consideration; but we contend that the evidence here proves dealings which, for magnitude and general application, cannot be overlooked, and which afe of the precise description contemplated by the statute.
   Dayis, J.,

delivered “the opinion of the court:

At the trial the claimants withdrew all the allegations in their complaint and in their reguest for findings respecting transportation of goods and supplies for the Indians. They now claim only under their transportation contracts with the War Department.

In 1877 and 1878 they entered into contracts to carry passen- • gers and freight for the Quartermaster’s Department. They were the proprietors and operators of a railway from Duluth, on Lake Superior, to Bismarck, on the Upper Missouri. They agreed to take freight and passengers for the Quartermaster’s Department, and transport them from Saint Paul and from. Chicago, and from other points outside of the line of their own road, and to deliver them at Bismarck or other points on the line of their road at agreed rates. In order to do this they had to carry such freight and passengers over railroads that had been constructed in whole or in part, by the aid of a grant of public land, made upon condition that the road should be a public highway for the use of the Government of the United States, tree from all toll or other charge upon the transportation of any property or troops of the United States. The service was duly rendered according to the contract, and the vouchers therefor approved by the Quartermaster’s Department and audited at the Treasury. Fifty per cent, of the amount thus found due has been paid under the statute, and the claimants have been referred to this court for the remainder under the provision of the Act of 1875 (18 Stat. L., 453).

That act undoubtedly took away from the Quartermaster-General the power to make rates for transportation on such land-grant roads, and left us to determine the legal principles upon which to determine their settlement. We so held in the Atchison, Topeka and Santa Fé Eailroad Case, recently decided, and fixed 50 per cent, of ordinary tariff rates for similar services as a fair compensation for government transportation. Tbe contracts would therefore have been regarded as made in violation of the statute, so far as they related to transportation over the land-grant roads, if they had been made with the companies owning the land-grant roads.

The language of the statute is, “ no money shall hereafter be paid to any railroad company for the transportation of any property or troops of the United States over any railroad which in whole or in part was constructed by the aid of a grant of public land on the condition that such railroad should be a public highway for the use of the Government of the United States, free from tolls or other charge, or upon any other conditions for the use of such road for such transportation, * * but nothing herein contained shall be construed as preventing any such railroad from bringing a suit in the Court of Claims for the charges for such tran spoliation.” In our opinion, Congress intended to refer all claims for government transportation over such roads to this court for adjudication. Whether it chose language broad enough to carry out its comprehensive policy we need not decide now. The claimants come directly within the literal words of the act. They are a railroad company, and they claim to have transported property and troops of the United States over such a railroad. The act does not require that the transportation should be made by the company owning the road.

So far as the Quartermaster assumed to make a contract for transportation over the land-grantroads outside ofthe claimants’ road, his act was absolutely void. It was still the duty of'the executive officers to send the claimants here for relief, and it was still our duty to ascertain and determine what was the ordinary tariff rate of the claimants for similar service, and to give them judgment for 50 per cent, of that sum, unless they had agreed to carry for less.

It is admitted that these contracts were made in good faith, and it is apparent that the parties in fixing the entire through rate took into consideration the discount on the transportation over the land-grant road. It might and probably would have been better if they had had the power to do this. But Congress has seen fit to confide that power to this court. There is enough in the record, however, to satisfy us that the amount allowed to tbe land-grant roads gave them substantially what they would have received under the rule laid down by us in the Atchison, Topeka and Santa Fé Case, and we are not disposed to disturb the agreement of the parties for this small difference. Be minimis non curat lex.

The same maxim may be applied to the request of the Attorney-General to reopen the contract rates on the transportation over the claimants’ own road. That road was also a land-grant road, but with a different provision in its charter. The claimants received their grant upon condition that they should not u charge the government higher rates than they do individuals for like transportation and telegraph service.” It is conceded that the rates charged to the government are below the ordinary tariff rates. The Attorney-General, admitting that the, contract has in the main been carried out in good faith, shows that in some cases individual shippers have had better rates than those given to the government. He contends that the government is entitled to the lowest of those exceptional rates, but he admits that if we were to go into the voluminous testimony on this point, and if w'e were to make the calculations on the claimants’ tables, which might then become necessary, the difference in the main result would be small. When a contract is admitted to be made in good faith, to have been on the whole executed in good faith, to be in its terms and in its execution favorable to the government, we do not feel disposed to go into laborious examinations of evidence, to be followed by voluminous arithmetical calculations, unless some practical result is to follow. It seems to us to be eminently a case for the application of the maxim we have already quoted. We therefore decide nothing on this point, and hold ourselves entirely free, when it shall arise in a really important form, to dispose of it as may be consistent with our views of law and justice.

One further question remains, viz, whether the contract, being invalid in part, is void as an entirety. We think not. The invalidity of part of a contract, even by virtue of a statute, does not destroy the whole, if the remainder, being legal and distinct, is capable of separation from the illegal provision. (Chit. Con., 694.) The part which is void becomes so because it conflicts with a provision of law which takes away from the Quartermaster-General the right of fixing rates. It is not voided by any reason of general public policy, or because of any immorality or surpitude in tbe contract, or from any similar cause wbicb vitiates a contract as an entirety. The government is not injured; on the contrary, it is benefited by permitting the remainder of the agreement to stand. Probably it would be still more benefited if the law would permit the whole to stand.

Judgment for the claimants for $21,051.65.

Drake, Oh. J., did not sit in this case, and took no part in its decision.  